Uttarakhand High Court
Smt. Pinky vs Anand Kumar on 15 June, 2017
Equivalent citations: AIR 2018 (NOC) 594 (UTR.)
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Appeal from Order No. 694 of 2016
Smt. Pinky ..............Appellant
Versus
Anand Kumar .......... Respondent
Present: Mr. Abhishek Verma, Advocate for the appellant.
Mr. Lalit Sharma, Advocate for the respondent.
Coram:- Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Reserved on : 07.06.2017 Delivered on : 15.06.2017 Per - Hon'ble Sharad Kumar Sharma, J.
This is a wife's appeal whereby, she has questioned the veracity of the order dated 08.11.2016, as a consequence of which the Principal Judge, Family Court, while dealing with Miscellaneous Case No.20 of 2015, "Smt. Pinky vs. Anand Kumar," wherein she has sought a relief that the judgment dated 05.05.2015 decreeing the suit may be recalled and the application filed by her under Order 9 Rule 13, which was supported by Section 5 application may be allowed and the principal proceedings after setting aside the judgment dated 05.05.2015 may be heard afresh.
2. Brief facts of the case are that respondent herein is the husband, who had instituted a suit being O.S. No.371 of 2014, wherein he had sought a prayer for dissolution of the marriage which was solemnized between the appellant and respondent as per Hindu rites and culture on 06.02.2006.
23. It was the case of the applicant before the Court below that as a consequence of the wedlock, two daughters Km. Kanikaand and Km. Palak were born, who are under the guardianship and welfare of their mother i.e. the appellant (Pinky). She contended in the proceedings before the Court below that some acrimony arose between the appellant and the respondent, and the respondent being outraged, he assaulted the applicant and demanded dowry and threatened her with grevious consequences, when illegal demands were not satisfied, to seek an appropriate relief and to overcome the cruel behaviour of the respondent, appellant had to have a recourse to the domestic violence proceedings which is pending before ACJM- 9th Meerut, the proceedings were drawn at Meerut on account of the fact that due to the cruelty being exercised by the respondent, she was forced to leave the husband's house and started residing with her parents at Meerut.
4. The notice to the proceedings under the Domestic Violence Act was served upon the respondent, which he is independently contesting the same after putting his appearance and filing his written statement, the pendency of same will have too bearing on the instant appeal from order.
5. In the proceedings before the Domestic Violence Court, i.e. ACJM-9th the respondent appeared and on 30.09.2015, for the first time he has brought on record the judgment dated 05.05.2015, said to have been passed by the Principal Judge, Family Court, Dehradun in O.S. No.371 of 2014, "Anand Kumar vs. Smt. Pinky"
for dissolution of marriage, whereby the said judgment marriage was dissolved allegedly ex-parte.3
6. It was on 30.05.2015 as contended by the appellant that she could gather the knowledge of the ex-parte judgment dated 05.05.2015, dissolving the marriage between them.
7. The case of the appellant was that on getting the knowledge on 30.09.2015, she immediately went into the records of the O.S. No.371 of 2014 and then it was brought to her knowledge that the Family Court, Dehradun, treating the report of "refusal to accept notice", by the appellant had proceeded to render the ex-parte judgment on 05.05.2015. It was contended by the appellant that no such notice of any nature, whatsoever, in Suit No.371 of 2014 was ever received by her nor she has ever refused to receive the same.
8. On being acquainted of the entire facts on her visit to Dehradun on 01.10.2015 and after contacting the counsel apprising the entire facts, she applied for the certified copy of the judgment dated 05.05.2015, which after its receipt on 03.10.2015, she was informed by the Counsel about the receipt of copy of the judgment and was called upon by her counsel to contact him on 09.10.2015, to enable him to file an application under Order 9 Rule 13 to set-aside the ex-parte judgment dated 05.05.2015. In support of her Section 5 application she has stated that although she receive the information from her counsel for meeting him on 09.10.2015, but due to her ill health ,as she has undergone a medical treatment, she was unable to commute to meet her counsel, and after recovery she met her counsel on 24.10.2015, thus the application under Order 9 Rule 13 was prepared which was filed before the Court without any inordinate delay and, hence on the aforesaid backdrop, she sought for a relief that the application under Section 5 of the Limitation Act, filed in support of the delay condonation application may be considered leniently and the delay be condoned and the application under Order 4 9 Rule 13 be decided by setting aside the ex-parte judgment dated 05.05.2015, lest failing which she contended that she would suffer irreparably.
9. The respondent in his objection paper no.32C within affidavit filed in support thereof paper no.33C stated while opposing the application under Section 5 that he has instituted the proceedings for dissolution of marriage on 15.05.2014 and he contended that the appellant hereinafter on getting the knowledge of the institution of the suit, as an afterthought, has initiated the proceedings under Domestic Violence Act. He stated that since in the domestic violence proceedings, he has filed his written statement/objection on 27.06.2014, to which the appellant has filed her replica. It would be deemed that the appellant had got the knowledge of the divorce suit on 27.06.2014. He stated that despite of the aforesaid knowledge having being derived although from the proceedings under the Domestic Violence Act, it was incumbent that as soon as the appellant procured the knowledge of the pendency of the divorce proceedings, he ought to have appeared in the proceedings of the Suit No.371 of 2014 and, hence he supported the ex-parte decree dated 05.05.2015 and requested for rejection of the application under Section 5 filed in support of the application under Order 9 Rule 13, in view of proviso to Order 9 Rule 13 as made applicable by Allahabad High Court amendment, as made applicable by under Section 87 of Reorganization Act.
10. Another reason for challenge to the application under Section 5 as well as application under Order 9 Rule 13 was that after the rendering of the ex-parte judgment dated 05.05.2015, the respondent contended that he has solemnized the second marriage, in accordance with Section 15 of Hindu Marriage Act, with one Smt. 5 Sonam Sharma on 27.04.2016, in accordance with the Hindu rituals and thus the application is not maintainable as much water has flown after the dissolution of marriage by the judgment dated 05.05.2015 with the appellant.
11. The appellant-applicant of application under Order 9 Rule 13 on receipt of the objection paper no.32C filed her replication, to the objection filed by the respondent.
12. The learned Court below while considering the veracity of the application under Section 5 filed in support of Order 9 Rule 13, took a view that the appellant had filed her replica in the domestic violence proceedings, the certified copy of which has been filed on record as paper no.51C-1/1. The Court below took the view that on perusal of the replica as filed by the appellant before the Court below, it is clear that the applicant had the knowledge of the pendency of under Section 13 proceedings and fixing of a date as 18.07.2014.
13. The Court below observed that the respondent has also filed the copy of the order sheet paper no.52C-1/1, which shows that the order dated 27.06.2014, bears the signature of the attendance of the appellant on the date when objection was filed in Domestic Violence Proceedings. Meaning thereby, it proves that on 27.06.2014 the appellant was present in the Meerut Court, and thus she had the knowledge of the proceedings under Section 13 pending before the Family Court, Dehradun at the relevant time.
14. The learned Court below while taking into consideration the records of the case has recorded a finding that the notice which was sent in the proceedings under Section 13, it goes to show, that 6 the registered post as sent to the Postman he has made an endorsement that the appellant has "refused" to accept the notice on 16.12.2014. The refusal to accept notice through process server would be deemed to be sufficient knowledge of the case. The Court below observed that the order sheet further demonstrates that in the suit under Section 13 i.e. Suit No.371 of 2014, earlier also on various occasions the summons were issued to the appellant and even after the knowledge of the pendency she did not appear and avoided service of notice.
15. The Court taking the above fact borne out from records and the fact of the subsequent marriage solemnized on 27.04.2016, after one year of dissolution of marriage by decreed dated 05.05.2015 and its impact, if the application under Order 9 Rule 13 is allowed, it will have a griveous bearing on the second marriage, which was otherwise a valid marriage, as it would adversely affect the status of the second wife, who was otherwise legally married. Court taking the view that the appellant herself was not vigilant in protecting her rights by putting an appearance and contesting the proceedings of Suit No.371 of 2014 and avoided service of notice, and when despite of knowledge of the proceedings she has not put in appearance, no latitude could be granted to her, despite the fact that a lenient view is to be taken while considering the application under Section 5, filed in support of the application for setting aside the ex- parte decree under Order 9 Rule 13. Hence, the application under Order 9 Rule 13 was rejected. Consequently, this Appeal from Order by the appellant (wife) challenging the order dated 08.11.2016 whereby, delay condonation application and consequently, the application under Order 9 Rule 13 was rejected and thereby affirmed the decree dated 05.05.2015.
716. Heard Mr. Abhishek Verma, Advocate for the appellant and Mr. Lalit Sharma, Advocate for the respondent.
17. This Court after prolonged hearing finds that a litigant in proceedings has to be vigilant to safeguard his or her own interest. According to the records placed by the parties before this Court and on scrutiny of records which was considered by the Family Court, Dehradun, it has revealed that apart from the fact that the notice served in the proceedings in Suit No.371 of 2014, there was a refusal of acceptance of notice by the appellant, which was sufficient knowledge under law while on the other hand, it is also being established beyond doubt that the appellant had the knowledge of the pending proceedings under Section 13 because in the affidavit filed on 27.06.2014 in domestic violence proceedings at Merrut, the appellant has filed her replication on 16.07.2014. Since, the objection of the respondent (husband) dated 27.06.2014 had reference of the proceedings under Section 13 of the Act, to which the replication was submitted by the appellant on 16.07.2014, it would be deemed that as soon as the appellant has submitted the replication on 16.07.2014, the knowledge of the pendency of the proceedings under Section 13 is automatically attributed to her. Hence, in view of the amendment which has been brought about by Hon'ble Allahabad High Court by substituting the proviso under Order 9 Rule 13 as applicable in the State of Uttar Pradesh and subsequently, after the creation of State of Uttarakhand in Uttarakhand also the proviso which would be applicable is that the word "notice" as it was in the principal proviso has been substituted by the word "knew" meaning, thereby a knowledge to a party to the proceedings of any pending proceedings is enough to put in appearance. Hence, in view of the fact that in other collateral proceedings, the appellant has already acquired the knowledge and yet she has chosen not to contest the 8 proceedings by putting in appearance, no anomaly could be attached to the impugned order under question and that too when in the light of the fact that, she has refused to accept notice on 16.12.2014, as reported by the process server.
18. On an overall scrutiny, if the appellant acquired the knowledge by the affidavit dated 27.06.2014 to which she has replied on 16.07.2014 in domestic violence proceedings and the second marriage was solemnized much thereafter on 27.04.2016, if the application under Order 9 Rule 13 is allowed due to non-vigilant attitude of the appellant it would ruin the second marriage of 27.4.2016, which was otherwise legally sustainable in the eyes of law.
19. As such owing to the above fact that the inaction of the appellant is not protected by the provision of Order 9 Rule 13 with Section 5, no latitude could be extended to her, as such the appeal fails and is dismissed.
20. No order as to costs.
(Sharad Kumar Sharma, J.) (Rajiv Sharma, J.)
15.06.2017
A.kaur
9