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2012 DIGILAW 1471 (PNJ)

Pargat Singh v. Narinder Kaur

2012-10-12

M.JEYAPAUL

body2012
JUDGMENT Mr. M. Jeyapaul, J.: (Oral) - Heard the submissions made by learned counsel for the revision petitioner. 2. The revision petitioner invoking the provision under Section 13 of the Hindu Marriage Act filed a divorce petition before the trial Court. 3. The personal service of the defendant was not effected as the defendant who is none other than the wife of the revision petitioner/plaintiff allegedly refused to receive notice and consequently publication was effected. 4. The trial Court thoroughly perused the entire records and found that there was no material to establish that the defendant in fact refused to receive the notice. Firstly, the acknowledgement card sent alongwith the registered post was not produced to show that defendant in fact refused to receive the registered post. Further the Process Server who was sent through the Court had also not given the parentage and the address of the alleged witnesses who were present at the time when he proceeded to the house of the defendant for the purpose of service. Therefore, the trial Court was not in a position to examine any of the witnesses who was allegedly present at the time of reported refusal of notice by the defendant. Publication in the daily newspaper also did not have wide circulation. Even assuming that the said newspaper publication has wide circulation, it cannot be construed that the defendant had personal knowledge about the notice issued through publication. 5. In the above facts and circumstances, the trial Court found that it is just to set aside the ex-parte decree granted in favour of the revision petitioner. 6. Learned counsel appearing for the revision petitioner would submit that due service in accordance with the procedure known to law was effected. Further it is his submission that the ex-parte decree was passed as early as on 20.10.2009 and the application to set aside the ex-parte decree was filed by the defendant on 14.12.2009. Referring to Article 123 of the Limitation Act, 1963, he would submit that the application to set aside the ex-parte decree was not filed within 30 days from the date of ex-parte decree passed by trial Court. 7. I find that there is no merit in the aforesaid submission made by learned counsel appearing for the revision petitioner. Firstly, it is found that there was no personal service of notice on the defendant. 7. I find that there is no merit in the aforesaid submission made by learned counsel appearing for the revision petitioner. Firstly, it is found that there was no personal service of notice on the defendant. Further the defendant has rightly filed an application within 30 days from 7.12.2009, the date on which she came to know of the ex-parte decree as against herself. Under Article 123 of the Limitation Act, when the notice was not duly served on the defendant, the defendant can file an application within 30 days from the date of the knowledge of the decree. 8. In view of the above, I find that the trial Court has rightly allowed the application filed by the defendant seeking to set aside the exparte decree. Therefore, the revision fails and is stands dismissed.