SHANTI DEVI Vs. MANGAT RAI

JUDGEMENT

(1.) AN ex -parte decree for judicial separation under section 10 of the Hindu Marriage Act had been passed against the appellant. She put in a petition for getting the ex -parte proceedings set aside. The learned trial Judge dismissed that petition. He observed that the appellant refused to accept delivery of the registered and latter on a proclamation for her service was published in the Daily Hind Samachar, Jullundur. Since she failed to appear in spite of these steps having been taken, it was not proper to set aside the ex -parte proceedings taken against her.

(2.) SOMETHING can of course be said for the view expressed by the learned trial Judge but I feel that in some cases postmen can be persuaded to make false reports and service by inserting one citation in a newspaper at best remains notional service. The Hind Samachar, Jullundur, is published in the Urdu Language. Most of the young Hindu ladies do not know this language. The appellant swore an affidavit that she came to know of the ex -parte decree much latter. In the peculiar circumstances of this case, the learned trial Court should have accepted this affidavit and set aside the ex -parte decree passed in a case arising out of the Hindu Marriage Act. The said Act does not envisage the decision of the cases arising under it merely on the basis of the material and evidence produced by the parties. It enjoins upon a Court to see that the parties are not acting in a collusive manner and: if there is a genuine conflict between them, to make special efforts to bring about a settlement between them. If one of the parties to the proceedings approaches the Court with a prayer that the ex -parte decree passed against it should be set aside, the Court should more readily accept such a prayer and perform its statutory duty of giving a decision on merits only if it fails to effect a compromise between the parties. While doing so it should not strictly adhere to the rigid provisions of the Code of Civil Procedure regarding the restoration of suits decided ex -parte. At the same time. I would like to make it clear that I am not laying down an absolute rule on the subject. Due weight has to be given to the conduct of the parties and if a party attempts to harass its opponent by habitually absenting from Court, no undue latitude should be shown to it. In the instant case, the appellant did not appear in Court on any occasion and no other circumstances has been brought to my notice which might enable me to infer that by her conduct she is disentitled to get the discretionary relief. In the circumstances, I allow this appeal and set aside the ex -parte decree passed against the appellant. The parties through their counsel are directed to appear before the learned trial Court on July 18, 1977. That Court shall now proceed with the case in accordance with law. No costs.