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2009 DIGILAW 777 (PNJ)

Gurdial Kaur v. Dilbag Singh

2009-04-23

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. The petitioner is in revision against the order dated 17.1.2007 vide which the learned Trial Court non suited her (on merits and also on point of maintainability) on a plea (under Order 9 Rule 13 C.P.C.) filed by her to obtain the invalidation of the ex parte decree of divorce. The averment, in the context, was that she never ever filed it and that somebody else impersonated her. 2. The plea did not find favour with the learned Trial Court, thereby impelling the petitioner-wife to approach this Court. 3. The allegations of the petitioner-wife were as under :- An application under Section 13 of the Hindu Marriage Act (hereinafter referred to as "the Act"), purporting to have been filed by the petitioner-wife, came to be instituted in the District Court, Jalandhar on 29.9.2002. It was entrusted to Shri J.P. Mehmi, the then learned Additional District Judge, Jalandhar. Respondent Dilbag Singh was proceeded partecounsel had earlier entered appearance on his behalf and had sought time to file power of attorney on the next date of hearing. On the adjourned date, the learned counsel did not enter appearance on behalf of the respondent-husband. Actually, at the time of filing the petition, she was very much living at the matrimonial house and respondent-husband was overseas. One Mohan Singh was examined as a witness in that petition. Somebody had played fraud upon her inasmuch as some one impersonated her and filed a petition for dissolution of the marriage. An parteree came to be granted in her favour ultimately. The passing of parteree came to her notice on 10.8.2003 when she was in Canada. On obtaining information about that decree, she rushed to India and filed a plea Order 9 Rule 13 C.P.C. 4 The respondent-husband contested the averments made by the petitioner-wife and raised objections regarding us standi also the maintainability thereof. Further, she was averred to be estopped, by her own act and conduct, from filing the petition which was barred by limitation too. The respondent denied that she was living at the matrimonial house at the time of petition came to be filed. The averment, in the context, was that the petitioner-wife had already withdrawn from the conjugal company of the respondent-husband and was putting up at her natal house. 5. The trial proceeded on the following issues :- "1. The respondent denied that she was living at the matrimonial house at the time of petition came to be filed. The averment, in the context, was that the petitioner-wife had already withdrawn from the conjugal company of the respondent-husband and was putting up at her natal house. 5. The trial proceeded on the following issues :- "1. Whether decree and judgment dated 22.1.2001 is liable to be set aside in view of the allegations of the application filed by Gurdial Kaur? OPA 2. Whether the application is not maintainable? OPR 3. Relief." 6. The learned Trial Court recorded finding adverse to the petitioner- wife and in favour of the respondent under both the issues. 7. I have heard Mr. G.S. Sandhawalia, learned counsel appearing on behalf of the petitioner and Mr. Amit Mehta, learned counsel appearing on behalf of the respondent and carefully gone through the file. 8. The learned counsel appearing on behalf of the petitioner-wife assailed the finding recorded by the leaned Trial Court under issue No. 1 by arguing that it outrightly deserves to be set aside on the ground that petitioner-wife herself had made an averment that she never filed that petition. 9. The plea raised is completely devoid of merit. The learned Trial Court correctly observed that there is no convincing evidence on the file which could be supportive of the self serving deposition of the petitioner-wife who, in the course of her testimony, had even otherwise refrained from averring that the petition under reference had filed either by the respondent-husband or at his instance or with his connivance. She could very well examine Shri Navin Chadha, Advocate through whom petition had been filed. She could well have also examined another learned counsel who identified her at the time attestation of the affidavit which came to be tendered into evidence in lieu of her examination-in-chief. She could also get her purported signatures compared with her specimen signatures. That, too, was not done by her. She tried to make an abortive bid to wriggle out of the predicament of having to undergo comparison by averring that she is not familiar with the Punjabi language. Her purported signatures on the petition appear in that language. However, the averment to the above fact is falsified by the material obtaining on the file to the effect that she had indeed studied Punjabi as well upto 8th standard. Her purported signatures on the petition appear in that language. However, the averment to the above fact is falsified by the material obtaining on the file to the effect that she had indeed studied Punjabi as well upto 8th standard. In that context, reference may be made with advantage to the relevant certificates Ex. RW3/A, Ex. RW3/B, Ex. RW3/C and Ex. RW3/D. A conjunctive perusal thereof would indicate that she indeed studied Punjabi language upto 8th standard. Thus, her statement that she is not familiar with the Punjabi language is proved to be untrue and only aimed at avoiding the embarrassment of giving the specimen signatures in Punjabi for comparison with her purported signatures on the relevant petition. 10. The position that, thus, emerges from the above discussion is that petitioner lied that her denial to the above effect is falsified by documented evidence. Apart therefrom, she did not examine the learned counsel who represented her at the trial. She also did not bother to examine the learned counsel who had identified her at the time she had sworn affidavit which came to be tendered into evidence in lieu of her examination-in-chief. This part of the evidence has to be appreciated in the light of the fact that there is complete want of averment to the effect that the petition aforementioned came to be filed at the instance of or in connivance with the respondent-husband. 11. The finding recorded by the learned Trial Judge is found to be worthy of affirmation and it is so ordered accordiongly. 12. In view of the law laid down by this Court in shan Lal v. Gulab Ram AIR 1985 Punjab and Haryana 157 no law to the contrary having been cited before this Court), it has to be held under issue no.2 that the plea under Order 9 Rule 13 C.P.C. would be competent if it was proved that a fraud had indeed been played upon the applicant-party. In this case, however, this Court has recorded a finding under issue No.1 that the petitioner-wife has not been able to prove that it was not she who had filed the impugned petition. In that view of things, it cannot be said that there is anything wrong in the finding recorded by the learned Trial Judge under issue No.2. In this case, however, this Court has recorded a finding under issue No.1 that the petitioner-wife has not been able to prove that it was not she who had filed the impugned petition. In that view of things, it cannot be said that there is anything wrong in the finding recorded by the learned Trial Judge under issue No.2. In the light of the foregoing discussion, the petition is held to be denuded of merit and is ordered to be dismissed.