RAJINDERA PRASAD YADAV Vs. PREM LATA

JUDGEMENT

(1.) This revision has been directed against the order dated 7.9.1994, passed by learned District Judge, Alwar, whereby the said Court allowed the application submitted under Order 9, Rule 13 read with Section 151, CPC filed by the respondent and set-aside the ex-parte decree of divorce dated 25.9.1986, passed in Civil Misc. Case No. 36/199/85.

(2.) The brief relevant facts of the case are that the petitioner filed an application for divorce against the respondent. Notice of the said application was sent to the respondent by registered post. On the basis of an endorsement of refusal, the learned District Judge, Alwar, found that the service on the respondent was sufficient and proceeded ex-parte and an exparte decree was passed against the respondent on 25.9.1986, On 30.3.1988, the respondent filed an application under Order 9, Rule 13, CPC for setting aside the ex-parte decree with the allegations that she never refused to accept the notice. She came to know only on 1.3.1988, about the ex-parte decree. It was prayed that the ex-parte decree be set aside. The petitioner filed reply to the said application mentioning that the service on the respondent was proper. She refused to accept the notice containing summons when tendered by the postman. Objection regarding limitation was also raised. It has been further mentioned in the application that the petitioner solemnised second marriage on 23.11.1987 with Smt. Rajni Yadav and there are two children from the second wedlock. It has been prayed that the application be dismissed. The learned District Judge, Alwar after recording the evidence of the parties, uide his order dated 7.9.1994, came to the conclusion that the respondent was not served with the notice of the divorce application. The respondent was at Ajmer at the relevant time when the notice was sent by registered post at Jaipur address. Under such circumstances the learned Judge set-aside the ex-parte dated 25.9.1986. This order has been challenged in this revision.

(3.) Mr. Anil Jain, Counsel for the petitioner submits that the finding recorded by the learned Judge that the respondent was not served with a notice of divorce application is contrary to the record. His second submission is that the petitioner solemnised second marriage on 23.11.1987, with Smt. Rajni Yadav, and on account of this fact the ex-parte decree cannot be set-aside. In support of his arguments, he placed reliance on Smt. Shim/a Devi & Anr. v. Kiran Kumar1.