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2019 DIGILAW 716 (RAJ)

Baldev Singh Jat Sikh v. Preena

2019-03-05

PRADEEP NANDRAJOG, PUSHPENDRA SINGH BHATI

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JUDGMENT : Pushpendra Singh Bhati, J. 1. This civil misc. appeal under Section 19 of the Family Courts Act, 1984 has been preferred claiming the following relief: "It is therefore prayed that this appeal may kindly be allowed and order dated 17.04.2017 passed by the learned Family Court, L.D. Kiradu, RHJS, District Sriganganagar in Civil Misc. Case No. 67/2013 (Preena @ Manjeet Kaur vs. Baldev Singh) may kindly be quashed and set aside. And application filed by the respondent under Order 9 Rule 13 R/w. Section 151 CPC may kindly be rejected. Any other relief, direction that Hon'ble Court may feel just and proper in facts and circumstances of the case may kindly be issued in favour of the petitioner." 2. The pleaded case of the appellant is that in a divorce petition filed by him, notices were issued by the learned trial court on 07.07.1986, which were served, but the respondent did not choose to appear before the learned trial court. Thereafter, the learned trial court proceeded ex parte and passed judgment and decree dated 9.7.1987 annulling the marriage between the parties. 3. The respondent, in the year 2013, had moved an application under Order 9 Rule 13 CPC before the learned court below for setting aside the ex parte judgment and decree dated 09.07.1987, which was allowed by the learned court below vide the impugned order dated 17.04.2017, while setting aside the said ex parte judgment and decree dated 09.07.1987. 4. At the threshold, learned counsel for the appellant has demonstrated from the impugned order dated 17.04.2017 that the respondent had claimed knowledge of the judgment and decree dated 09.07.1987 from 13.04.2009, so as to explain the delay in filing the application filed under Order 9 Rule 13 CPC in the year 2013. 5. Learned counsel for the appellant has also shown the judgment and decree dated 09.07.1987, in which the learned trial court had recorded that despite service, no one appeared for the respondent. 6. Learned counsel for the appellant has further taken us to copy of the judgment dated 15.12.1988 passed by learned Judicial Magistrate, Ist Class, Gidderbaha, whereby the application preferred by the respondent under Sec. 125 Cr.P.C. seeking maintenance has been decided. Learned counsel for the appellant has referred to para 5 of the said judgment, which reads as follows: "5. 6. Learned counsel for the appellant has further taken us to copy of the judgment dated 15.12.1988 passed by learned Judicial Magistrate, Ist Class, Gidderbaha, whereby the application preferred by the respondent under Sec. 125 Cr.P.C. seeking maintenance has been decided. Learned counsel for the appellant has referred to para 5 of the said judgment, which reads as follows: "5. First of all, I will take up the case of applicant No. 1 Prina. Case of the respondent is that the applicant left her matrimonial house after 5-7 days, whereas according to applicant, she was turned out by the respondent after five months of marriage. Respondent had moved application for divorce which was pleaded in the reply. During the pendency of the application, the petition was decided and ex parte divorce was granted in favour of the respondent. Copy of judgment of District Judge, Sri Ganganagar is Ex. R2. Desertion was the ground taken in the petition. Respondent refused to appear in the court and as proceeded against ex parte by the District Judge, Sri Ganganagar. Even after the written reply of respondent, application did not take any step to get the ex-parte decree set aside. In this way, judgment Ex. R2 has become final between the parties. In the said judgment, ground of respondent Baldev Singh that the application Prina had deserted him was accepted. Finding of civil court are binding between the parties. In this way, I hold that the applicant Prina herself is not willing to go and reside with the respondent and that she has deserted the respondent. Respondent has reasonable cause not to maintain the applicant Prina. Accordingly, application qua Prina applicant stands dismissed." 7. Learned counsel for the appellant submits that the learned court below had recorded the fact of the ex parte divorce being brought to its knowledge by the appellant and the order of divorce was on record as Exhibit-R/2 in the application seeking maintenance under Section 125 Cr.P.C. filed by the respondent. 8. Learned counsel for the appellant further submits that the order was brought on record by the appellant, and that, the respondent had complete knowledge of the ex-parte judgment and decree dated 09.07.1987. 9. 8. Learned counsel for the appellant further submits that the order was brought on record by the appellant, and that, the respondent had complete knowledge of the ex-parte judgment and decree dated 09.07.1987. 9. Learned counsel for the respondent however, is not in a position to refute the position that since the application seeking maintenance under Section 125 Cr.P.C. was filed by the respondent, which was decided on 15.12.1988, therefore, it cannot be possible that exhibit to the same being contested by the parties, was not in the knowledge of the respondent. 10. After hearing learned counsel for the parties as well as perusing the record of the case, we are of the opinion that the very premise of the impugned order dated 17.04.2017 is lost, as the said order presumes the date of knowledge of passing of the judgment and decree dated 09.07.1987 to the respondent to be 13.04.2009, while deciding the issue of delay in favour of the respondent. 11. It is a clear factum that the ex parte judgment and decree was passed against the respondent by a competent court on 09.07.1987, and in that order, we see that the learned trial court has recorded that the respondent has refused to accept the notice, and thus, virtually the service was complete. 12. This Court also finds that learned counsel for the respondent has not been able to refute knowledge of divorce decree as recorded in the order passed by the learned court below while deciding the aforementioned application under Section 125 Cr.P.C. vide order dated 15.12.1988. The learned court below in the application of the respondent has clearly recorded Ex. 2, which was ex parte judgment and decree granted in favour of the appellant on 09.07.1987. 13. The knowledge of passing of the aforementioned judgment and decree dated 09.07.1987 has been claimed only after 13.04.2009, which is a blatantly false averment on the face of it. 14. Apparently, the respondent had the complete knowledge of the judgment and decree dated 09.07.1987 as the said ex parte judgment and decree dated 09.07.1987 was Exhibit-R/2 in the pleadings, as the same was recorded by the learned court below in the factual narration, which has been quoted hereinabove. 15. We thus do not find any reason why the ex parte judgment and decree dated 09.07.1987 could have been interfered with at such belated stage. 15. We thus do not find any reason why the ex parte judgment and decree dated 09.07.1987 could have been interfered with at such belated stage. Therefore, looking into the extreme delay, which has not been explained, rather has been wrongly mentioned by the respondent, we find sufficient reason that the judgment and decree dated 09.07.1987 ought not to be interfered with vide the impugned order dated 17.04.2017, after an inordinate and unexplained delay. 16. In light of the aforesaid observations, the present appeal is allowed, and while affirming the judgment and decree dated 09.07.1987 passed by the learned trial court, the order dated 17.04.2017 passed by learned Judge, Family Court, Sriganganagar in Civil Misc. Case No. 67/2013 (Preena @ Manjeet Kaur vs. Baldev Singh) is quashed and set aside. The application moved by the respondent under Order 9 Rule 13 read with Section 151 CPC accordingly stands rejected.