Uttarakhand High Court
Kamal Kumar Bansal vs Smt Babita Bansal Alias Chhavi Bansal on 12 October, 2017
Bench: Rajiv Sharma, Sharad Kumar Sharma
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Appeal from Order No. 93 of 2017
Kamal Kumar Bansal ......Appellant
Versus
Smt. Babita Bansal @ Chhavi Bansal ...... Respondent.
Present:
Mr. T.A. Khan, Senior Advocate assisted by Mr. Aditya Kumar Arya, Advocate for
the appellant.
Mr. Ashutosh Posti, Advocate for the respondent.
Reserved Judgment
JUDGMENT
Coram: Hon'ble Rajiv Sharma, J.
Hon'ble Sharad Kumar Sharma, J.
Dated: 12th October, 2017 Per Hon'ble Sharad Kumar Sharma, J.
This is an appeal whereby the plaintiff appellant challenges the impugned judgment dated 8th November, 2016, passed by the Family Court, Udham Singh Nagar, in Misc. Case No. 14 of 2015, filed by the respondent wife invoking Order 9 Rule 13 to set aside the ex parte judgment and decree dated 12th September, 2014, by virtue of which, the marriage between the parties to the matrimonial proceedings has been dissolved.
The facts of the case leading to filing of appeal are that the appellant had instituted Suit No. 144 of 2014, invoking 2 Section 13 (1) (i-a) and (i-b) for dissolution of marriage said to have been soleminised between them on 2nd June, 1996, on the ground of cruelty and desertion. The said Suit, after having been instituted on 28th March, 2014, proceeded and it was decided by an ex parte judgment and decree dated 12th September, 2014, consequently, the marriage between the appellant and the respondent was dissolved.
The learned Family Court, while proceeding to decide the said suit ex parte, had recorded a finding to the effect that the summons which were issued by the Court were duly received and despite of it, the respondent had not put in appearance and, thus, the suit was directed to be proceeded ex parte, by the order dated 30th September, 2014. The respondent did not had the knowledge of the proceedings as well as the ex parte judgment dated 12th September, 2014.
The respondent's contention was that she could get knowledge of the judgment only, when she received the notice dated 24th January, 2015, said to have been issued by the appellant to her through his Advocate Mr. Naim Ahmad Siddiqui, informing her about the fact that an ex parte judgment and decree has been passed against her whereby the marriage between them has been dissolved. The said notice was served upon the respondent on 4th February, 2015.
3
After getting the knowledge of this ex parte decree, the respondent's case was that she engaged an Advocate to inspect the file and after inspection of the file which was conducted by her and her Advocate, and on the inspection of the record, it has revealed that an ex parte decree has been obtained against her. She applied for the certified copy of the order and, thereafter, she filed an application on 9th March, 2015, for setting aside the ex parte decree.
In the application, thus, filed the wife contended that after the marriage she was blessed with three children, a daughter Aditi, who is 17 years, daughter Vridhi, who was 13 years and a son Tushar, who was 12 years of age and they were residing together in Vishwapuri Colony, Bihari Transport Tanakur, District Champawat. She submitted that the husband appellant is working in the Civil Court, District Champawat and was functioning as a Reader with Judicial Magistrate. She submitted that at the time when she got the knowledge of the ex parte decree through the the notice served upon her on 4th February, 2015, at that point of time, she was residing alongwith the husband in his residence and the fact of having obtained an ex parte decree was never disclosed by the husband. It was only when she was thrown out of the house on 9th January, 2015, at about 5:00 p.m., after misbehaving with her, and when she 4 surprisingly received the notice dated 24th January, 2015, she could get the knowledge and thus she contended that no notice whatsoever was ever served upon her and even on the perusal of the record, it has come to her knowledge that the endorsement of receipt which has been made in the registered post which was sent to her was fraudulent because it does not bear her signature, as they were manipulated signature.
She specifically pleaded that no process server had at any point of time had approached her for serving the summons of the suit. She submitted that though she got the knowledge of the decree by the service of the notice on 4th February, 2015, but, since she being the housewife and having no source of earning, had engaged Mr. B.C. Joshi, Advocate to do the needful for filing the recall application but the counsel engaged has expressed his inability on account of non payment of fees, however, he instructed his colleague Mr. Yajuvendra Singh to take up the matter and to file an appropriate application under Order 9 Rule 13. Before any action could be taken by Mr. Yajuvendra Singh, Advocate of filing Order 9 Rule 13, there fell an intervening holy holidays, therefore, the application under Order 9 Rule 13 could be filed only on 9th March, 2015.
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In para 8 and 9 of the application, a specific plea was taken by the respondent as to mode which was adopted by the appellant for effecting services of the notice to the proceedings of the suit was a procured service which was not actually effected upon by the appellant on the respondent, thus, she had no knowledge of the case.
She submitted that there is a bona fide doubt about the action taken by the husband, the reason being when she was already residing with the husband, then atleast it was expected that he ought to have disclosed the fact of the suit having been filed for dissolution of marriage or the fact of having obtained an ex parte decree which was not done.
Thus, she submitted that her application under Order 9 Rule 13 ought to be allowed and the suit itself deserves to be decided on its own merit. The said application was objected by the appellant contending thereof that the notice was sufficiently served and the endorsement which is there in the registered post is an endorsement made by the wife, the fact which is being denied by her in her application. He submitted the fact that which she has contended that she would get knowledge only for the first time on 4th February, 2015, is absolutely false.
He submitted that the application ought to have been filed within 30 days from the date of the judgment, i.e. till 6 11th October, 2014. This contention is not tenable because the period of limitation for filing an application under Order 9 Rule 13 would obviously runs from the date of the knowledge of order and not from the date of the order itself.
Based on the aforesaid contentions, the learned Family Court, vide its judgment dated 8th November, 2016, had allowed the Order 9 Rule 13 and had set aside the ex parte decree dated 12th September, 2014, and the suit has been revived to be decided afresh on its merit.
On perusal of the records, which has been placed by the parties before this Court, the Court below rightly recorded a finding that there was no effective service which was made on the respondent. It further recorded a finding that though they were residing together between 12 th September, 2014 to 9th January, 2015, it was incumbent or atleast it was expected that he ought to have disclosed the fact of the ex parte decree which was deliberately avoided by the appellant.
Since there is a doubt with regard to the mode of service on the appellant and since the ex parte judgment intends to severe the matrimonial relationship, it was expected that it ought to have been decided on its own merit.
Thus, we do not find any error or mistake in the judgment and thus it calls for no interference. 7
The appeal is dismissed. The proceedings of Suit No. 144 of 2014, Kamal Kumar Bansal Vs. Smt. Babita Bansal is revived to be decided on merits. The Family Court is requested to decide the proceedings expeditiously taking into consideration the provisions contained under Section 21 (B) of the Hindu Marriage Act.
Thus, the appeal from order is dismissed. No order as to costs.
\ (Sharad Kumar Sharma, J.) (Rajiv Sharma, J.) 13.10.2017 13.10.2017 Shiv