KRISHAN LAL Vs. MANJU

JUDGEMENT

(1.) By way of present appeal, the appellant has challenged the impugned order dated 22.10.2009 passed by learned Addl. Distict Judge, Tis Hazari Courts, Delhi, by which application under order 9 Rule 13 read with Section 151 CPC filed by him praying for setting aside the ex parte divorce decree dated 24.02.2005 in HMA petition no.402/2003 has been dismissed.

(2.) The facts relevant for the disposal of present appeal are as under:- Parties were married to each other on 11.04.1992 at New Delhi. The status of appellant was widower at the time of marriage with respondent and the respondent was widow . It was their second marriage. Respondent/wife has two children from first marriage. An ex parte divorce decree was passed in favour of the respondent on 24.02.2005 by the learned ADJ, Delhi dissolving the marriage between the parties on the ground of cruelty and desertion i.e. under Section 13(1)(ia)&(ib) of the Hindu Marriage Act (hereinafter referred to as the Act). The appellant had moved an application under Order 9 Rule 13 r/w Section 151 CPC before the learned trial court alleging therein that he had come to know of the aforesaid judgment/decree only on 09.07.2008 during the proceedings of case no.HMA 474/2007 which was filed by him in the court of learned ADJ, Delhi, against the respondent under Section 9 of the Act. It is alleged that the appellant was in constant touch with the respondent in other litigations i.e. the HMA no. 572/2002 under Section 9 of the Act which was dismissed in default on 11.03.2003, civil suit no.166/2003 decided on 28.11.2006 before the court of Shri Vipin Kumar Rai, Civil Judge, Delhi and one criminal case was pending disposal since 2002 in Gohana (Haryana) but the respondent never disclosed the factum of grant of divorce to the appellant. The appellant could have been served in aforesaid courts where the litigation between them was pending. It is stated that respondent/wife has given three addresses of the appellant in the divorce petition. Out of which, the address of Gandhi Nagar was left by him in 1993 and he had shifted to Govindpuri, Kalkaji, New Delhi i.e. second address. There the appellant had never received any summons of divorce petition. The third address mentioned is of Basai Darapur. Even that address is incorrect and the appellant was never served at the aforesaid address also. It is alleged that respondent/wife had also filed a revision petition against appellant challenging the order passed against her by the Magistrate at Gohana Court at Sonipat. It is contended that the respondent could have served the appellant/husband with the summons of divorce petition at Gohana court and there is no reason why the summons of divorce petition were not served there. It is alleged that the respondent/wife never wanted to serve the appellant/husband and by manipulation she had got ex parte decree of divorce.

(3.) The said application was opposed by the respondent/wife by filing a reply wherein it is alleged that the appellant/husband was served with the summons of divorce petition by registered AD post at Gohana address for 02.01.2004 but he did not appear intentionally. He was also served by way of publication in the newspaper Dainik Tribunal , Hindi edition, for 29.03.2004 despite that he did not appear. The respondent has also alleged that appellant had deliberately chosen not to appear. The respondent further took the stand that the ex parte divorce decree was passed on 24.02.2005 whereas the application under order 9 Rule 13 CPC was filed on 30.07.2008, as such the same was barred by limitation. It is alleged that the appellant/husband was duly served by the registered post as well as by way of publication, as such he had taken a false stand that he had come to know only on 09.07.2008, when an application was filed in the proceedings under Section 9 of HMA by respondent stating therein that divorce decree has been passed.