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2017 DIGILAW 315 (UTT)

Prerna Singh v. Prashant Kumar

2017-06-12

RAJIV SHARMA, SHARAD KUMAR SHARMA

body2017
JUDGMENT : Sharad Kumar Sharma, J. 1. This is a defendant’s appeal by invoking the provisions under Section 19(1) of the Family Court Act, r/w Order 43 Rule 1 (d) whereby, she has sought a relief to set-aside the order dated 25.09.2013, passed by Principal Judge, Family Court, Dehradun, wherein her miscellaneous application registered as Miscellaneous Case No.41 of 2011, for setting aside the ex-parte decree was rejected. 2. Brief facts of the case according to the appellant herein is that her marriage was solemnized with the plaintiff of Suit No.570 of 2010 on 26.02.2009, in accordance with the Hindu rituals. 3. She contended that she is a qualified medical practitioner and the husband/respondent herein (plaintiff before the Court below) is an excise inspector, but on account of certain altercations coupled with the fact that according to the appellant, she wanted to practice as a doctor the same was not acceptable, further, since she also wanted to prepare herself for civil services which was not accepted by the husband and his family resulting into raising false allegations against her. Consequently, respondent filed the Suit No.570 of 2012, invoking under Section 13 for dissolution of marriage dated 26.02.2009. 4. In the said suit it was pleaded by the respondent, that on asking of certain questions about the whereabouts of the appellant, the respondent used to misbehave and used to impose unnecessary restrictions in the movement of the appellant i.e. wife. He further contended that simultaneously the wife too used to doubt about the integrity of the plaintiff/respondent herein, when he returned late from his office, however, the propriety of the aforesaid proceedings under Section 13 is not in question. In accordance with the order sheet, it has been observed by the Court below that notices were sent which were served sufficiently and since she has not put her appearance, thus, the suit was directed to proceed ex-parte, consequently, the counsel for the husband/respondent was heard and the suit was decreed and the marriage between the appellant and respondent dated 26.02.2009 was dissolved by the judgment dated 13.12.2010. 5. It is the case of the respondent that on getting the knowledge of the ex-parte judgment dated 13.12.2010; she moved an application invoking Order 9 Rule 13 on 05/8.08.2011. 5. It is the case of the respondent that on getting the knowledge of the ex-parte judgment dated 13.12.2010; she moved an application invoking Order 9 Rule 13 on 05/8.08.2011. In the application the reasons assigned by her for her absence in the proceedings was that since she was being tortured by the husband and his family members, coupled with the fact that they were creating impediments by switching on the T.V. at loud noise to create hindrance in her sole endeavor to study and to pursue her civil services examination, and intended to pave way in a fashion, her career was obstructed upon. 6. She in her application further contended that the brother-in-law of hers also misbehaved and the said incident was witnessed by the brother of the appellant. In para 8 of the application she stated that on 05.05.2010, when she returned back to Kanpur along with her father. After staying in Kanpur for few days she returned and resumed her job in Mahent Indresh Charandas Hospital on 28.05.2009 and since then she started residing separately. Despite of residing separately, she was again tortured and misbehaved by her husband and she was duressed upon to leave her job by 15.07.2010, she contended that on account of the aforesaid circumstances, she was forced to live with her parents without any job. Since, she was having no source of earning, she filed an application under Section 125 Cr.P.C. for her maintenance which was registered as Criminal Case no.597 of 2010 against her husband, which is still pending for disposal. 7. Case of the appellant in para 11 of her application is that the notices of Suit No.570 of 2010, was served upon the deponent for attending the date before the Court on 01.12.2010, but on account of the threat perception which the respondent’s family exerted, she was unable to attend the proceedings and further, since she has moved a transfer petition before the Hon’ble Apex Court being Transfer Petition No.1204 of 2010, “Prerna Singh vs. Prashant Kumar” and the same was pending as on 01.12.2010, i.e. the date which was fixed in Suit No.570 of 2010. Appellant stated that she was advised by the counsel engaged by her in Delhi that she need not to worry as she was assured to get an interim order from the Hon’ble Apex Court and, accordingly, she would be informed about the interim order, under the aforesaid belief given by her counsel, she contended that she was unable to attend the proceedings of the Court on 01.12.2010. 11. In her application under Order 9 Rule 13, she is stated that she could gather the knowledge of the ex-parte proceedings dated 01.12.2010, from one Mr. Lakhpat Singh, who informed her telephonically. It is case of appellant that Mr. Lakhpat Singh visited the house of the appellant and expressed his desire to engage his daughter with Mr. Prashant Kumar, who is said to have obtained an ex-parte decree of divorce from the Court. This was the source of information when appellant for first time came to know about the ex-parte decree and after getting the certified copy of the order, she on the basis of the aforesaid grounds filed an application under Order 9 Rule 13 along with the affidavit in support thereof dated 05.08.2011. 12. The application of the appellant was opposed by the respondent herein by contending that the application under Order 9 Rule 13 may not be considered because after the ex-parte decree dated 13.12.2010, dissolving the marriage, as since the time period provided under Section 15 of the Hindu Marriage Act, for filing an appeal has lapsed, he has solemnized another marriage one with Smt. Sarita on 22.06.2011, as there was no interim order operating against the ex-parte judgment and decree dissolving the marriage. 13. The sole basis of the contest of the respondent was that the appellant had the knowledge as would be apparent from the pleading raised by the appellant in para 11 of her application under Order 9 Rule 13, he also contended that the basis of the application that she could gather the information about the ex-parte dated decree 13.12.2010, was the information extended by Mr. Lakhpat Singh cannot be accepted the reason being Mr. Lakhpat Singh, who is said to have visited the residence of the appellant at Kanpur had no relationship whatsoever, with her and her family. Thus, the application filed by the appellant according to the plaintiff/respondent for seeking to set-aside the order dated 01.12.2010, may be rejected. 14. Lakhpat Singh cannot be accepted the reason being Mr. Lakhpat Singh, who is said to have visited the residence of the appellant at Kanpur had no relationship whatsoever, with her and her family. Thus, the application filed by the appellant according to the plaintiff/respondent for seeking to set-aside the order dated 01.12.2010, may be rejected. 14. On exchange of pleadings, the learned Family Court by the impugned order dated 25.09.2013, has rejected the application and affirmed the ex-parte judgment and decree dated 13.12.2010, hence the instant appeal. 15. Heard Mr. Ajay Veer Pundir, Advocate for the appellant and Mr. Anil Kumar Joshi, Advocate for the respondent. The contention of the learned counsel for the appellant is that she was unable to put in appearance on 01.12.2010, for the reasons beyond her control and for the reason that she being a litigant was bound to accept the opinion expressed by her counsel at Delhi about the pending proceedings before the Hon’ble Apex Court. Her contention cannot be athwarted too because the records of the appeal shows that at a later stage, the Hon’ble Apex Court did grant an interim order on 16.12.2010, whereby the proceedings of the Family Court in Suit No.570 of 2010 was stayed. 16. The appellant very fairly in para 11 of her application has pleaded a right fact that she did received the notice but has assigned plausible reason, why she could not put in appearance on 01.12.2010. The basis of the pleading in the application no malafide could be attributed to the appellant, and the reasons assigned by her for non-participation in the proceedings before the Family Court on 01.12.2010. 17. Looking to the time period between the date of institution of the Suit No.570 of 2010 on 13.09.2010. The next date was fixed for 01.12.2010, the notices of which was sent on 16.09.2010 and it was reported that the notices have been sufficiently served, hence the case was directed to proceed ex-parte on 12.12.2010, ultimately the ex-parte decree dated 13.12.2010 was passed. The next date was fixed for 01.12.2010, the notices of which was sent on 16.09.2010 and it was reported that the notices have been sufficiently served, hence the case was directed to proceed ex-parte on 12.12.2010, ultimately the ex-parte decree dated 13.12.2010 was passed. This Court is absolutely in agreement with the pronouncement rendered by the Hon’ble Apex Court, in the case of Parihmal vs. Beena, laying down that mere a regulatory in service may not be a ground to set-aside an ex-parte decree, but in the case at hand the reasons which has been given by the appellant about the counsel opinion of the probable interim order from the Hon’ble Apex Court in the transfer petition filed by the appellant before the Hon’ble Apex Court, and the grant of an interim order at a subsequent stage goes to show that a bonafide impression was created due to which she was unable to appear on 13.12.2010. The view taken by the Court that during the intervening period from the date of the ex-parte judgment dated 13.12.2010 and till the date of the filing of the application under Order 9 Rule 13, the respondent has solemnized second marriage would be a sufficient ground to reject Order 9 Rule 13 is a misinterpretation. Because an application under Order 9 Rule 13, has to be strictly construed on the basis of the circumstances, which posed difficulty before a party to the proceedings to appear before a Court strictly as per provisions of Order 9 Rule 13 itself. Any subsequent action cannot be borrowed for the purposes of determining the application under Order 9 Rule 13 for example, in the present case, the second marriage of respondent no.2 after the decree. The impact as considered by the Court with regards to Section 15 is to be harmoniously construed and not in a fashion to deprive a litigant from contesting the proceedings and that too on account of an opinion given to her by the Counsel. 18. Since, the appellant has bonafidely acted upon the opinion of the counsel within assurance of getting the interim order, the facts which is not being denied by the respondent in their objection to the application under Order 9 Rule 13, couple with the fact that the law always contemplates that a lis interse parties has to be decided on merits after due opportunity to the parties. Since in the case at hand, the incapacity of the appellant to put in appearance on 01.12.2010, was beyond her prudence, hence, should not be deprived of an opportunity to have her say in the case more particularly when it relates to the grant of decree of divorce by an ex-parte decree. 19. The respondent before this Court has placed reliance on judgment of the Hon’ble Apex Court reported in 2011 Volume III SCC page 545 before the Court below, wherein the Hon’ble Apex Court while dealing with the impact of Order 9 Rule 13 r/w Order 5 Rule 10 has held that mere an irregulatory in the service of notice would not be sufficient to set-aside an ex-parte decree. In the said judgment, the Hon’ble Apex Court has further held that for the purposes of interpreting the impact Order 9 Rule 13 which, uses the word ‘sufficient cause’ has to be construed liberally that means to say it should be interpreted as an expression where the person despite of having knowledge was refrained from participating in the proceedings due to sufficient reason. The sufficient cause herein the present case was the opinion extended by the counsel, as recorded in para 14 in the judgment referred above by the Hon’ble Apex Court while dealing with the sufficient cause for non appearance was interpreting a good cause and a sufficient cause which requires a lesser decree of proof for non appearance. 20. Another ground which has been taken by the Court that during the intervening period, i.e. from the date of the ex-parte decree, i.e., 13.12.2010 till filing of the application for setting aside the ex-parte decree the husband/respondent herein has solemnized the second marriage, for the purposes of considering the application under Order 9 Rule 13 nowhere under the Family Court Act, the impact of Section 15 of the Act is to be taken into consideration while deciding of Order 9 Rule 13 as both being an independent provisions. The effect of second marriage it would always be an issue to be settled independently between parties, on this score the appellant cannot be deprived from establishing her case after participating in the proceedings. 21. The effect of second marriage it would always be an issue to be settled independently between parties, on this score the appellant cannot be deprived from establishing her case after participating in the proceedings. 21. There is another aspect of the matter, to consider the purpose and the applicability of Order 9 Rule 13 in a given set Of circumstances of the case, the legislature in all its wisdom while using the word “sufficient cause” as an expression has been consistently using the said word in number of statutes, the synonym of the word sufficient cause would mean adequate or enough to answer its purpose. The word sufficient embraces a situation where an act done suffices to accomplish the purpose intended in the facts and circumstances of the case. From this view point, it means a reasonable standard which a cautious man is suppose to follow. Hence, it could be said that the party had not acted in a negligent manner ‘or’ there was a lack of bonafide on its part in view of the facts and circumstances of the case, which could have restricted him from acting diligently or remaining inactive, which in the instant case was the opinion of the counsel. Hence, Order 9 Rule 13 has to be scrutinized by each Court under a given set of circumstances of the case. 22. The sufficient cause only stipulates that there must be an offer of explanation for non appearance, the only distinction between the two “goods cause” and “the sufficient cause” is the requirement of a good cause is complied with on a lesser decree of proof than of a sufficient cause, thus the Courts while deciding the sufficient cause existed or not the Court has to taken into consideration its object for doing substantial justice to the parties in contest and the hyper technicalities of non appearance should not deprive a party to establish his case on merits. Thus, in order to determine the application of Order 9 Rule 13, the test which is to be applied is the honesty and sincerity which a party intends to remain present when the suit is called. Hence, the sufficient cause being the cause for which the defendant could not be blamed for his absence such a defence in the instant case as extended by the appellant deserves to be accepted in the wider interest of dispensation of justice. 23. Hence, the sufficient cause being the cause for which the defendant could not be blamed for his absence such a defence in the instant case as extended by the appellant deserves to be accepted in the wider interest of dispensation of justice. 23. Owing to the above, the Appeal from Order is allowed. The impugned order dated 25.09.2013 is set-aside. The application under Order 9 Rule 13 filed by the appellant in Original Suit No.570 of 2010, “Mr. Prashant Kumar vs. Dr. Prerna Singh,” is allowed. The suit is restored to its original number and the same may be decided by the learned Family Court on its own merits without being influenced by any observations made above after hearing the parties concerned. As the principal suit happens to be of 2010 and taking into consideration, the provisions contain under Section 21 (b) of the Hindu Marriage Act, Family Court is directed to decide the Suit No.570 of 2010, as expeditiously as possible, but not later than six months.