Punjab-Haryana High Court
Ajita Sharma @ Sweety Alias Babi vs Rakesh Kumar Sharma on 13 February, 1998
Equivalent citations: (1998)119PLR170
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. This is an appeal filed by Smt. Ajita Sharma (hereinafter described as 'the appellant') directed against the order passed by the learned Additional District Judge, Jagadhri dated 19.1.1996. By virtue of the impugned order the learned trial court had dismissed the application filed by the appellant for setting aside the ex parte judgment and the decree dated 27.8.1991.
2. The relevant facts are that respondent-Rakesh Kumar Sharma had filed an application under the Hindu Marriage Act. Notice was issued to the appellant. The learned trial Court proceeded ex parte against the appellant and had passed the judgment and the decree dated 27.8.1991. The present appellant submitted an application for setting aside the ex parte judgment and the degree asserting that she had not been served and the respondent had concealed the material facts from the Court. Since she did not get any information about the pending petition, therefore, she could not appear in Court. The respondent contested the said application holding that it is barred by time and further that appellant had duly been served by registered post. She had the knowledge of the case pending against her.
3. The learned trial Court had framed the following issues :-
(1) Whether there is sufficient cause for setting aside the exparte decree? OPA (2) Whether the application is within time? OPA (3) Relief.
With respect to issue No.1 the learned trial court held that appellant had duly been served. She had the knowledge of the petition that had been filed against her. She had even filed an application for transfer of the case and in these circumstances there were no just and sufficient grounds for setting aside of the ex parte judgment and the decree. It was further held that the petition was barred by time because it had been filed after the period of 30 days from the knowledge about the ex parte decree. Aggrieved by the same the present appeal has been filed.
4. Learned counsel for the appellant highlighted the fact that the appellant had not been served and these were just and sufficient grounds for setting aside the ex parte judgment and the decree. In the alternative he insisted that even if the appellant had been served, fresh notice should have been issued so that reconciliation proceedings had taken place. Taking up the first contention as to if the appellant had been served or not, it transpired during the course of arguments that appellant even had filed an application in this Court for transfer of the case. In other words, the appellant was duly aware about the pending application Under Section 9 of the Hindu Marriage Act. Indeed in these circumstances, it is unfair for the appellant to contend that she had not been served with the notice. The purpose of service of the notice is that the opposite party should know the case one has to meet and contest. If a person knows about the pending case and still ignores the said litigation, it would be wholly unfair for that person to urge that he had not been formally served.
5. Otherwise also the learned trial Court rightly recorded that the appellant had been served by registered post. The appellant had not denied her signatures on the postal acknowledgement Ex.R1. The settled principle of law is that a correctly addressed letter would deemed to have been delivered to the addressee. This presumption is still more fortified when in normal course postal acknowledgement receipt is received back. When the appellant had not denied her signatures on the postal acknowledgement and there are no other extenuating circumstances, the presumption is not at all rebutted. It must, therefore, be held that the appellant had been served and what she is alleging that she only came to know of the ex parte subsequently is clearly an after thought.
6. Pertaining to the second contention that no reconciliation proceedings were taken place and fresh notice should have been issued, the same is simply to be stated as rejected. The record reveals that when this appeal came up for hearing before another learned Single Bench of this Court, the parties had been called and attempt had been made in this regard. It is recorded on 11.3.1997 that there is no chance of reconciliation. In face of the aforesaid, the thrust of the argument looses all significance because no useful purpose in any case is to be served, in these circumstances, the trial court rightly held that the application filed by the appellant for setting aside of the ex parte judgment and the decree is without merit.
7. For these reasons, the appeal must fail and is dismissed.