ARCHANA Vs. AVANISH

JUDGEMENT

(1.) THIS first appeal is filed under Order 43(1)(d) of Code of Civil Procedure, 1908 (CPC) against the impugned order of the trial court dated 22.2.2011 by which trial court dismissed the application under Order 9 Rule 13 CPC of the present appellant (respondent in the petition for judicial separation in the court below). The effect of dismissal of the application under Order 9 Rule 13 CPC is that the exparte decree of a judicial separation dated 3.2.2005 will stand. I may note that there is pending a second petition for divorce on the ground that appellant herein has not complied with the decree of divorce and that petition is being contested on merits and nothing is observed herein with respect to the merits of the matter in the second petition for divorce.

(2.) THE case of the appellant herein was that she was never served in the petition for judicial separation inasmuch as the appellant had shifted from the Mumbai address where she was living i.e. flat No. 604 -D, Dheeraj Regency, Borivali (East), Mumbai. It is argued that the flat in question in Mumbai was let out w.e.f. 1.5.2004 and the appellant had shifted to Bangalore. It is argued that consequently no summons were ever received by the appellant in the judicial separation proceedings being petition No. 257/2004 (registered as HMA No. 974/2009 in the Court at Delhi after transfer from the Court at Haridwar).

(3.) THEREFORE , the court below in my opinion, has rightly come to a conclusion that the case of the appellant not living at Mumbai address and having shifted to Bangalore is quite clearly not believable.