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2003 DIGILAW 928 (MP)

Kunjbihari Bhadoria v. Kusumlata Bhadoria

2003-07-30

UMA NATH SINGH

body2003
JUDGMENT This Civil Revision impugns an order dated 7.1.2002 passed by learned I Additional District Judge, Bhind in Misc. Civil Case No. 19/1999 setting aside the decree and judgment passed ex-parte on 15.2.1999 in Civil Suit No. 1A/98. It is said that the parties to the civil revision got married on 11.2.1982 and a child was born in the wedlock on 13.12.1988. It is also said that the applicant filed a suit for divorce under section 13 of the Hindu Marriage Act on 20th April, 1995 being suit No. 39/95 which was dismissed on 31.1.1997 as the grounds raised therein were not found proved. It is also stated that thereafter a second suit was filed on 31.8.1998 exactly on same ground including desertion and the same was decreed ex-parte on 15.2.1999 on the ground that the non-applicant refused to accept the summons. It is also said that the non-applicant came to know only on 12.7.1999 that she has suffered an ex-parte decree and thereafter she applied for certified copy which was received on 16.7.1999. She filed an application for setting aside the ex-parte decree under Order 9 Rule 13 of the CPC on 2.8.1999, which was allowed by the impugned order. It is urged on behalf of the applicant that the learned Court below has allowed the application without a sufficient cause as the non-applicant had definite knowledge about pendency of the suit and also the date of hearing. To substantiate this submission, it is urged that in para 3 of her statement dated 17.9.1998 before the Chief Judicial Magistrate, Bhind in a case for maintenance under section 125 CrPC the non-applicant deposed that a suit for divorce was going between the parties. That apart, it is also urged that the application under Order 9 Rule 13 of the CPC was not accompanied by application under section 5 of the Limitation Act, as the decree in question was dated 15.2.1999 and the application was filed after an inordinate delay of five months on 3.8.1999. It is further urged that once the non-applicant refused to accept the summons, there was no cause being sufficient enough to allow the application under Order 9 Rule 13 of the CPC. To substantiate the submissions further, reliance has been placed on the judgment of Hon'ble the Apex Court reported in 1984 MPWN 416 (Indira Kashyap v. K.N. Kashyap). It is further urged that once the non-applicant refused to accept the summons, there was no cause being sufficient enough to allow the application under Order 9 Rule 13 of the CPC. To substantiate the submissions further, reliance has been placed on the judgment of Hon'ble the Apex Court reported in 1984 MPWN 416 (Indira Kashyap v. K.N. Kashyap). In the said case the Apex Court did not interfere with order, rejecting an application under Order 9 Rule 13 of the CPC as no sufficient cause was shown before the District Judge and similarly also up-held rejection of an application under section 5 of the Limitation Act as no reasonable cause was shown. It is further submitted that ex-parte decree was passed on 15.2.1999 and thereafter applicant contracted a second marriage on 26.2.1999 and by setting aside the ex-parte decree, the Court below has committed error as it would have serious reflections on the second marriage of the applicant. As against that, it is urged on behalf of the non-applicant that the grounds taken in the second suit are identical to that taken in the first one and, therefore, there was no new plea for filing a suit for divorce. It is also urged that the case was fixed for 16.1.1999 and it does not appear that any summons were sent by a registered letter or by ordinary post which is said to have been refused by the non-applicant. It is further urged that, this aspect has been dealt with in detail in para 8 of the impugned order. Thus, it is submitted that non-applicant was not at all aware of listing of the case or pendency of the second suit for divorce. It is further urged that the non-applicant had made a statement about pendency of the divorce in the maintenance proceedings only in respect of earlier suit which was rejected in January, 1997. Reliance has been placed on a judgment of this Court reported in 2000 (II) MPWN 30 (Lalita (Smt.) v. Motilal). It is said that a presumption of service. when addressee refused to take letter, is rebuttable and the same can be rebutted by a statement on oath by the non-applicant to show that the non-applicant had no knowledge about listing of the case. I have heard learned counsel for the parties and perused the records. It is said that a presumption of service. when addressee refused to take letter, is rebuttable and the same can be rebutted by a statement on oath by the non-applicant to show that the non-applicant had no knowledge about listing of the case. I have heard learned counsel for the parties and perused the records. On evaluating the materials on record, I am of the opinion that the Civil Revision is sans substance and, therefore, deserves to be dismissed. Parties entered into wedlock on 11.2.1982 and till 13.12.1988, they continued with marriage peacefully. A child was also born in the wedlock. In 1995 on various grounds a suit was filed by the applicant/husband which was rejected on 3.1.1997 as none of the grounds was found proved. A second suit was filed on similar grounds and it was proceeded ex-parte only under a misconception of the fact that the non-applicant has refused to accept notice as discussed in para 8 of the impugned order. The discussion indicates that the non-applicant/wife was not even aware of the date of listing of the case on 16. I .1999 and al1eged to receive no intimation either by registered post or ordinary letter. The non-applicant is said to be educated only up to 8th Standard and is staying in rural area with her parents and thus being a rustic lady knowing nothing about law and procedure of the Court had only stated about pendency of earlier suit for divorce in a maintenance proceedings pending before the Chief Judicial Magistrate. Thus, findings of the Court below in the impugned order in respect thereof appear to be correct. Moreover, a submission that the application under Order 9 Rule 13 of CPC was not even accompanied by application under section 5 of the Limitation Act is sufficiently explained by the fact that as soon as the non-applicant came to know about the ex-parte decree against her on 12.7.1999, she rushed for a certified copy which was received on 16.7.1999 and without wasting any further time she saw that an application for setting aside the ex-parte decree was filed on 2.8.1999. Thus, the ex-parte decree was set aside after considering all these facts and also the circumstances the non-applicant was placed in, whereunder it could not have been presumed that the non-applicant/wife was having knowledge of pendency of the suit and the next date of hearing on 16.11.1999. Thus, the ex-parte decree was set aside after considering all these facts and also the circumstances the non-applicant was placed in, whereunder it could not have been presumed that the non-applicant/wife was having knowledge of pendency of the suit and the next date of hearing on 16.11.1999. The non-applicant is staying with her parents in a village. She has a child in the wedlock and is said to have suffered a disturbed marriage althrough. Under the circumstances, she was not expected to pursue the matter like a normal litigant. Thus, taking into account the totality of circumstances, the Court below has rightly found sufficient cause to set aside the ex-parte decree. Needless to say that revisional powers of this Court under section 115 of the CPC are to be exercised only in cases where there is miscarriage of justice and I do not find any illegality or material irregularity in the order to say "miscarriage of justice". Hence, I decline to interfere with the impugned order. As a result the Civil Revision No. 129/02 fails and is hereby dismissed.