Research › Search › Judgment

Andhra High Court · body

2009 DIGILAW 125 (AP)

Bantu Lavanya v. Bantu Rajeshwer

2009-02-27

B.SESHASAYANA REDDY

body2009
ORDER This Civil Revision Petition is directed against the order dated 18-9-2007 passed in I.A. No. 567 of 2006 in O.P. No. 61 of 2004 on the file of the Senior Civil Judge, Nizamabad whereby and where under the learned Senior Civil Judge dismissed the application filed by the petitioner under Section 5 of the Limitation Act to condone the delay of 587 days caused in filing the petition to set aside the ex-parte decree dated 19-11-2004. 2. The respondent herein is the petitioner in O.P. No. 61 of 2004. He filed the O.P. seeking divorce on the ground of desertion. Consequent on petitioner herein failing to appear before the Court despite the receipt of summons, the proceedings came to be conducted ex-parte and O.P. No. 61 of 2004 came to be allowed dissolving the marriage of the petitioner with the respondent. 3. The petitioner herein who is respondent in O.P. No. 61 of 2004 filed petition to set aside the ex-parte decree and also filed I.A. No. 567 of 2006 under Section 5 of the Limitation Act to condone the delay of 587 days. 4. It is the case of the petitioner herein that she was not served with the notice in O.P. and therefore, there was no opportunity to contest the proceedings initiated by the respondent herein. 5. Respondent herein resisted the application by filing the counter. It is stated by the respondent in the counter that the petitioner herein filed criminal case against him under Section 498-A I.P.C. and also M.C. No. 32 of 2003 and therefore, she is aware of the legal proceedings. He also took the plea that after the decree of divorce, he got remarried on 10-5-2006. 6. The petitioner herein got herself examined as P.W.1 and examined two more witnesses as P.Ws. 2 and 3. The respondent got himself examined as R.W.1 and examined the process server as C.W.1 and marked the served notice on the petitioner herein as EX.C-1. 7. The trial Court, on considering the material brought on record and on hearing the counsel appearing for the parties, came to the conclusion that EX.C-1 summons was duly served on the petitioner and thereby proceeded to dismiss the application filed to condone the delay of 587 days by an order dated 18th September, 2007. The said order is under challenge in this revision. 8. The said order is under challenge in this revision. 8. When this Civil Revision Petition came up for admission, Sri Kurti Shasakara Rao, learned counsel takes notice on behalf of the respondent. 9. Heard learned counsel appearing for the parties. 10. Learned counsel appearing for the petitioner submits that C.W.1 did not identify the petitioner as a person on whom he served the notice and therefore, it cannot be construed that EX.C-1 summons was served on the petitioner. A further submission has been made that the petitioner came to know of the ex-parte divorce decree only when the respondent filed O.S. NO.14 of 2006 and thereupon she filed an application to set aside the ex parte divorce decree and also moved application to condone the delay and therefore, there are no laches on the part of the petitioner in approaching the Court to set aside the ex-parte divorce decree. 11. Learned counsel appearing for the respondent submits that the evidence of C.W.1 coupled with EX.C-1 is explicit that the petitioner received the summons inO.P. and did not choose to contest and thereby an ex-parte divorce decree came to be granted. A further submission has been made that the petitioner (sic. respondent) got remarried on 10-5-2006. At this distance of time, setting aside ex-parte decree will cause much prejudice to the respondent. 12. It is the case of the petitioner that summons in O.P was not served on her. The respondent examined the process Server as C.W.1 and marked copy of the summons sent to her as EX.C-1. 13. EX.C-1 bears the signature of Lavanya (Petitioner herein). If it is the contention of the petitioner that the signature appearing on EX.C-1 is not of hers, she ought to have taken steps to examine the signature by an expert along with her admitted signature. The respondent is able to prove the service of summons on the petitioner by examining process server and exhibiting the copy of summons as EX.C-1. 14. The trial Court considered this aspect in great detail and came to the conclusion that summons in O.P. No. 61 of 2004 has been duly served on the petitioner. 15. Such is the situation, I do not see any valid ground to interfere with the order impugned in the Civil Revision Petition. 16. Accordingly, this Civil Revision Petition is dismissed. No order as to costs.