PREM PARKASH GUPTA Vs. ASHA RANI

JUDGEMENT

(1.) THIS revision petition has been filed by the husband-Prem Parkash Gupta challenging order of Additional District Judge, Ladhiana. dated October 3, 1989, whereby he accepted application filed under Order 9 Rule 13 of the Code of Civil Procedure and set a side exparte decree dated January 23, 1987, granting a divorce on the application of the husband under Section 13 of the Hindu Marriage Act.

(2.) ASHA Rani in her application for setting aside ex parte decree alleged that in fact she was residing with her own husband in House No. 3107, Sector 38-D, Chandigarh at the relevant time. No Process Server approached her for effecting service and she never refused to accept any. She further alleged that she was not residing in house No. 428 Sector 15-A, Chandigarh, with her father at the relevant time. She had no knowledge either of the petition filed by her husband for getting divorce of the ex parte decree obtained therein. On April 25, 1987, she was sent by her husband to Ludhiana to bring a gold chain from her mother's sister's husband, as money was required for payment to the labourers by her husband. He was to follow her on the following day. However, on the telephone she was informed that hi had got a divorce from her and had sent her to Ludhiana to get rid of her. She went to her parents and lodged a complaint with Social Welfare Advisory Board, Chandigarh, on May 11, 1987. The said Board sent for her husband for May 25, 1987. On that day he produced a copy of the divorce decree. On letting the same she visited Ludhiana, got the file inspected on June 12, 1987 and she filed the application for setting aside the ex parte decree on June 15, 1987. The application was contested by the husband, inter alia, alleging that the same was barred by time. Asha Ram was residing in House No. 426, Sector 15 A, Chandigarh, and not with him in House No. 3107, Sector 38-D, Chandigarh He denied the assertions of wife regarding refusal of the service of the summons, He further alleged that after getting divorce he had re married. The following issued were furred on October 5, 1987 : (1) Whether there are sufficient grounds for setting aside ex parte decree ? OPA (2) Whether the application is within limitation ? OPA (3) Relief. Subsequently on September 5, 1989, the following additional issue was framed : (2-A) Whether Prem Parkash respondent has contracted valid marriage on 28-6-1987 with Such Lata ? If so, with that effect ?

(3.) THE Additional District Judge decided issues Nos. 1 and 2 in favour of the wife. Under issue No. 2-A he decided that the husband had failed to prove that he had validly married Sneh Lata. On the findings aforesaid, the application was allowed and the ex parte divorce decree was set aside. ISSUES NOS. 1 and 2: In a case where the defendant was duly served application for setting aside ex parte decree was to be filed within 30 days therefrom. However, in a case where the defendant was not duly served suet; an application could be filed within the aforesaid period commencing from the date of knowledge of the ex parte decree. In order to establish that Asha Rani was duly served, the husband produced the Process Server Karam Chand (RW 4 ). According to this witness he visited House No. 426, Sector 15-A, Chandigarh, to effect the service of the summons. He identified Asha Rani in Court to be the person to whom summons were offered for service and she had refused to accept the same Ha proved his report Exhibit R. 2/a purporting to be attested by one Ashok Kumar who was not produced as a witness. The alleged affidavit of the Process Server made under the report was not attested by the Senior Sub Judge under whom the Process Server was working. Rather the signatures of Ashok Kumar appear at the bottom of the said affidavit/verification. This shews that Ashok Kumar and not attest the report but merely witnessed she (sic) of affidavit. Full address of Ashok Kumar is not mentioned on the summons. The report further shows that the copy with the summons was offered to A. Rani at House No. 426 in Sector 15-A, Chandigarh, who refused to accept the same. After 3 years, when Karam Chand made his statement in Court and identified Asha Rani the person to Whom the summons was offered, he was rightly disbelieved by the Additional District Judge 1 he least what was expected of the Process Server was to get identification of the person in whose name the summons were issued and then to get his report attested from one of the neighbours As stated above, the address of Ashok Kumar, the alleged witness, was not noted down It is on that account that Ashok Kumar could not be produced. On the basis of such a report it could not be held that Asha Rani had refuted to accept the summons. Further more, the Additional District Judge while ordering substituted service by publication of proclamation in the new-paper did not record his satisfaction in the said cider that Asha Rani could not be served in ordinary course. The order of Additional District Judge, dated July 29, 1986, simply recorded that Asha Rani had refused to accept the service and she be served through Punjab Kesari, Jalardhar. Subsequently, this order was modified and the notice was ordered to be published in "jagbani". Asha Rani produced sufficient evidence which indicated that at the relevant time she was living in her husband's house and not in the house of her father. She herself appeared as AW I and deposed that when her husband started factory in Chanidgarh, the along with her husband and two daughters started living in House No. 3107, Sector 38-D, Chandigarh. She got her daughter-Payal admitted in the school. To corroborate her own statement the other witnesses produced are AW 2 Jasbir Kaur, AW 4 Gopi Chand and AW 5 Sunil Kumar Sharma. Out of them AW 2 Jasbir Kaur is the Principle of the school where Payal was got admitted by Asra Rani Exhibit A. 1 dated December 1, 1986 is the admission form which was submitted by Asha Rani and signed by her giving address of House No. 3107, Sector 38d, Chandigarh This witness alto produced Exhibits A 2 and A. 3, copies of the after dance registers for the month of April 987, indicating the presence of Payal attending the classes. No suggestion was even put to these witnesses regarding manipulation of these documents during the cross examination. No reason it coming forth on the record to discarding this evidence When Payal was got admitted in the school at that time there was no dispute between the parties. AW 4 Gopi Chand is no doubt distantly related to Asha Rani, being husband of mother's sister, but that is no ground per se to discard his evidence According to this witness Asha Rani was living with her husband in the aforesaid bouse and once he toyed in their house on his visit to Chandigarh. AW 5 is Sunil Kumai Sharma, a General Merchant of Sector 38-D, Chandigarh. According to him Asha Rani used to make purchases of household articles from his shop. According to him Asha Rani was residing in the aforesaid house in May 1987. From the evidence alomaid it has been established that in fact in May 1987 Asha Rani was in fact residing with her own husband in House No. 3107, Sector 38--D. Chandigarh. Prem Parkash Gupta by filing the divorce petition and giving wrong address of Asha Rani who was in fact living in his own house at Chandigarh, filed the petition under Section 13 of the Hindu Marriage Act in the Court at Ludhiana. Although it was alleged that summons were sent through registered post also, there was no evidence on the record in this respect either of sending such notices by registered post or of service of aforesaid notices or its refusal As far as report of the Process Server is concerned, that was clearly an incorrect report and manipulated one. Furthermore, the husband has produced evidence that in Jagbant newspaper the notice was published on October 3, 1986 for appearance in Court on October 16 1986. However, RW 3 Kavinder Kapila, a representative of Hind Samachar, did not state that a copy of the proclamation published in the aforesaid newspaper was separately despatched to Asha Rani According to him the despatch register had been destroyed Prem Parkash Gupta (RW I) though denied that he was residing in House No. 3107 Sector 38-D, Chandigarh along with Asha Rani and the children, he admitted that he shifted to Chandigarh on starting of his factory. He took up the stand that he got his children admitted in Model School near House No. 3107, Sector 38 D, Chandigarh. However, he did not produce any witness from the aforesaid school. There was no reason as to why the school record produced by Asha Rani with respect to admission of her daughter Payal should be discarded. Having held as above that Asha Rani was not duly served in the petition filed by her husband for divorce, she could approach the Court within 30 days of her gaining knowledge of ex parte decree. Simple knowledge that some decree was passed against her was not enough. She was to acquire complete knowledge regarding the sounds on which such a petition was filed and ultimatly decreed. As already stated above, when she was sent to Ludhiana on April 25, 1987, it was on the following day that en the telephone she was informed about the divorce. At that time she did not acquire any knowledge as to from which Court ex pane divorce was obtained by her husband. She came to Chandigarh and lodged the complaint on May 11, 1987 with the Social Welfare Advisory Board. AW 3 Devender Nath, Secretary, of the aforesaid Board, deposed about the lodging of the aforesaid report on which Prem Parkash was summoned by letter dated May 8, l987 for May 25, 1987. It was on that day that Prem Parkash produced photostat copy of the ex parte decree of divorce. Asha Rani has also deposed to the aforesaid facts and she has further stated that thereafter she went to Ludhiana and inspected the records and ultimately filed the application under Order 9 Rule 13 of the Code of Civil Procedure on June 15, 1987 From the aforesaid facts it is quite clear that it was on May 25, 1987, when photostat copy of the decree was produced before the Welfare Advisory Board that it could be said that Asha Rani came to know about the full details of the ex parte decree passed against her. The application for setting aside ex parte decree filed on June 15, 1987 was thus quite within time. Findings of the Additional District Judge on issues Nos. 1 and 2 are, therefore, affirmed, holding that the application for setting aside ex parte decree was filed within time and that there was sufficient ground for setting aside the ex parte decree. Issue No. 2-A : As matter of fact in the absence of Sneh Lata with whom Prem Parkash had re-married, the question of validity or otherwise of this marriage should not be gone into as any finding recorded herein will not be binding on Sneh Lata. This issue was framed subsequently when the name of Sneh Lata was introduced in the evidence that Prem Parkash had married her after the decree of divorce and the objection was raised that on account of the aforesaid marriage the ex parte decree of divorce should not be set aside. Thus there are two parts of this issue. First relating to the validity of the marriage between Prem Parkash and Sneh Lata and secondly its effect on the present application. In reply filed by Prem Parkash to the application for setting aside ex pane decree, though it was stated that after passing of the aforesaid ex parte decree he had remarried, full details of the marriage were not disclosed, i. e. the name of the woman, the place and time of the marriage As already observed above, whan evidence was sought to be introduced necessity of framing this issue arose. No cogent evidence has been produced that Prem Parkash in fact married Sneh Lata. It was not pleaded by Prem Parkash that Sneh Lata was also know by any alias name of Rekha Rani. RW 5 Lakshmi Narais Pandit was produced to prove the marriage. According to this witness Prithivi Raj Aggarwal, father of Rekha Rani, had brought him from Amritsar for performance of the marriage. He performed the marriage ceremony of Prem Parkash with Rekha Rani according to Hindu rites. This witness did not state that Rekha Rani was also known as Sneh Lata The alleged marriage took place on June 28, 1987 It is significant to note that when Sneh Lata appeared as a witness she did not state that she was known as Rekha Rani. No doubt she stated that she gave birth to a female child from the loins of Prem Parkash in August 1988, however, birth certificate of the child has not been produced to indicate that father's name was recorded as Prem Parkash Gupta, The marriage of Prem Parkash with Sneh Lata is alleged to have been registered. Still the marriage certificate issued by the Registrar was not produced in evidence. Thus for want of cogent evidence in this case it is held that it has not been proved that Prem Parkash married Sneh Lata validity Assuming for the sake of argument that the marriage of Sneh Lata with Prem Parkash has been held to be perfomed according to Hindu rites, the same would not have any effect on the decision of the application filed under Order 9 Rule 13 of the Code of Civil Procedure. The fate of the aforesaid application is to rest on the decision of issues Nos. I and 2 which is the requirement of law. The moment the ex parte divorce decree is set aside, she marriage if any of Prem Parkash Gupta, with Sneh Lata or Rekha Rani would autometically be void Finding of the Additional District Judge on issue No. 2 A is also affirmed Finding no merit in this appeal, the same is dismissed with no order as to costs.