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2012 DIGILAW 808 (CAL)

Alpana Das v. Paresh Chandra Das

2012-08-28

PRASENJIT MANDAL

body2012
Judgment Prasenjit Mandal, J. This application is at the instance of the respondent and is directed against the Order No.35 dated January 14, 2011 passed by the learned Additional District Judge, 7th Court, Alipore thereby rejecting an application under Section 5 of the Limitation Act as well as an application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter shall be called as ‘C.P.C.’) on merits arising out of the Matrimonial Suit No.25 of 2003 filed by the plaintiff / opposite party herein. The plaintiff / opposite party herein instituted a matrimonial suit being Matrimonial Suit No.1064 of 2002 under Section 13(1)(ia) of the Hindu Marriage Act and the said suit was pending before the learned Additional District Judge, 7th Court, Alipore (subsequently re-numbered as Matrimonial Suit No.25 of 2003). The said suit was decreed ex parte on June 23, 2003 without any service of summons upon the wife/respondent/petitioner herein but by substituted service. In June 2002, the husband filed an application under Section 13 B of the Hindu Marriage Act for dissolution of marriage on consent upon procuring signature of the petitioner on false pretext and that application was ultimately dismissed for default for non-appearance of both the parties on May 8, 2002. Since, the petitioner is not living at her in-law’s house there was a change of her place of residence and as such, she did not receive any summons of the subsequent suit and so, she had no knowledge of the institution of the suit for divorce. Even when the reconciliation was going on before the LASWEB, Kolkata, the opposite party did not disclose anything, though the suit was then fixed for ex parte hearing. She came to know the fact of ex parte decree only on April 17, 2004 when the State Women’s Grievance Cell took an initiation for reconciliation again. Then, the husband disclosed ex parte decree of divorce obtained by him on June 23, 2003. So, as an abundant precaution, she filed an application under Section 5 of the Limitation Act along with an application under Order 9 Rule 13 of the C.P.C. for condonation of delay and vacating the ex parte decree passed against her. Those two applications were rejected by the impugned order. Being aggrieved, this application has been filed. So, as an abundant precaution, she filed an application under Section 5 of the Limitation Act along with an application under Order 9 Rule 13 of the C.P.C. for condonation of delay and vacating the ex parte decree passed against her. Those two applications were rejected by the impugned order. Being aggrieved, this application has been filed. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that marriage between the parties was held by negotiation on May 11, 1995 according to Hindu rights, rituals and customs and that a female child was born to the parties on April 12, 1996 and at present, the petitioner has been residing at her father’s house. As to non-appearance in the said suit, the petitioner has contended that she did not receive any summons to the suit and when the matter was being taken up for amicable settlement before the State grievance cell, the opposite party disclosed on April 17, 2004 that he was not interested to retain the marriage more on the ground that he had already got an ex parte decree from the Court. On getting such information on April 17, 2004 at the intervention of State grievance cell, the petitioner enquired into the matter through a lawyer and then she filed the application for setting aside the ex parte decree on May 20, 2004 along with an application under Section 5 of the Limitation Act. Mr. Saibalendu Bhowmick, learned Advocate appearing for the petitioner, has contended that in fact, his client did not get any opportunity to place her case properly inasmuch as the learned Trial Judge, without giving any opportunity to the parties to adduce evidence, disposed of the application under Section 5 of the Limitation Act and the application under Order 9 Rule 13 of the C.P.C. The order impugned, I find, does not disclose that the parties did not intend to adduce any evidence over the matter in issue before the learned Trial Judge. So, when there is a rival contention, it will be better to decide the matter on taking evidence on behalf of both the parties. Mr. Bhowmick has referred to the decision of Sushil Kumar Sabharwal v. Gurpreet Singh & ors. reported in AIR 2002 SC 2370 and G.P. Srivastava v. R.K. Raizada & ors. So, when there is a rival contention, it will be better to decide the matter on taking evidence on behalf of both the parties. Mr. Bhowmick has referred to the decision of Sushil Kumar Sabharwal v. Gurpreet Singh & ors. reported in AIR 2002 SC 2370 and G.P. Srivastava v. R.K. Raizada & ors. reported in AIR 2000 SC 1221 and thus, he submits that in case of non-service of summons, an ex parte decree is liable to be set aside. In dealing with such matters, the Court should be liberal. The Court should not take any unrealistic and technical approach. The learned Trial Judge was to consider the matter when the wife / petitioner got information about the fact of passing the ex parte decree. By referring the decision of (1996)5 SCC 529 , Mr. Bhowmick has submitted that even there was laches on the part of the conducting lawyer, the learned Trial Judge is to condone the delay. On the other hand, Mr. Balaram Neogi, learned Advocate appearing for the opposite party has referred to the decision of Md. Ali Sardar & ors. v. Hossain Ali Mondal being dead reported in 2012(2) CLJ (Cal) 446 in support of his contention that no revision lies against the order on an application under Section 5 of the Limitation Act and the decision of Shyam Sunder Sarma v. Pannalal Jaiswal & ors. reported in AIR 2005 SC 226 too, shows that the refusal to condone the delay is a decision in appeal and so, no revision lies. While dealing with the reference case in Md. Ali Sardar & ors. (supra), the Hon’ble Division Bench discussed Shyam Sundar Sarma’s case thoroughly. The Hon’ble Division Bench has also discussed the Full Court decision of our Hon’ble Court in Mamuda Khateen v. Beniyan Bibi reported in AIR 1976 Calcutta 415 wherein it has been held that the revision lies in dealing with an application under Section 5 of the Limitation Act in connection with an appeal. The Hon’ble Division Bench has also discussed the Full Court decision of our Hon’ble Court in Mamuda Khateen v. Beniyan Bibi reported in AIR 1976 Calcutta 415 wherein it has been held that the revision lies in dealing with an application under Section 5 of the Limitation Act in connection with an appeal. The Hon’ble Division Bench in dealing with the said reference matter has come to the conclusion in the following way:- (a) The order dismissing the application under Section 5 of the Limitation Act intending to prefer appeal is an appealable one and the revisional proceedings under any provision of law does not lie in view of the ratio laid down in case of Shyam Sundar Sarma v. Pannalal Jaiswal (supra). (b) Similarly order rejecting an application under Section 5 of the Limitation Act filed in proceeding initiated under Order IX Rule 13 of the Code is an appealable order. In the instant case, since the application under Order 9 Rule 13 of the C.P.C. for setting aside the ex parte decree has been rejected without giving adequate opportunities to the parties to adduce evidence in support of their respective contentions, the impugned order, I hold, requires to be set aside. The wife / petitioner herein has contended that there is no delay at all in view of the fact that she got the information about the ex parte decree when the husband / opposite party herein admitted before the State Grievance Cell in a meeting that he had got an ex parte decree of divorce against the wife / petitioner herein and as such, he is not agreeable to that proposal for reconciliation. On getting such information on April 17, 2004, she engaged a lawyer and the lawyer on such found on May 18, 2004 that the said suit was decreed ex parte on June 23, 2003 and the application for setting aside ex parte decree was filed on May 20, 2004. So, prima facie, there is no delay. The wife has filed necessary documents in support of her case and if it is not believed, parties may be directed to adduce evidence in support of their contentions. Therefore, the impugned order should be heard afresh. So, prima facie, there is no delay. The wife has filed necessary documents in support of her case and if it is not believed, parties may be directed to adduce evidence in support of their contentions. Therefore, the impugned order should be heard afresh. An appeal lies against the order of rejection of the application under Order 9 Rule 13 of the C.P.C. according to the provisions of Order 43 Rule 1(d) of the C.P.C. In view of the ratio of the Hon’ble Division Bench in the reference, rejection of an application under Section 5 of the Limitation Act is also an appealable order. Mr. B. Neogy has contended that this revisional application does not lie. Now, the question is which forum will deal with such matter. This is an application under Article 227 of the Constitution of India and this Hon’ble Court is to exercise the jurisdiction of superintendence over the Lower Courts and the Tribunals and the scope of revisional jurisdiction under Article 227 is wider than that under Section 115 of the C.P.C. Since, I have decided to remand the matter for fresh decision, in order to cause less trouble to the parties at this belated stage, this Court dealing with matters under Article 227 of the Constitution of India is competent to deal with the order which has been passed without any jurisdiction and in case of manifest or injustice flagrant error of procedure. So, in spite of alternative remedy as decided by the Division Bench in the reference, this application could be disposed of in the manner indicated above. So, in exercise of power of superintendence under Article 227 of the Constitution of India, I am of the view that this application should be disposed of accordingly. The impugned order is hereby set aside. The learned Trial Judge is directed to dispose of the matter within a period of three months from the date of communication of this order to him. If necessary, he may take up the matter on day-to-day basis hearing to complete the disposal of the matter within the time as fixed above. The application is disposed of in the manner indicated above. Considering the circumstances, there will be no order as to costs.