SIDDHARTHA AHULUWALIA Vs. MANISHA BHASKAR

JUDGEMENT

(1.) A divorce suit was instituted on 04.04.2011 by the appellant in which summon was issued to the respondent fixing 28.05.2011. As respondent was not present, the Court again issued summon to the respondent fixing 04.07.2011. That day also the respondent was not present. The appellant filed an application for service of summon upon the respondent through publication. The same was allowed fixing 05.09.2011. The summon was published in the daily newspaper, namely, 'Shikhar Sandesh' on 06.07.2011. On 05.09.2011, appellant was present with his counsel, but the respondent was absent and 12.09.2011 was fixed. On 17.09.2011 due to absence of the respondent, the Court passed an order to proceed ex-parte fixing 17.09.2011. Ex-parte hearing was done on 17.09.2011 and judgment was delivered same day. The Family Court allowed the application under Section 13 of the Hindu Marriage Act and the marriage held on 23.11.2005 between the parties was dissolved by a Decree of Divorce. Thereafter on 01.11.2011, an application under Order 9 Rule 13, read with Section 151 of C.P.C. and Section 5 of the Limitation Act was filed by the respondent for setting aside the ex-parte judgment and decree dated 17.09.2011. In the said application, the respondent stated that she is residing in her in-laws' residence at 162/1 Rajpur Road, Kishanpur, Dehradun. The respondent further stated that on 31.10.2011, the appellant, during the course of a telephonic conversation with the respondent, revealed that he has obtained an ex-parte decree of divorce against her. She immediately engaged an Advocate, who, after enquiring from the Family Court, Dehradun, came to know that the appellant had filed a suit for divorce against the respondent. It was submitted in the application that no summon of the said case was ever served upon the respondent and she had no knowledge about the pendency of the said suit prior to 31.10.2011. It was also mentioned in the application that the appellant had never informed the respondent about the decree and the respondent is still residing in her in-laws' house. It was also stated in the said application that the appellant played fraud upon the respondent as well as upon the Court and has secured an ex-parte decree of divorce. A prayer was, therefore, made for setting aside the ex-parte decree. Objection was filed to the said application by the appellant, in which the appellant came up with the case that he had, at number of times, informed the respondent regarding institution and pendency of Divorce Suit; but, all the times, she refused to attend the Court. It was also stated that the notices were duly issued and served upon the respondent at her address, i.e. 162/1 Rajpur Road, Kishanpur, Dehradun, but she, again and again, avoided the same. Appellant also contested the delay on the ground that the application moved by the respondent never suggested a single word in regard to the reasons for condonation of delay. In the objection, it was also mentioned that the appellant stood duly married before the filing of the application moved under Order 9 Rule 13 C.P.C. and the application deserves to be dismissed. The learned Family Court, after hearing the parties, allowed the application moved under Order 9 Rule 13 C.P.C. and set aside the ex-parte judgment and decree dated 17.09.2011 passed in Original Suit No. 223 of 2011 and the case was restored to its original number.

(2.) Learned Senior Advocate for the appellant submitted that the respondent had sufficient knowledge about the pendency of the case, as she was telephonically informed. He also submitted that she was served by registered post, which was returned back. It is contended by him that, in any case, the respondent stood served by way of publication.

(3.) On the other hand, learned counsel for the respondent submitted that, before passing the order for service by way of publication, the Court directed service by both ways, i.e. by way of registered post as well as through messenger. He submitted that, in the present case, though the notice was sent by registered post, but no steps were taken to effect service through messenger and, further, the registered post also came back with the remark 'unclaimed'. He further contended that when the same returned back with the remark 'unclaimed', the Court, before passing order for publication, should have issued notice through messenger of the Court as provided under Order 5 Rule 9 of C.P.C. This was not done. He also submitted that the newspaper, known as 'Shikhar Sandesh' is not known to the public in general and has no wide circulation in district Dehradun.