ANITHA SINGH Vs. T DINESH KUMAR SINGH

JUDGEMENT

(1.) Both these CM As are cpnnected and can be disposed of by a single order.

(2.) The appellant in both the appeals is the wife. The respondent- husband filed 0 P No 214 of 1984 on the file of the II Addl Judge, City Civil Court, Hyderabad for dissolution of the marriage. The summons were issued on 17-7-1984 but they were not served on the wife. On 5-11-1984, the II Addl. Judge, City Civil Court, Hyderabad, after paving noticed that the wife was served pith notice, decided to proceed ex parte of the matter and that service of notice was sufficient. On 19-11-1984, PW1 was examined and Exs A-1 to A-12 were marked on behalf of the petitioner- husband and, on 20-11-1984. the Court Passed an ex parte order granting decree of divorce, Thereafter the wife filed I A No 396 of 1985 under Order IX Rule 13 read with section 151 of the Code of Civil Procedure to set aside the ex parte order made in OP No 214 of 84. The learned II Addl. Judge dismissed the said I A holding that, after amendment of Order IX Rule 13 of the Code of Civil Procedure, even though there is no service of summons, the ex parte decree need not be set aside. Against the order in 0 P No 214 of 1984, the wife filed C M A No 1387 of 85 and against the order in I A No 396 of 85 she filed C M A No 1039 of 1985.

(3.) It is not in dispute that summons were not served on the wife i.e. the appellant in these appeals. Sri T Veerabhadraiah, the learned counsel for the respondent-husband, however submits that there was enough of correspondence and also exchange of notices between the husband and the wife and the wife was also aware that the case was posted to 25-10-1984 but yet she did not attend the Court and, as a matter of fact,she filed a petition in the Supreme Court to transfer the 0 P and, under these circumstances, she had sufficient knowledge about the pendency of the 0 P and also about the posting of the same, Yet she did not care to appear and therefore the lower court is justified in not setting aside the ex parte order. The learned counsel also relied on the amendment to Order IX Rule 13 of the Code of Civil Procedure. The proviso on which reliance is placed reads thus : "Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendent had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim."