Punjab-Haryana High Court
Parmilesh vs Vinod Kumar on 28 November, 1996
Equivalent citations: I(1997)DMC410
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. Appellant-wife has filed this appeal against the lower Court's order dated 6.11.1995 whereby her petition filed under Order 9 Rule 13, Civil Procedure Code was declined.
2. Brief resume of the facts of the case is that the respondent-husband Vinod Kumar filed the petition under Section 9 of the Hindu Marriage Act against the appellant-wife on 7.9.1993. It was ordered that the respondent-wife in that petition be noticed. Notice in an ordinary process could not be served. On 3.1.1994 the District Judge, Rohtak passed the order that fresh notice be sent for the respondent for 3.2.1994 on submission of fresh process fee and correct address. Thereafter, the case was adjourned to 3.2.1994. On 3.2.1994 it was ordered that as the respondent has refused to accept the service by registered post and has not appeared, she was proceeded ex-parte. On 7.2.1994 ex-parte evidence of the husband-Vinod Kumar was recorded and on the same date the petition filed under Section 9 of the Hindu Marriages Act was decided in his favour. The appellant-wife filed the petition under Order 9 Rule 13, Civil Procedure Code 3.3.1994 challenging that in the Hindu Marriage Act Case No. 65 of 1993 she was never served; she never refused to accept any notice and only on 16.2.1994 she came to know that her husband has obtained an ex-parte decree against her in the aforementioned case on 7.2.1994. Hence, she claimed that the ex-parte decree be set aside.
3. The husband-respondent filed reply and denied all the averments made in the petition. He specifically pleaded that he filed reply to the petition filed under Section 125, Code of Criminal Procedure, on 4.11.1993 wherein he disclosed that he has filed a petition under Section 9 of the Hindu Marriage Act against her. Thus, according to him, she came to know of the pendency of that case against her on 4.11.1993. Despite that she declined to appear in the Court to defend herself. He also reiterated that the summons were sent by registered post at her correct address at Bhiwani and she refused to accept the notice. Hence, the ex-parte proceedings were rightly initiated against her. The petition filed by her is, thus, barred by limitation.
4. In support of their allegations, parties adduced their evidence. The learned District Judge scanned the evidence and arrived at the conclusion that the notice sent to the appellant by registered post was refused by her. She was, thus, properly served, but despite service she declined to appear in the said case, which thereafter proceeded ex-parte. Thus, she has failed to prove sufficient ground for setting aside the ex-parte judgment.
5. Appellant's learned Counsel during arguments referred to Zimni order dated 3.1.1994 passed in the said Hindu Marriage Act Case No. 65 of 1993, wherein it is specifically mentioned that "Notice received back unserved. Fresh notice be issued again to the respondent for 3.2.1994 on P.F. and correct address." He submits that the respondent-husband neither paid process fee nor supplied correct address of the respondent. Rather on his own without obtaining any order from the Court got summons sent by registered post at her both the addresses of Bhiwani and Narnaul. These registered letters were issued on 25.1.1994. The registered letter sent to her at her Narnaul address was redirected to her Bhiwani address and on 28.1.1994 there is a report that she refused to accept the service. The other registered letter was sent at her Bhiwani address, which also bears an endorsement of refusal dated 28.1.1994. She stated on oath that no such registered letter was tendered to her and she never refused to accept them.
6. Referring to Order 5 Rule 19-A, Civil Procedure Code, the learned Counsel valiantly argued that the notices could be sent under registered cover only, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive). No notice was sent under these rules for the respondent, the notice was sent only by registered post. The very procedure adopted in that case was illegal. He pointed out that the Presiding Judge never passed an order that the notice be sent by registered post. The respondent got the registered covers posted through the Clerk of the Court without obtaining any order from the Presiding Officer. Thus, according to him, this mode of service is illegal. This mode of service being against the provisions of Order 5 Rule 19-A, Civil Procedure Code, is illegal and should not have been relied on by the lower Court. He also submitted that the oath of the said postman should not have been relied on by the learned District Judge as it was oath against oath. There was no attestation on endorsement of the refusal made by the postman. The postman has not deposed that there was no witness available to attest the report of refusal. On that count also his report should not have been believed by the learned District Judge.
7. The appellant's learned Counsel admitted that the appellant filed the petition under Section 125, Code of Criminal Procedure against the respondent-husband in which respondent filed reply on 4.11.1993. Copy of this reply was given to the appellant's Counsel appearing in that case; that case was adjourned to 16.2.1994. On this date, she came to know for the pendency of the Hindu Marriage Act case against her. On this date of the first time, the husband made a disclosure that he has obtained an ex-parte decree against her in the Hindu Marriage Act case. Before this date, she could not read the reply submitted by her husband on 4.11.1993. Hence, she came to know of this ex-parte decree only on 16.2.1994; therefore, she filed the petition on 3.3.1994 for setting aside the ex-parte decree. Thus, according to him, the lower Court has wrongly dismissed his petition. To support his contention, he has relied on Sohan Singh v. Puran Singh, (1986-2)90 P.L.R. 398.
8. The respondent's learned Counsel supported the impugned order and vehemently argued that the notice was sent to her by registered post and she refused to accept the notice. The respondent-husband examined the postman, who deposed on oath that he tendered the notice to the appellant, who refused to accept it. He also stated that he knows tile appellant's father's house as he has delivered many letters before. He also identifies the appellant. He further submitted that in the maintenance case, the respondent-husband filed reply on 4.11.1993 wherein he specifically mentioned that he has filed the petition under Section 9 of the Hindu Marriages Act against her. Thus, on 4.11.1993 she came to know of the pendency of such a case against her. Despite that knowledge she never appeared in that case. Thus, on 3.2.1994 when she failed to appear before the Matrimonial Court, the Court had no other option but to proceed ex-parte against her. Hence, the ex-parte decree was rightly passed against her on 7.2.1994.Thus, the District Judge has rightly declined to allow her petition filed under Order 9 Rule 13, Civil Procedure Code.
9. From the Trial Court's record, it is evident that in matrimonial case on 3.1.1994 it was ordered that fresh process free with her correct address be submitted by husband. There was no order that the notice be sent by registered post. From the record it is evident that on 24.1.1994 the husband paid process fee with registered cover; no order was obtained from the Matrimonial Court and notices were sent by registered post to the respondent; no ordinary process was issued. Order 5 Rule 19-A provides that "that Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due..." Thus, it is obvious that the notices sent by registered post were sent against the aforementioned provision without obtaining the order from me Matrimonial Court. Provisions of this Rule 19-A are mandatory. ^Legislature in its wisdom has caste a duty on the Court to issue summons by ordinary process also when he orders service through registered post. Non-compliance of this rule is not a mere irregularity. As I have mentioned above in this case notice was sent by registered post without obtaining order from the Court to that effect. That gives an inkling of the intention of the husband. Thus, the report of the postman should not have been relied on by the learned District Judge. Further there is oath against oath. The appellant has stated on oath that no notice was ever tendered to her. She never refused to accept any notice. It is apparent that the husband managed to get the notice sent by registered post through the Clerk of the Court. It is not impossible for such a husband to get the endorsement of refusal made by a postman on such a registered letter. No doubt, postman has been examined by him, but under the aforementioned circumstances, the District Judge should not have relied on his oath. Thus, in my considered view, it is apparent on record that the appellant was not served in accordance with law.
10. So far as knowledge through reply submitted by the respondent-husband is concerned, no doubt, he submitted his reply in the maintenance case on 4.11.1993, but wife has specifically pleaded in her petition that in his reply the details of the date of hearing etc. were not given so, she could not appear in that case and only on 16.2.1994 she came to know that her husband has obtained an ex-parte decree against her. Husband has not produced copy of reply submitted by him in the maintenance case to show that all the particulars of the case alongwith the date of hearing were mentioned by him in the said reply. It is common knowledge that when reply is filed by the opposite party and its copy is given to the party's Counsel, normally reply is not read on that very date; it is considered only on the adjourned date. The maintenance case was adjourned from 4.11.1993 to 16.2.1994. The appellant has specifically stated on oath that only on 16.2.1994 she came to know through her husband that 'he' has obtained an ex-parte decree against her on 7.2.1994. Thus, within limitation, she filed this petition under Order 9 Rule 13, Civil Procedure Code. The learned District Judge should have considered this aspect of the case also.
11. Thus, in my considered view, her petition was filed within the period of limitation and she has also thereby proved sufficient ground for setting aside the ex-parte decree. It is also an important factor to be taken note of in such cases, especially in matrimonial cases, the party should be given a fair chance to contest the case and if one spouse has obtained an ex-parte decree and if other spouse is willing to join the issue, he/she should be given a fair opportunity to contest the case.
12. Considering all the above facts, appeal is hereby allowed; impugned order is set aside; the judgment and decree passed in Matrimonial Case No. 65 of 1993 is also set aside.
13. Parties are directed to appear before the Matrimonial Court on 17.2.1996.