LALITA Vs. MOTILAL

JUDGEMENT

(1.) Defendant appellant has directed this appeal against the order dated 26.7. T999 passed by 1st Addl. District Judge, Barwani, in Misc. Case No. 12/98, thereby rejecting the application filed on behalf of the appellant for setting aside the ex parte decree dated 10.11.1997 in Civil Case No. 5A/97 under Order 9 Rule 13, CPC.

(2.) Briefly stated the facts of the case are that respondent Motilal filed an application under Section 13 of the Hindu Marriage Act, for grant of decree of divorce against the appellant in the Court of 1st Addl. District Judge, Barwani. The notice of the said application was sent to the defendant-appellant by Regd. Post A/D It is stated that the notice of application sent to the appellant-defendant returned to the Court concerned through the post with the endorsement that the addressee refused to take the letter in question. On the aforesaid report, the learned Trial Court proceeded ex- pa rte against the appellant and on the basis of the evidence of the respondent an ex parte decree of divorce was passed against the appellant uide order dated 10.11.1997 in Civil Suit No. 5A/97. It is also the case of the appellant that on getting the information of the aforesaid ex parte decree, on 9.7.1998, she filed an application before the Trial Court under Order 9, Rule 13, C.P.C. for setting aside the said decree, mainly on the ground that the notice of the original application was not refused and properly served on the appellant. The application was resisted on behalf of the respondent. On appreciation of the evidence recorded on the petition, the learned Trial Court dismissed the petition filed by the appellant under Order 9, Rule 13 C.P.C. and refused to set-aside the decree passed ex-pa rte.

(3.) The only contention of the learned Counsel for the appellant is that the learned Trial Court under Section 114 of the Evidence Act held that the notice of the original application is validly served on the appellant. In this respect, learned Counsel submitted that from the statement of the appellant recorded on the application filed under Order 9 Rule 13, C.P.C. the presumption stands rebu'tted. As such, the learned Trial Court should have allowed the application of the appellant filed under Order 9, Rule 13 C.P.C.