ORDER : These petitions are directed against the order Rahul Dubey v. Vibha Dubey, CM (M) No. 1469 of 2009, decided on 23-12-2011 (Del) of the Delhi High Court whereby two miscellaneous petitions filed by the petitioner questioning orders dated 4.11.2009 and 12.03.2010 passed by Addl. District Judge, Delhi (for short, 'the trial Court') setting aside the ex-parte judgment and decree dated 8.12.2005 and granting opportunity to the respondent to cross-examine the three witnesses examined by the petitioner by recalling order dated 6.4.2005 were dismissed. 2. The parties were married on 18.4.2000. After about three years, the petitioner filed a petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 in the Court of Civil Judge, Senior Division, Ghaziabad for dissolution of marriage by grant of a decree of divorce. The respondent filed written statement sometime in April, 2004. The issues were framed on 19.7.2004. In 2005, the respondent filed a petition in the Allahabad High Court for transfer of the case from Ghaziabad to Varanasi. The High Court rejected her prayer but the special leave petition filed by the respondent, which was converted into Civil Appeal No. 2579/2005 was allowed by this Court on 11.4.2005 Vibha Dubey v. Rahul Dubey, (2012) 11 SCC 753 and the divorce petition was transferred from the Court of Civil Judge, Senior Division, Ghaziabad to the Matrimonial Court, New Delhi. While doing so, this Court made it clear that the petition shall be proceeded from the stage at which it was before the earlier Court. 3. In compliance of the direction given by this Court, District Judge, Ghaziabad transmitted the record of the divorce petition to District Judge, Delhi, who entrusted the case to Additional District Judge, Delhi. On 10.5.2005, the trial Court noted that no one had appeared on behalf of the respondent and directed issue of notice returnable on 1.6.2005. However, the registry of that Court did not comply with order dated 10.5.2005 and did not issue notice. Notwithstanding this, the trial Court granted a decree of divorce by ex-parte judgment dated 8.12.2005. 4. As soon as the respondent learnt about the ex-parte decree, she filed Application No. 12 of 2007 for setting aside the same. She also filed an application under Section 5 of the Limitation Act for the condonation of delay. Notwithstanding this, the trial Court granted a decree of divorce by ex-parte judgment dated 8.12.2005. 4. As soon as the respondent learnt about the ex-parte decree, she filed Application No. 12 of 2007 for setting aside the same. She also filed an application under Section 5 of the Limitation Act for the condonation of delay. After hearing counsel for the parties, the trial Court passed order dated 4.11.2009 whereby it condoned the delay and set aside the ex-parte decree passed in favour of the petitioner. 5. By another order dated 12.3.2010, the trial Court allowed the application filed by the respondent under Section 151 CPC for giving her an opportunity to cross-examine PW-1 to PW-3. The reasons assigned by the trial Court for entertaining the prayer of the respondent are extracted below: "It is well settled that the principles of natural justice require that adequate and fair opportunity is to be granted to all the parties to a litigation for producing whatever documents or evidence which may be in their possession with regard to their case and a fair opportunity has also to be given to the opposite party to counter, rebut or challenge such evidence being brought on record. Evidence not only includes the chief examination of a witness but also the cross-examination of the witness and if a witness has not undergone such test of cross- examination, the testimony of such a witness cannot be considered by the court as an evidence on record. Though the affidavits of three PWs were already filed on record on behalf of the petitioner as his evidence in this case, but a bare perusal of the above order-sheets dated 04.04.05, 05.04.05 and 06.04.05 of the Ld. transfer court shows that thought there were directions from the Hon'ble High Court of Allahabad to conduct these divorce proceedings at the earliest by fixing day to day hearings in the matter, but the Ld. transfer court had shown undue and unnecessary haste in proceeding with the examination of the witnesses. transfer court shows that thought there were directions from the Hon'ble High Court of Allahabad to conduct these divorce proceedings at the earliest by fixing day to day hearings in the matter, but the Ld. transfer court had shown undue and unnecessary haste in proceeding with the examination of the witnesses. It cannot be forgotten that it is the respondent/wife herein who had approached the Hon'ble High Court with a prayer for transfer of the proceedings and though her request for transfer of the proceedings at that stage did not find favour with the Hon'ble High Court, but the above order for day to day conduction of the proceedings was also passed by the Hon'ble High Court only to avoid any harassment to the applicant/wife. Further a perusal of the order-sheet dated 06.04.05 also shows that it was specifically brought on record on behalf of the respondent/wife that she had already filed the above SLP before the Hon'ble Apex Court and the interest of propriety required that the Ld. Transfer Court should have deferred the hearings in the matter at least for few days to enable the respondent/wife to secure the disposal of her stay application before the Hon'ble Apex Court and should not have closed the cross-examination of the PWs. In view of the above background, I am of the considered opinion that the above observations made by the Hon'ble Supreme Court that the proceedings are being transferred from the same stage at which these were before the Ghaziabad Court can in no way be taken to mean that the cross-examination of the above PWs can never be opened or reopened by this court or by any higher court at any subsequent stage. It is so because if such an interpretation is given to the above observations of the Hon'ble Supreme Court then the provisions pertaining to powers of the court relating to the review, recalling or modification of a previous order and also the provisions pertaining to the inherent powers of the court shall become redundant. Further, such restricted interpretation will also cause serious prejudice to the rights and interest of the respondent/wife and will further result in a grave miscarriage of justice to her in depriving her of her valuable rights to cross-examine the above said witnesses." 6. The petitioner challenged the orders of the trial Court by filing petitions under Article 227 of the Constitution. The petitioner challenged the orders of the trial Court by filing petitions under Article 227 of the Constitution. The learned Single Judge noted that on 10.5.2005 the trial Court had directed issue of notice to the respondent for 1.6.2005 but on the adjourned date, i.e., 5.7.2005, the Presiding Officer recalled earlier order dated 10.5.2005 on the premise that the respondent was aware about transfer of the case to Delhi but failed to appear and passed ex-parte decree dated 8.12.2005 and proceeded to observe: "This Court is totally baffled and flabbergasted to find that the learned ADJ reversed its own decision dated 10th May, 2005, when the Court notice was directed on the respondent by taking a view that there was no need to direct Court notice as the respondent can be taken to have deemed knowledge of the said transfer of the case. This order dated 5.7.2005 was ex facie illegal order not only because it had recalled its earlier order dated 10th May, 2005 for no reasons but also because the Court did not appreciate the fact that the said case was transferred from one State to another State and, therefore, in the absence of appearance of anyone of the parties the Court notice for the absentee party was imperative. The rules of natural justice mandate that the party should be put to notice after the case has been transferred from one court to the other. What could have been more fatal to the respondent wife to seek transfer of the case at Delhi Court and then not be able to appear due to the injudicious approach of the learned trial court. Once the Supreme court has allowed the transfer petition, the transferee court should have put the parties to notice as the rules of fair play and natural justice demand.(Payal Ashok Kumar Jindal v. Ashok Kumar Jindal, (1992) 3 SCC 116 ). It also cannot be lost sight of the fact that earlier the Ghaziabad Court vide orders dated 19th April, 2005 had given the directions for placing the said matter before the Delhi Court on 12.5.2005 and then on the application moved by the petitioner, fresh direction vide orders dated 26.4.2005 was given by the Civil Judge, Ghaziabad for placing the matter before the Delhi Court in terms of the directions given by the said Civil Judge on 19.4.2005. Surprisingly the said matter was not placed before the Delhi Court on 12.5.2005 but was taken by the concerned matrimonial Court in Delhi on 10.5.2005. The Trial Court in the impugned order dated 4.11.2009 has rightly observed that it was mandatory on the part of the matrimonial Court at Delhi to issue Court notice to the applicant/respondent informing her the actual date of hearing. Learned Trial Court had also drawn an analogy from Chapter 13 Volume 1 of the Delhi High Court Rules which deals with the rules governing transfer of suits and appeals. Learned Trial Court further placed reliance on other judgments of the Apex Court on the proposition of law applicable to the facts of the case involved and this Court does not find any perversity or illegality in the reasoning given by the learned Trial Court to set aside the ex parte judgment and decree of divorce passed by the predecessor Judge of the same Court. In the absence of service of any Court notice, there was no fault on the part of the respondent to assume that she would receive a Court notice from the transferee Court, more particularly when the respondent herself was residing at a far off place at Varanasi (U.P.) and was, therefore, not expected to have chased the said case from one Court to another after its transfer to Delhi Court as it cannot be overlooked that in Delhi itself at a given point of time at least 6 to 8 Additional District Judges deal with the jurisdiction in matrimonial cases. The learned Trial Court also did not appreciate that the said matter was being contested by the respondent before the Ghaziabad Court and there could not have been any perceptible reason because of which the respondent would have avoided to contest the said divorce case filed by her husband, more particularly when the respondent herself sought transfer of the case from the Ghaziabad Court to Delhi Courts. It has been a consistent view of the Supreme Court and various High Courts that matrimonial disputes should be decided by the Courts on merits and due care is required to be taken by the Courts that one of the interested parties may not walk away with the ex parte decree to the detriment and prejudice of the other party, which has exactly happened in the present case." 7. The learned Single Judge then referred to Order 9, Rule 13 CPC and held that proviso thereto, which contains a mandate against the setting aside of ex-parte decree only on the ground of irregularity of service of summons, is not applicable to this case because the trial Court did not ensure compliance of order dated 10.5.2005 and passed ex-parte decree. 8. We have heard Shri Raju Ramachandran, learned senior counsel appearing for the petitioner at some length and carefully perused the record. Learned senior counsel strongly relied upon proviso to Order 9, Rule 13 CPC and the judgment of this Court in Parimal v. Veena alias Bharti, (2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 and argued that irregularity in the service of summons is by itself not sufficient for setting aside an ex-parte decree and the trial Court and the learned Single Judge committed serious error by entertaining the respondent's prayer. 9. In our opinion, the proposition laid down in the judgment relied upon by the learned senior counsel has no application to the case in hand because it is an admitted fact that the trial Court, to whom the case was transferred had taken up the matter on 10.05.2005 i.e. two days before the date allegedly notified by the Court at Ghaziabad, did not ensure compliance of order dated 10.5.2005 and decided the divorce petition by ex-parte judgment. The failure of the trial Court to issue summon to the respondent was an illegality of the gravest nature and the concerned Court did not commit any error by setting aside the ex-parte decree. 10. We are also convinced that the trial Court did not commit any error by giving an opportunity to the respondent to cross-examine the petitioner. The order passed by this Court in the transfer case did not inhibit the trial Court from entertaining the respondent's request for giving her an opportunity to cross-examine the witnesses examined by the petitioner and the learned Single Judge rightly refused to interfere with the orders of the trial Court, which were essentially just. 11. With the above observations, the special leave petitions are dismissed.