KUNJBIHARI BHADORIA Vs. KUSUMLATA BHADORIA

JUDGEMENT

(1.) THIS Civil Revision impugns an order dated 7.1.2002 passed by learned I Additional District Judge, Bhind in Misc. Civil Case No. 19/1999 setting aside the decree and judgment passed ex-parte on 15.2.1999 in Civil Suit No. 1A/98.

(2.) IT is said that the parties to the civil revision got married on 11.2.1982 and a child was born in the wedlock on 13.12.1988. It is also said that the applicant filed a suit for divorce under section 13 of the Hindu Marriage Act on 20th April, 1995 being suit No. 39/95 which was dismissed on 31.1.1997 as the grounds raised therein were not found proved. It is also stated that thereafter a second suit was filed on 31.8.1998 exactly on same ground including desertion and the same was decreed ex-parte on 15.2.1999 on the ground that the non-applicant refused to accept the summons. It is also said that the non-applicant came to know only on 12.7.1999 that she has suffered an ex-parte decree and thereafter she applied for certified copy which was received on 16.7.1999. She filed an application for setting aside the ex-parte decree under Order 9 Rule 13 of the CPC on 2.8.1999, which was allowed by the impugned order.

(3.) AS against that, it is urged on behalf of the non-applicant that the grounds taken in the second suit are identical to that taken in the first one and, therefore, there was no new plea for filing a suit for divorce. It is also urged that the case was fixed for 16.1.1999 and it does not appear that any summons were sent by a registered letter or by ordinary post which is said to have been refused by the non-applicant. It is further urged that this aspect has been dealt with in detail in para 8 of the impugned order. Thus, it is submitted that non-applicant was not at all aware of listing of the case or pendency of the second suit for divorce. It is further urged that the non-applicant had made a statement about pendency of the divorce in the maintenance proceedings only in respect of earlier suit which was rejected in January, 1997. Reliance Has been placed on a judgment of this Court reported in 2000 (II) MPWN 30 (Lalita (Smt.) v. Motilcd). It is said that a presumption of service .when addressee refused to take letter, is rebuttable and the same can be rebutted by a statement on oath by the non-applicant to show that the non-applicant had no knowledge about listing of the case.