HARSHABEN SHARADBHAI PANDYA Vs. SHARADBHAI K. PANDYA

JUDGEMENT

(1.) xxx xxx xxx.

(2.) Mr. Dhaval Dave, learned Counsel appearing for the petitioner contends that the learned Judge has misread the decision of the Court in the case of Chunilal Nathubhai v. Abdul Razak Shaikh and Anr. reported in 21 G.L.R. 562 inasmuch as in that case after the summons being served, the party did not appear in the court. However, in the present case, after the summons was served she engaged the lawyer, and though that said lawyer will take care of the case. However, the case was not attended by the lawyer, as the vakalatnama was not filed by his clerk. Relying on the decision of the Apex Court in the case of Rafiq v. Munshilal reported in AIR 1981 SC 1400 it is submitted that the party should not be punished for the negligence of the Counsel. The learned Counsel has also relied on the decision of the Apex Court in the case of Balwinder Kaur v. Hardeep Singh reported in JT 1997 (9) SC 157. On the other hand Mr. Akil Qureshi learned Counsel appearing for the respondent submits that there is a total non-action on the part of counsel in September 1993 she did not make any enquiry about the progress of the case from her counsel. If she had made little effort, this situation would not have arisen. He further submits that in action on the part of the petitioner has led to a peculiar situation inasmuch as that the husband has contacted second marriage. Thus, if the ex parte decree is set aside it will affect the rights created in favour of the second wife of his client.

(3.) I have considered the rival contention of her parties. The Trial Court has heavily relied on the decision in the case of Chunilal Nathubhai (supra). In that case the court held that if on account of non-service of summons a defendant does not appear in the suit and an ex parte decree is passed against him, time beings to run against him for the purpose of making an application for setting aside the ex parte decree from the date on which he knew that an ex parte decree was passed against him. The court further held that if the defendant is served with summons and he has appeared in the suit, then it is his duty to attend the court on all subsequent dates of hearing. In such case limitation shall be computed from the date of the order. In my view the said case has no application to the facts of the present case. It is not disputed by the petitioner that the Summons were served on her. Her positive case is that after receiving the summons she travelled from Bombay to Ahmedabad and engaged a lawyer. It was the negligence on the part of the lawyer that the vakalatnama was not filed. The version of the petitioner cannot be disbelieved only for the reasons that the affidavit has not been filed. The learned Judge was in error in rejecting the version given by the petitioner only on the ground that the affidavit of the advocate has not been filed. The Apex Court in Rafiq's case (supra) has held. that a party should not suffer on account of negligence of the advocate. After engaging the lawyer the party may remain supremely confident that the lawyer will look after his/her interest. This exactly has happened in the present case. After engaging the lawyer, the petitioner was confident that her case is being looked after her lawyer. She cannot be held responsible for not filing of vakalatnama by the lawyer or his clerk. The Apex Court recently in Balwinder Kaur's case (supra) has observed that the petition for divorce is not like any other commercial suit. A divorce not only affects the parties, their children, if any, and their families but the society also feels its reverberations. The court further said that stress always be on preserving the institution of marriage. In the present case after the evidence of the husband was recorded on 31-12-1993 the court did not take care to look as to why the defendant was not present. The court immediately proceeded to pass ex parte decree without making further enquiries. The respondent after obtaining the ex parte decree Contacted second marriage on 30-4-1995, i.e. within less than four months. Before contacting the second marriage he ought to have assured that his wife is informed of the ex parte decree. In such case it is expedient that in case of an ex parte decree of divorce the other spouse intends to remarry, a notice should be given to the other party as a matter of precaution and to avoid later complications. If this case is not taken and thereafter if there is any problem the party should thank himself. Thus, in my view the learned Judge has committed an error in rejecting the application for ex parte decree for divorce on the ground of limitation. In view of this, the aforesaid revision application is allowed and the order dated 15-12-1995 passed by the City Civil Court is quashed and set aside. The petitioner's application Exh. 21 is granted. The ex parte decree dated 10-1-1994 passed in Hindu Marriage Petition No. 296 of 1993 is quashed and set aside. The parties shall appear in person or through their advocates before the Trial Court on 22-6-1998. Rule is made absolute.