SATYA BHAMA MISHRA Vs. KAMLAPATI DEVI

JUDGEMENT

(1.) I have heard learned Counsel for the revisionists and learned Counsel for respondent No. 1 and perused the record. The instant civil revision under section 115, C.P.C., is directed against the order of Additional District Judge, Court No. 6, Barabanki passed in Misc. Case No. 77 of 2000, Smt. Kamlapati v. Raghvendra and others, whereby application 3-A under Order IX, Rule 13, C.P.C. read with section 5 of the Limitation Act of applicant/respondent No. 1 has been allowed and the ex-parte judgment and decree dated 22.3.1984 passed in Original Suit No. 18 of 1984, Kamla Prasad Mishra v. Kamlapati Devi, has been set aside and the case has been restored to its original number.

(2.) Brief facts giving rise to the instant revision are that Late Dr. Kamla Prasad filed a petition under section 13 of Hindu Marriage Act for dissolution of his marriage with respondent No. 1 in the Court of Civil Judge (Senior Division), Barabanki contending that he was married to respondent No. 1 in 1954 and out of this wedlock three children Raghvendra (respondent No. 2), Rabindra Prasad (respondent No. 3) and a daughter Riya were born. The father of the respondent No. 1 had made a gift of his entire property in 1969 to her and he died in the same year. It has been further contended that respondent No. 1 after the death of her father insisted that the plaintiff who was a Lecturer in Saket, Post Graduate College, Faizabad to live with her and look after the property gifted by her father to her. The petitioner did not agree for this, as a result whereof the attitude of respondent No. 1 changed towards him and she started to harass the petitioner and even treated him with cruelty. In 1973, respondent No. 1 without asking the petitioner left his house and started residing in her father's home and declared that she will reside there and look after the property of her father. It is contended that efforts were made to bring back respondent No. 1 but she did not agree. It has been alleged that respondent No. 1 deserted the petitioner since 1973 and has refused to live with the petitioner without any justification. It has also been contended that respondent No. 1 has treated the petitioner with cruelty and has severed matrimonial relationship with the petitioner for the last almost ten years. The Court held service upon respondent No. 1 sufficient by refusal and proceeded ex-parte and vide its judgment dated 22.3.1984 decreed the petition of the husband/petitioner for dissolution of marriage with respondent No. 1.

(3.) An application under Order IX, Rule 13 read with section 5 of the Limitation Act for setting aside the ex-parte judgment and decree was moved with a delay of about 16 years by respondent No. 1 in the Court of District Judge which was transferred to the Court of Additional District Judge, contending that her husband has died on 6.4.2000 and she has learnt that her husband had filed original Suit No. 18 of 1984 in the Court of Civil Judge (Senior Division), Barabanki under section 13 of Hindu Marriage Act for dissolution of marriage. It was also contended that Late Kamla Prasad had given his wrong address of village Kisunpur, Post Office Rudhauli, District-Barabanki, while in fact, he was not residing at that address. It was also contended that after the marriage, the applicant has continuously lived in village Ugai Agarh, District-Basti and the petitioner had also given her wrong address and managed to get a report of refusal and on this basis succeeded in obtaining ex-parte decree while neither any information of the pendency of the proceedings had been received by the applicant nor any summons had been received by her. On learning about the case, the applicant got the record inspected and filed the application for setting aside the ex-parte judgment and decree. Prayer for condonation of delay in moving the application has also been made in the same application.