Punjab-Haryana High Court
Kulwant Kaur vs Balbir Singh on 11 July, 1996
Equivalent citations: (1996)114PLR368
Author: Sarojnei Saksena
Bench: Sarojnei Saksena
JUDGMENT Sarojnei Saksena, J.
1. Appellant has filed this appeal against the trial Court's order dated 15.6.1995, whereby her petition filed under Order 9 Rule 13, Civil Procedure Code, was dismissed.
2. Brief facts of the case are that respondent Balbir Singh filed the petition under Section 13 of the Hindu Marriage Act, 1955 against the appellant on 19.6.1989 and claimed divorce on various grounds. The case proceeded ex parte and ex parte divorce was granted in favour of respondent-husband on 28.11.1989. Thereafter, on 19.12.1989 appellant filed petition under Order 9 Rule 13, Civil Procedure Code, alleging that on 8.12.1989, she along with her father Jeet Singh and brother Baljit Singh came to know from the reliable sources that the respondent-husband has obtained ex-parte decree against her. She averred that she was never served and service through publication was also not the proper service as she is illiterate lady and that newspaper is not circulated in her village. She never got information regarding pendency of the divorce petition. Thus, she prayed that petition be allowed and ex parte decree be set aside.
3. Respondent-Balbir Singh contested the application and alleged that after waiting for a period of 1-1/4 years, he has remarried on 2.2.1991. He also pleaded that till 30.5.1991, the appellant-wife never made any effort to get him served in the said Miscellaneous case. He also pleaded that in the divorce case she was served through registered letter as well as by publication in the newspaper.
4. The trial Court framed issues, recorded parties evidence and came to the conclusion that the appellant herself admitted on oath that on 28.11.1989 she came to know about the pendency of the divorce petition filed by her husband from her father Jit Singh, she did not receive any summon or registered cover through Court. She further admitted the after 4/5 days of filing of divorce petition, her father came to know about the pendency of this divorce petition from certain persons of village Mullanpur Kalan. Thereafter, she enquired about the pendency of the divorce petition from the Court. She engaged a lawyer Shri Khem Chand Dev Advocate, Patiala. He used to tell her about the proceedings taken in the divorce petition, which was filed on 19.6.1989 and was decreed on 28.11.1989, but she filed petition under Order 9 Rule 13, Civil Procedure Code on 19.12.1989. Thereafter, the trial Court held that the petition is time barred as it is filed beyond 30 days from the date of knowledge.
5. Appellant's learned counsel assiduously argued that this finding of the lower Court is absolutely wrong because she can file such a petition within 30 days from the date of the ex parte decree, which was passed on 28.11.1989. She filed the petition on 19.12.1989. Thus, by no yard-stick, it can be said to be time barred. According to him, the trial Court has wrongly dismissed his petition on that count.
6. Respondent's learned counsel drew my attention to the trial Court's finding recorded while deciding issue No. 1 that after 4/5 days of filing of the divorce petition, she came to know about filing of this petition through her father, who got this information from certain villagers of village Mullanpur Kalan. The trial Court has categorically mentioned that she has admitted that thereafter she engaged Shri Khem Chand Dev, Advocate, Patiala, who used to tell her about all the proceedings taken in the divorce petition. Thus, according to him, the appellant came to know about the pendency of the divorce petition within 4/5 days of 19.6.1989, the date on which this petition was filed, but she waited till ex parte decree was passed on 28.11.1989 and thereafter on 19.12.1989 she filed this petition to set aside that ex parte decree.
7. According to him, even if she is to be believed on this count that she was never served in the divorce petition, she never received any notice sent through registered letter or could not know about the pendency of this petition through any newspaper, but in her own statement, she has admitted that within 4/5 days of the filing of this divorce petition, she came to know about the pendency of this petition. Not only this much, she engaged a lawyer and kept on watching the proceedings of the divorce case through him. Under these circumstances, she was required to file this petition for setting aside the ex parte order within 30 days from the date of knowledge of the pendency of this divorce petition. Therefore, the period of limitation cannot be counted from the date of decree, but from the date on which she gained knowledge of the pendency of this petition. Thus according to him, the trial Court rightly rejected her petition on this count.
8. In my considered view, the trial Court has not fallen into any error in dismissing the appellant's petition filed under Order 9 Rule 13, Civil Procedure Code. This Rule 13 has two proviso, the second proviso is reproduced in extenso below: -
"Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and has sufficient time to appear and answer the plaintiffs claim."
9. This proviso is added by the Act No.104 of 1976 w.e.f. 1.2.1977.
10. From the appellant's statement, it is obvious that within 4/5 days of the filing of the divorce petition, she came to know that her husband has filed such a petition against her though she has categorically stated that no summons or notice was ever served on her, but she gained knowledge of the pendency of this divorce petition through her father. She has also admitted that after gaining that knowledge, she enquired about the pendency of the divorce petition from the Court. She engaged a lawyer Shri Khem Chand Dev of Patiala, who used to tell her about all the proceedings taken in the divorce petition. The divorce petition was filed on 19.6.1989, which was decreed on 28.11.1989 and she has filed this petition under Order 9 Rule 13, Civil Procedure Code on 19.12.1989.
11. A perusal of the above provision clearly makes out that the appellant is not entitled to the relief of setting aside the decree. The lower Court has also recorded his satisfaction that the appellant-petitioner had knowledge of the case notwithstanding the irregularities, if any, in service of summons. I am also satisfied that it is a case where the petitioner's conduct is such, which does not inspire confidence. It cannot be accepted that she could not have known of the date of hearing in sufficient time and could not have appeared and answered the plaintiffs claim.
12. Accordingly, finding no merit in this appeal, it is hereby dismissed.