Research › Search › Judgment

Uttarakhand High Court · body

2005 DIGILAW 159 (UTT)

Sanjay Tyagi v. Rita Tyagi

2005-05-10

B.C.KANDPAL

body2005
JUDGMENT Hon'ble H.C. Kandpal, J.-By way of this writ petition the petitioner Sanjay Tyagi has prayed for issuing a writ in the nature of certiorari quashing the impugned orders dated 11.12.2001 and 25.01.2002 passed by Civil Judge (S.D.), Roorkee and Additional District Judge, Roorkee respectively (Annexure No.6 and 7 to this petition). 2. Brief facts giving rise to this petition are that the petitioner Sanjay Tyagi filed a suit under Section B of the Hindu Marriage Act which was decided ex-parte in his favour on 09.02.2000. When the respondent-Smt. Rita Tyagi who is the wife of the petitioner gained knowledge of the aforesaid ex-parte decree, she immediately contacted her counsel and filed an application on 09.05.2000 under order 9 rule 13 C.P.C. read with Section 151 C.P.C. for setting aside the ex-parte decree. The petitioner along with her application filed an affidavit stating therein, she in fact did not receive any summon or notice and she had also no knowledge with regard to the pendency of the aforesaid case. She came to know with regard to the ex-parte decree only on 08.05.2000 for the first time and immediately she contacted her counsel and filed the application on 09.05.2000 for setting aside the ex-parte decree. 3. The application filed by respondent-Smt. Rita Tyagi was objected by the petitioner before the court below who filed an objection therein. The main contention which was pleaded in the objection filed by the petitioner before the court below was that the restoration application for setting -aside the ex-parte decree was filed beyond the prescribed period of limitation. It has also been pleaded that no sufficient reason has been given by Smt. Rita Tyagi in her application and affidavit for her absence before the court on the date fixed. 4. It has also been contended that the publication was made in the newspaper but in spite of this, she did not appear before the court hence the court had no option except to proceed ex-parte against her and consequently the ex-parte decree was passed in the divorce suit. 5. The learned Civil Judge (S.D.), Roorkee vide order dated 11.12.2001 allowed the application filed by Smt. Rita Tyagi under order 9 rule 13 CP.C read with Section 151 CP.C and restored the original case by setting aside the ex-parte decree. 6. 5. The learned Civil Judge (S.D.), Roorkee vide order dated 11.12.2001 allowed the application filed by Smt. Rita Tyagi under order 9 rule 13 CP.C read with Section 151 CP.C and restored the original case by setting aside the ex-parte decree. 6. Feeling aggrieved by the aforesaid order passed by the learned Civil Judge (S.D.), Roorkee, petitioner-Sanjay Tyagi filed the revision before the court of learned Additional District Judge who also after hearing the learned counsel for the parties and having perused the entire evidence on record was pleased to dismiss the revision vide judgment and order dated 25.01.2002. 7. Feeling aggrieved by the aforesaid both the orders, this writ petition has been preferred by the petitioner--Sanjay Tyagi before this Court. 8. Heard learned counsel for the parties and perused the record. 9. Learned counsel for the petitioner has firstly argued that the service through publication was a valid service and in the instant case, if the court has passed an ex-parte decree after having been satisfied on the question of service through publication, then nothing wrong has been committed by the court below. He has invited my attention towards the decision reported in A.I.R. 1989 Allahabad 93, Ram Pyari Devi Vs. IInd Additional District Judge, Azamgarh in order to substantiate the submission. 10. I have gone through the decision cited by the learned counsel for the petitioner and I am of the view that this decision is not going to help the petitioner in any manner. 11. In the instant case, it is not disputed whether the service through the publication is a valid service or not. It is to be seen in the instant case, whether the respondent Smt. Rita Tyagi had knowledge with regard to the proceeding pending before the court concerned or not. 12. The record in the instant case shows that Smt. Rita Tyagi in her affidavit ,filed before the court concerned has categorically stated that she did not receive any summon or notice and she also did not have any information with regard to the pendency of the case before the court concerned. She has also categorically stated therein that she came to know with regard to the ex-parte decree only on 08.05.2000 and immediately on the next day, she filed an application under order 9 rule 13 C.P.C. read with Section 151 C.P.C. for setting aside the ex-parte decree. 13. She has also categorically stated therein that she came to know with regard to the ex-parte decree only on 08.05.2000 and immediately on the next day, she filed an application under order 9 rule 13 C.P.C. read with Section 151 C.P.C. for setting aside the ex-parte decree. 13. Both the courts below have also recorded a categorical findings on this aspect that Smt. Rita Tyagi, in fact had no knowledge with regard to the proceeding pending before the court concerned as well as the ex-parte decree passed on 09.02.2000. Both the courts below have also recorded a categorical finding that there was no sufficient service of summons upon Smt. Rita Tyagi. The finding recorded by both the courts below pertains to the factual aspect and this court is not suppose to disturb the concurrent finding of fact recorded by both the courts below unless it is shown that the finding is based on misreading of the evidence or upon conjunctures and surmises. 14. Learned counsel for the petitioner has further submitted that power of the court below to restore a suit is circumscribed and limited by the express provision of order 9 rule.13 of the C.P.C. He has cited before me A.I.R. 1977 Gauhati 51, Mangaldoi Tea Vs. Abdul Latif. 15. I have given the anxious consideration to the ruling cited before me and I am of the view that this ruling is also not going 19 support the petitioner. 16. It is true that the power of the court to restore a suit is limited and circumscribed by the express provision contained in order 9 rule 13 for setting aside the decree. The court has to satisfy that the summons were not duly served upon the applicant who is intending to set aside the ex-parte decree. 17. In the instant case, both the courts below have recorded the finding that the paper in which the publication was made is not widely circulated in the local area. Hence, this publication also cannot be considered to be sufficient. Both the courts below have also recorded the finding that the service of summon has not been duly affected upon Smt. Rita Tyagi and only after coming to this conclusion both the courts below set aside the ex-part€ decree and restored the suit to its original number. 18. Hence, this publication also cannot be considered to be sufficient. Both the courts below have also recorded the finding that the service of summon has not been duly affected upon Smt. Rita Tyagi and only after coming to this conclusion both the courts below set aside the ex-part€ decree and restored the suit to its original number. 18. I do not find any illegality in the impugned orders passed by both the courts below. 19. On the basis of assessment of evidence on record, I also come to the conclusion that Smt. Rita Tyagi-respondent got knowledge of the ex-parte decree only on 08.05.2000 as the summon or notice was never served upon her during the pendency of the aforesaid case. The respondent has satisfactorily discharged her burden by satisfying both the courts concerned that her application was within time. 20. I am therefore of the view that the impugned orders have not been demonstrated to suffer from any error of law or jurisdiction. Even otherwise, it is not a fit case for exercising of discretion under Article 226 of the Constitution of India. 21. In the result the petition rails and is dismissed. 22. The interim order dated 08.3.2002 stands vacated.