Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 1702 (PNJ)

Jaswant Singh v. Sukhjit Kaur

2009-09-24

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This revision-petition is directed, against the order, dated 23.10.2003, rendered by the Court of Addl. District Judge, Amritsar, vide which, it accepted the application under Order 9, Rule 13 of the Code of Civil Procedure filed by Sukhjit Kaur and set aside the ex parte decree of divorce dated 09.09.1993. 2. The facts, in brief, are that a petition under Section 13 of the Hindu Marriage Act, titled as Jaswant Singh v. Sukhjit Kaur, was filed by Jaswant Singh, against his wife Sukhjit Kaur giving her address as 12425 74, Avenue Surrey, B.C. C3 W.O.R.5 Canada, and Sukhjit Kaur was ordered to be summoned for 01.03.1993 for which date the process was not issued by the Ahlmad. It was ordered to be issued for 20.04.1993. On 20.04.1993 the registered cover, containing the summons was received back, with the report that the address given thereon was not complete, and the petitioner was called upon to file correct address of Sukhjit Kaur, on 11.05.1993. On 11.05.1993 instead of filing the correct address of the respondent, an application under Order 5 Rule 20 of the Code of Civil Procedure was moved, by the petitioner, stating therein, that the respondent was deliberately avoiding the service. The prayer of Jaswant Singh was accepted. Accordingly, the service of Sukhjit Kaur by way of publication in the daily Tribune for 14.06.1993 was ordered notice after publication, was received, but Sukhjit Kaur, did not appear, in the Court, as a result whereof, she was proceeded against ex parte on 14.06.1993. Ultimately, on the basis of ex parte evidence, led by Jaswant Singh, the petition under Section 13 of the Hindu Marriage Act, was allowed on 09.09.2003. 3. Sukhjit Kaur, then came to know, about the ex parte decree dated 09.09.1993, which had been passed against her. She filed an application under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside the same. It was stated, in the application, that she was never served personally, in the petition under Section 13 of the Hindu Marriage Act. She filed an application under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside the same. It was stated, in the application, that she was never served personally, in the petition under Section 13 of the Hindu Marriage Act. It was further stated by her, that it was only on 15.12.2001 during the suit filed by her, under Sections 18 and 20 of the Hindu Marriage Act and Maintenance Act, that Jaswant Singh disclosed in the Court of Sh.Rajiv Malhotra the then Additional Civil Judge (Senior Division), Batala, in the written statement, that he had obtained the ex parte decree of divorce, against her. Immediately, thereafter, on 20.12.2001, a petition for setting aside the ex parte decree of divorce, dated 09.09.1993 was filed. It was further stated that she was not duly served, at the address given, which was wrong, to the knowledge of Jaswant Singh, and thus, ex parte decree of divorce dated 09.09.1993 was liable to be set aside. 4. In reply, Jaswant Singh stated that the application for setting aside the ex parte decree dated 09.09.1993, was barred by time. He further stated that Sukhjit Kaur concealed the material facts, from the court. It was further stated that the summons sent to her, under registered cover, was returned by the postal authorities of Canada, that the address was incomplete. It was further stated that no other alternative was left with him, than to serve Sukhjit Kaur, by way of substituted mode of service. He further submitted that she was duly served, through publication, but she did not come present, and accordingly, the ex parte decree of divorce, dated 09.09.1993 was legally passed. It was further stated by him that the address of Sukhjit Kaur, given to him, in that petition, was correct. It was further stated that Sukhjit Kaur, deserted him. Accordingly, a prayer was made that the application, be dismissed. 5. On the pleadings of the parties, the following issue was struck: (i) Whether there are sufficient grounds to set aside the judgment and decree dated 09.09.1993? OPA (ii) Relief. 6. After hearing the counsel for the parties and, on going through the evidence, on record the trial Court, accepted the application under Order 9 Rule 13 of the Code of Civil Procedure, and set aside the exparte decree of divorce, dated 09.09.1993. OPA (ii) Relief. 6. After hearing the counsel for the parties and, on going through the evidence, on record the trial Court, accepted the application under Order 9 Rule 13 of the Code of Civil Procedure, and set aside the exparte decree of divorce, dated 09.09.1993. Feeling aggrieved, the instant revision petition, has been filed, by the revision petitioner. 7. I have heard the counsel for the revision-petitioner, and, has gone through the record of the case, carefully. 8. The counsel for the revision-petitioner, submitted that since the application, for setting aside the ex parte. decree of divorce, dated 09.09.1993, was barred by time and no sufficient cause was shown, the Court below, was wrong in setting aside the same. He further submitted that correct address of Sukhjit Kaur, in divorce petition, was given, by the revision-petitioner. He further submitted that even Sukhjit Kaur, used to come to India, during the pendency of the divorce petition, and, it could not be imagined, that she did not know, about the same. He further submitted that when all efforts failed to effect the service of Sukhjit Kaur, in the ordinary manner, at her address of Canada, left with no alternative, the Court had to order her service, through substituted means. He further submitted that the order impugned, being illegal, was liable to be set aside. 9. After giving my thoughtful consideration, to the contentions, advanced by the counsel for the revision-petitioner, in my considered opinion, the revision-petition, deserves to be dismissed, for the reasons to be recorded, hereinafter. The only question that falls for decision, is, as to whether Sukhjit Kaur, in the petition under Section 13 of Hindu Marriage Act, was duly served, and she did not appear in the same, intentionally and deliberately, leading to the passing of ex parte decree of divorce dated 09.09.1993. In the divorce petition, no doubt the address of Sukhjit Kaur, was given by Jaswant Singh. In the divorce petition, no doubt the address of Sukhjit Kaur, was given by Jaswant Singh. However, summons through registered cover, for the service of Sukhjit Kaur, sent at that address for 20.04.1993 was returned undelivered, with the report of Canadian Postal Authorities, for want of complete address, and the petitioner was called upon to file correct address of Sukhjit Kaur, He instead of filing the correct address of the respondent, moved an application under Order 5 rule 20 of the Code of Civil Procedure, stating therein, that the respondent was deliberately avoiding the service, and she be served, by way of substituted means. It is evident, from the order, under challenge, that in the application, which was moved, by Jaswant Singh, under order 5 Rule 20 of the - Code of Civil Procedure, it was falsely asserted by him, that summons through ordinary manner for service had been sent, more than once. It was falsely asserted, in that application, that the registered envelope, sent for the service of Sukhjit Kaur had not been received back, in the Court. Had the address of Sukhjit Kaur been correct, and she had been personally served, it that address, through registered cover, but had not come present, the matter would have been different. In those circumstances, it would have been said that she was rightly proceeded against ex parte, and the decree, was rightly passed against her. Once the registered AD cover, through which the summons for the service of the respondent was sent, was received back undelivered, with the report of Canadian Postal authorities, that the address was incomplete it was the duty of Jaswant Singh to furnish her correct address, instead of filing an application under order 5 Rule 20 of the Code of Civil Procedure, for her service through substituted means. Even during the course of his evidence, on the application under Order 9 Rule 13, Jaswant Singh could not establish that the address of the respondent given by him, in the petition under Section 13 of the Hindu Marriage Act, was correct, and the report of the postal authorities, was incorrect. Even during the course of his evidence, on the application under Order 9 Rule 13, Jaswant Singh could not establish that the address of the respondent given by him, in the petition under Section 13 of the Hindu Marriage Act, was correct, and the report of the postal authorities, was incorrect. In these circumstances, it can be very well said, that the service through publication of Sukhjit Kaur could not be said to be a valid service, as no evidence, was produced, that daily English Tribune, had vide circulation, in Canada, and, whether copy of the newspaper, was actually delivered to Sukhjit Kaur. Since Sukhjit Kaur was never duly served in the petition under Section 13 of the Hindu Marriage Act, as soon as, the came to know about the ex parte decree, in the proceedings under Sections 18 and 20 of the Hindu Adoption and Maintenance Act, filed by her, against Jaswant Singh, she moved an application under Order 9, Rule 13, for setting aside the ex parte divorce decree dated 09.09.1993. The period of limitation, in the circumstances; referred to above, was to start from the date of acquisition of knowledge of the ex parte decree of divorce, by Sukhjit Kaur. There was also sufficient cause for setting aside the ex parte decree dated 09.09.1993. The Counsel for the revision-petition, placed reliance, on the judgment titled as Balwant Singh v. Kamlesh Verma, 1996(3) PLR 138, to contend that since Sukhj it Kaur was evading the service and knew about the proceedings, the ex parte decree dated 09.09.1993, was rightly passed, against her. In Balwant Singhs case (supra), it was proved, from the evidence, on record that the applicant knew about the proceedings, but was evading service, and all efforts had been made to effect the service, before the ex parte decree, was passed. The court was satisfied, in that case, that the petitioner had the knowledge of the proceedings, and the application having been moved, after the expiry of period of limitation of 30 days, the same was liable to be dismissed. 10. In this case, the summons through registered cover, was sent, only once, for the service of Sukhjit Kaur, which was received back undelivered, with the report that the address was incomplete. 10. In this case, the summons through registered cover, was sent, only once, for the service of Sukhjit Kaur, which was received back undelivered, with the report that the address was incomplete. Thereafter, no effort, was made, by Jaswant Singh, to furnish the correct address of Sukhjit Kaur, and he moved an application under Order 5 Rule 20 of the Code of Civil Procedure, for her service, through substituted means. The summons were not sent again and again. It was also not proved that Sukhjit Kaur, was evading the service of summons. No cogent and convincing evidence was produced, to prove that Sukhjit Kaur, was having knowledge of the pendency of the petition under Section 13 of the Hindu Marriage Act. In this view of the matter, no help can be drawn, by the Counsel for the revision-petitioner, from the aforesaid case, the facts, thereof, being distinguishable from the facts of the instant case. The submission of the Counsel for the revision-petitioner, is, thus, rejected. The order impugned does not suffer from any illegality, material irregularity or perversity, and warrant no interference, of this Court, in its revisional jurisdiction, under Article 227 of the Constitution of India. The order impugned, is, thus, liable to be upheld. 11. For the reasons recorded above, the revision-petition, being devoid of merit, must fail and the same is dismissed. Petition dismissed.