JAGDISH RAI Vs. PARVEEN BALA

JUDGEMENT

(1.) WHETHER an application under Rule 13 of Order 9 of the Code of Civil Procedure for setting aside an ex parte order passed by the Matrimonial Court accepting a petition under Section 9 of the Hindu Marriage Act (for short 'the Act') is competent, is the solitary question canvassed in this revision petition. A broad brush factual backdrop shall illumine the contours of forensic controversy.

(2.) JAGDISH Rai, the Petitioner -husband, filed a petition under Section 9 of the Act for restitution of conjugal rights against his wife Smt. Parveen Bala. Notices were sent to her by the Court to appear on 2nd September, 1983. On that day Smt. Parveen Bala did not appear and ex parte proceedings were taken against her. The learned trial Judge recorded the evidence of the Petitioner and accepted the petition under Section 9, - -vide order dated 5th November, 1983. On coming to know about the ex parte order, Smt. Parveen Bala filed an application under Rule 13 of Order 9 of the Code of Civil Procedure for setting aside the ex parte order of 24th November 1983. In that application she inter alia pleaded that her husband had obtained an ex parte order dated 5th November, 1983 by obtaining a false report from the postman that she had refused to accept the notices sent to her by the Matrimonial Court. In fact she had not refused to take delivery of any registered or other letter from any postman. The ex parte decree had been obtained by playing a fraud on the Court and she had come to know about the same on 16th November, 1983 and filed the application on 24th November, 1983.

(3.) SMT . Parveen Bala stepped into the witness -box and supported the averments made in her application. She stated in categoric terms that she had not received any summons or notices from the Court. She had not refused to accept any letter from any postman. She had no knowledge about the proceedings. She came to know about the ex parte decree on 16th November, 1983 and filed the application for setting aside the same on 24th November, 1983. In reply, Jagdish Rai Petitioner made his own statement. He stated that Smt. Parveen Bala had been served in the case by registered post because she had refused to accept the registered letter tendered before her by the postman.