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2023 DIGILAW 1258 (AP)

Thota Veera Venkata Satyanarayana Swamy v. Thota Veera Venkata Padma Kumari

2023-09-04

B.S.BHANUMATHI

body2023
ORDER : (B.S. Bhanumathi, J.) This revision petition, under Article 227 of the Constitution of India, is filed against the order, dated 05.01.2023, allowing I.A.No.174 of 2018 in H.M.O.P.No.68 of 2015 on the file of the Court of Senior Civil Judge, Peddapuram, filed under Section 5 of the Limitation Act to condone delay of 547 days in filing petition under Order IX Rule 13 CPC, vide I.A.No.113 of 2022, to set aside the ex parte order, dated 18.02.2016, passed in O.P.No.68 of 2015 granting decree of divorce in favour of the petitioner. 2. Heard Sri T.V.V.Satyanarayana Swamy, learned counsel for the revision petitioner/husband and Sri T.V.S.Prabhakar Rao, learned counsel for the respondent/wife. The parties shall hereinafter be referred to as the husband and wife. 3. The husband filed O.P.No.68 of 2015 seeking decree of divorce against the respondent. Basing on the endorsement of refusal of the notice sent through registered post and the report of the Amin of the court, the wife was set ex parte and an ex parte order, dated 18.02.2016, was passed granting decree of divorce. 4. The wife sought to condone the delay of 547 days in filing the petition seeking to set aside the ex parte order stating briefly as follows: Her husband is an advocate by profession and that she left for her parental home in the year 2013 along with the children as her husband beat her. Later, when she went to her husband, he did not allow her into the house and had sent a petition for divorce by mutual consent and as she declined to sign the petition and waited for the answer to her renewed request to permit her to join him. As she did not get the reply, she got issued him a legal notice on 09.05.2017 expressing her willingness to join her husband. But, he gave a reply notice with false averments. By virtue of reply notice, for the first time, she came to know that her husband filed O.P.No.68 of 2015 and obtained an ex parte order on 18.02.2016. She never resided at Peddapuram or nearby places. Except her marriage was performed at Sri Satyanarayana Swamy temple, Annavaram, within the jurisdiction of the Court of Senior Civil Judge, Peddapuram, no other part of cause of action is within the jurisdiction of that Court. She and her husband lastly resided together at Eluru, West Godavari District. She never resided at Peddapuram or nearby places. Except her marriage was performed at Sri Satyanarayana Swamy temple, Annavaram, within the jurisdiction of the Court of Senior Civil Judge, Peddapuram, no other part of cause of action is within the jurisdiction of that Court. She and her husband lastly resided together at Eluru, West Godavari District. The approach of her husband shows that he purposefully filed O.P.No.68 of 2015 at Peddapuram and no notice was served on her. Her enquiries revealed that the Court set her ex parte on the report of the Amin that she had refused to receive the summons. Thus, she filed both petitions for condonation of delay in seeking to set aside the ex parte order and for setting aside the ex parte order, dated 18.02.2016. 5. The petitions were opposed by filing counter of the husband denying the averments in the petition and further stating that there was proper service of notice and that it is only the wife who refused to receive the notice in the main petition and there is an inordinate delay of 547 days in filing the petition and the same cannot be condoned, since she knows fully well about the petition seeking divorce filed by her husband at the time of the service of notice through Court Amin. 6. After hearing both parties and considering the legal propositions cited by both the parties, the trial Court allowed the petitions observing that in the facts and circumstances of the case, there is sufficient reason and that it is a fit case to take a liberal approach to allow the petitions. While allowing the petitions, costs of Rs.2,000/- were imposed on the wife payable to the Mandal Legal Services Authority, Peddapuram. 7. Having been aggrieved by the order, the husband filed this revision petition claiming that the trial Court condoned the delay without there being no sufficient cause and that the trial Court ought to have seen that the wife had knowledge of filing the divorce petition and yet did not choose to contest the HMOP and that reasons given by the trial Court in allowing the petition are not sound and tenable. 8. 8. The learned counsel for the husband submitted that the wife had sufficient knowledge of filing of the petition filed by her husband seeking divorce by mutual consent and yet neglected to appear before the Court and contest the petition and falsely contended that she had no knowledge and therefore, the delay cannot be condoned, and consequently, the order granting divorce cannot be set aside. He placed reliance on the decision of the Supreme Court in Balwant Singh (dead) v. Jagdish Singh and others, (2010(9) Supreme Court Cases 685), wherein, it was held at paragraph Nos.25, 26 and 33 to 35 as follows: "25. We may state that even if the term ‘sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of 'reasonableness' as it is understood in its general connotation. 26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. 33. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. 33. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22 Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. 34. Liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect 'sufficient cause' as understood in law. [Advanced Law Lexicon, P.Ramanatha Aiyar, 2nd Edition, 1997]. 35. The expression 'sufficient cause' implies the presence of legal and adequate reasons. The word 'sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plenitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated." 9. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated." 9. The learned counsel for the wife submitted that the wife had come to know about passing of the ex parte decree only on receipt of reply notice and that the endorsement of service of notice was managed by the husband since he is a practicing advocate and an ex parte order was obtained by fraudulent means. He further submitted that the attitude of the husband is evident from the fact that he is practicing at the Courts at Eluru, West Godavari District, and the parties lastly lived together in the same area, but, he filed petition seeking divorce before the Court at Peddapuram, just based on one fact that their marriage was performed at Sri Satyanarayana Swamy temple, Annavaram, which falls within the jurisdiction of the Court at Peddapuram. He further submitted that since there is no actual service of notice on the wife, she was not aware of filing of the petition for divorce or passing of the ex parte order till she received the reply notice. He further submitted that the husband has not so far re-married, and therefore, even if the delay is condoned, and the petition in the main OP is disposed of on merits, no prejudice would be caused to the husband and on the other hand, the matter can be adjudicated on merits by taking pleadings and the evidence of both parties into consideration. He placed reliance on the decision of this Court in Srinivas Kumar Mowle v. Chandrasekhar Mowle and others ( 2001(3) ALD 670 ), wherein para 12 of the decision of the Supreme Court in Bhagwan Swaroop v. Afool Chand [ AIR 1983 SC 355 ] was referred which is noted hereunder: "12. It is no doubt true that a Code of Procedure is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up'. Procedural laws are no doubt devised and enacted for the purposes of advancing justice. It is no doubt true that a Code of Procedure is designed to facilitate justice and further its ends and it is not a penal enactment for punishment and penalty and not a thing designed to trip people up'. Procedural laws are no doubt devised and enacted for the purposes of advancing justice. Procedural laws, however, are also laws and are enacted to be obeyed and implemented. The laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties. On the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in the state of confusion and quandary. Difficulties arise when parties are at default in complying with the laws of procedure. As procedure is aptly described to be the hand-maid of justice, the Court may in appropriate cases ignore or excuse a mere irregularity in the observance of the procedural law in the larger interest of justice. It is, however, always to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. Justice means justice to the parties in any particular case and justice according to law. If procedural laws are properly observed, as they should be observed, no problem arises for the Court for considering whether any lapse in the observance of the procedural law needs to be excused or overlooked. As I have already observed depending on the facts and circumstances of a particular case in the larger interests of administration of justice the Court may and the Court in fact does, excuse or overlook a mere irregularity or a trivial breach in the observance of any procedural law for doing real and substantial justice to the parties and the Court passes proper orders which will serve the interests of justice best". 10. 10. For the purpose of evaluating whether there is 'sufficient cause' for condonation of delay or to set aside the ex parte order, the reason assigned by the wife is that she was not aware of the proceedings and that the service of summons was managed and that her husband mischievously filed petition in a Court where there was no part of cause of action arose, except performing the marriage. Of course, there is a recorded statement of the Amin and the postal endorsement to the effect that the wife refused to take notice in the main OP. It is not uncommon to allege that service of notices or summons are managed. Therefore, in each case, a Court has to carefully examine whether there is actual service of notice or refusal to receive notice. Except basing on the endorsements of receipt of notice, no further steps were taken to examine the Amin or the postal authorities to prove that the wife had 'refused' to receive the notice. Under these circumstances, merely based on the endorsement, in the light of the allegations of the wife, they cannot be treated as gospel truth. Therefore, all the delay cannot be viewed as lapse on the part of the wife. As such, in the present case, the statement of the wife that she had come to know about the proceedings only through reply can be reasonably considered in her favour. Then, the delay would not be so long as is sought to be condoned. If it is so, there is 'sufficient cause' for the wife to seek to set aside the ex parte order. It is pertinent to note that no revision was filed against the order in I.A.No.113 of 2022 filed under Order IX Rule 13 CPC which is part of the common order in which I.A.No.174 of 2018 filed under Section 5 of the Limitation Act now under challenge was disposed. 11. Learned counsel for the wife submitted that the dates of reply notice are mentioned in the written arguments filed before the trial Court to the effect that the reply notice, dated 16.06.2019, was received on 18.06.2019. Even considering such date as knowledge, the delay in filing petition under Order IX Rule 13 CPC would be less than two months after deducting the period of thirty (30) days allowed under the Limitation Act. Even considering such date as knowledge, the delay in filing petition under Order IX Rule 13 CPC would be less than two months after deducting the period of thirty (30) days allowed under the Limitation Act. As such, there is no reason to interfere with the order impugned in the revision on the ground that the reasons assigned by the trial Court are not expansive. 12. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed.