Delhi High Court
Madhuri Alias Sheela vs Kali Charan on 7 October, 1996
Equivalent citations: 1996VAD(DELHI)169, 65(1997)DLT793, I(1997)DMC349, 1997(40)DRJ27
JUDGMENT Usha Mehra, J.
(1) Shri Kali Charan respondent herein sought decree of dissolution of his marriage from the appellant Smt.Madhuri under Section 13(1)(ia) and (ib) of the Hindu Marriage Act. In the said petition he took up the ground that he filed a petition under Section 9 of the Hindu Marriage Act for conjugal rights, but the appellant herein (respondent before the Trial Court) refused to live with him. Hence that petition was withdrawn. Thereafter, he filed a petition for divorce on the ground of cruelty which was dismissed by the Court of Additional District Judge on the technical ground that petitioner concealed the factum of consummation of marriage. Since the wife had deserted him hence the present petition on the ground of desertion. In this petition, he alleged that his wife had been suffering from some blood disease which inspite of the treatment has not been cured. Since she was suffering from some disease hence it amounts to mental torture to him. Since they have been residing separately and not cohabited after September,1986 hence this petition.
(2) Notice of this petition was issued to the respondent (appellant herein). Proceedings of 9th July,1991 show that registered A/D notice was alleged to have been refused by the wife. She was accordingly proceeded ex parte. Ex-parte evidence was recorded on 17th February,1992 and on the same day ex-parte decree of divorce was passed.
(3) The appellant having come to know about the ex-parte decree filed an application under Order 9 Rule 13 Civil Procedure Code wherein she took the plea that she never received the summons from the Court nor refused the registered A/D cover. Her father came to know about passing of the ex-parte decree through one Vishnu Lal of the same colony where the brother of the respondent Dalip Chand was residing. This information her father acquired on 26th June,1992. Thereafter counsel was contacted and the application for setting aside the ex-parte decree was filed. This application was contested by the respondent herein. The Trial Court by the impugned order dismissed her application on the ground that though in the application an assertion was made that there was a dispute between her family and the Post Master of the village, but appearing as witness she did not say that there was a dispute with the process server of Aligarh Court or with the Post Master. Even the father did not prove by his testimony that there was a dispute with the Post Master or the process server. The appellant herein (respondent before the Trial court) admitted while appearing as her own witness that she was at her house on 31st May,1991 i.e. the date the process server visited her house. Therefore, relying on the report of the process server of Aligarh Court wherein he reported that the appellant was not available and that she had gone out, therefore, returned the summons and on the refusal report on the registered cover, the Trial Court declined to accept her version. He also took note of the fact that in the application name of Shri Vishnu Lal was mentioned whereas in evidence the name of the person who informed her father has been given as Pokh Raj. In view of this contradiction her application was dismissed.
(4) It is against this order that the present appeal has been preferred. The question involved is very narrow and short. There had been litigations going on between the parties ever since December,1986. Parties were married on 27th April,1986 and since September,1986 their relations have been strained. As per the respondent (petitioner before the Trial Court) he filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. The present appellant appeared and contested the same. The respondent herein withdrew that petition on 20th July,1988. Thereafter he filed a petition for divorce on the ground of cruelty. This was contested by the appellant herein and got it dismissed. Having lost twice he filed the present petition for divorce on the ground of cruelty and desertion.
(5) From the above narration of facts, it is clear that the appellant had been contesting the petitions filed by the respondent herein. She had been quite vigilant with regard to her rights. Therefore, it does not appeal to reason that when the notice of this petition was issued on 8th April,1991 returnable on 9th July,1991 she would either refuse to receive the registered cover or would avoid the service through the process server of Aligarh Court. Perusal of the report of the process server show that she was not available when he visited her house. This report by no means can be said that she avoided the summons brought by the process server of Aligarh Court. I have perused the registered A/D cover. In between the cross lines on the envelope, the word written is "Inkar". Thereafter some more writings are there on the envelope. There is also an endorsement in red ink on the registered cover Exhibit AW.1/1 which reads as "Vapsi - Nawar Kalan Ki Nahin Hai" (Return. She is not resident of Nawar Kalan). In view of these contradictory endorsements on the registered cover, suspicion arises about the genuiness of the endorsement on the registered envelope. It was incumbent on the respondent herein (petitioner before the Trial Court) to produce the Postman to prove that he tendered the registered envelope to the appellant herein and she actually refused to receive the same. In the absence of the same the Trial Court erroneously drew presumption that present appellant refused to accept the registered envelope. In view of the different sort of endorsement on the registered cover, no reliance can be placed nor any presumption could have been drawn that it was the appellant (respondent before the Trial court) who actually refused to receive the same. Trial Court fell in error in presuming that she refused to accept the registered envelope. As regards the fact that in the application it has been mentioned that her father acquired the knowledge through Shri Vishnu Lal and in the evidence he mentioned the name of Pokh Raj, nothing turn on the same. Once it is held that there was no proper service on the appellant herein either through the process server of Aligarh Court or through the registered post then whether knowledge of ex-parte decree was acquired through 'A' or 'B' was immaterial.
(6) In view of the discussion above, the impugned order cannot be sustained. The same is accordingly set aside. The application of the appellant under Order 9 Rule 13 Civil Procedure Code is allowed. Since the appellant was not served properly hence the ex-parte decree dated 17th February,1992 is also liable to be set aside. Order accordingly. Case is remanded back to the Trial Court to decide the petition of the respondent on merits after giving opportunity to the present appellant.
(7) Parties are directed to appear before the Trial Court on 16th October,1996.