Punjab-Haryana High Court
Balwant Singh vs Kamlesh Verma on 29 May, 1996
Equivalent citations: (1996)114PLR138, 1996 A I H C 5666, (1997) MARRILJ 228, (1996) MATLR 428, (1997) 1 CURCC 300, (1997) 1 HINDULR 189, (1996) 2 RRR 661, (1996) 3 ICC 717, (1996) 114 PUN LR 138, (1996) 2 CURLJ(CCR) 471, (1996) 3 CIVLJ 829
ORDER
J.L. Gupta and M.L. Singal, JJ.
1. On January 2, 1993, the District Judge, Patiala passed an ex parte decree for divorce in favour of the Respondent-wife. The husband, the present appellant filed a first appeal No. 148 M of 1993. The petitioner was permitted "to make an application for setting aside the ex parte decree before" the trial court. The application as well as the first appeal having been dismissed, the husband has filed the present Letters Patent Appeal. A few facts may be noticed.
2. The parties were married on May 24, 1991. On July 24, 1992, Smt. Kamlesh Verma, the wife filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of the marriage. The Court directed the issue of notice for October 8, 1992. The notice was sent by registered post. It was not served. The court directed the issue of notice for November, 23, 1992. It was received back with the report that the addressee had refused to accept it. On November 23,1992, the Court passed an order for ex parte proceedings. It recorded evidence on December 8, 1992. On January 2, 1993, the Court passed an ex parte decree for divorce. The appellant filed FAO No. 148 M of 1993 to challenge the ex parte decree. On December 21,1993. A division Bench of this Court dismissed the appeal with the following order:-
"No case for interference with the order in appeal has been made out. Since the question arises whether the petitioner was proceeded ex parte after he refused to accept service or not and since this question is dependent upon the production . of evidence, the petitioner is permitted to make an application for setting aside the ex parte decree before the same court. With these observations, the appeal is dismissed.
Sd/-
N.C. Jain, Judge Sd/-
Amarjeet Chaudhary, 21.12.1993 Judge
3. On January 27, 1994, the appellant filed an application under Order 9 Rule 13 before the District Judge, Patiala. He alleged that he was never served with a notice of the petition under Section 13. He had no knowledge about the pendency of the divorce petition. He came to know about it on December 8, 1993. Consequently, he prayed that the ex parte decree be set aside. Notice of the application was given to Smt. Kamlesh Verma. She controverted the averments made in the application and alleged that the applicant had the knowledge of the divorce proceedings from the very beginning. It was alleged that the applicant had engaged Mr. Balbir Singh, Advocate who had intentionally avoided to appear in the Court. On the basis of these pleadings of the parties, the learned District Judge framed the following issues :-
1. Whether there is sufficient cause for setting aside ex parte decreed dated 2.1.1993? OPA
2. Relief.
4. The applicant appeared as his own witness. In rebuttal, the respondent examined three witnesses besides herself appearing as RW.3. The parties also produced certain documents.
5. On an examination of the evidence, the learned District Judge found that -
(i) The applicant (the present appellant) "appears to be a big liar". It was "to his knowledge that divorce proceeding a were pending against him."
(ii) An examination of the original file showed that notice alongwith a copy of the petition under Section 13 had been sent by registered post to the applicant. After repeated efforts, the Postman had returned it with the report that he was not available. Again, effort was made "for the service of Balwant Singh for 23.11.1992 vide registered envelope, Ex. R.8. The postman returned it with the report of 'refusal'. On the basis of this report ex parte proceedings were ordered by the court as "it was satisfied that the respondent.... was evading the service and later on he (had) refused to accept the service."
(iii) A copy of the notice dated July 16,1992 Ex. A.1 produced by the applicant Balwant Singh himself shows that divorce petition was pending in the court of District Judge, Patiala. Furthermore, Balwant Singh had appeared before the Women Cell, Patiala on October 29,1992. A copy of his statement is on record as Ex.R.2. It is signed by Balwant Singh. He had admitted in his statement "that his wife Smt. Kamlesh Verma had filed a petition in the Court of the District Judge" which was pending. Still further, on October 23,1992, the statement of Smt. Kamlesh Verma was recorded in the Women Cell "in the presence of Balwant Single" and in that statement also there is a reference" to the pendency of the proceedings.
Shri Balwant Singh had filed an appeal before the Hon'ble High Court for setting aside the ex parte decree against him. On this basis, the Court has concluded that the appellant was aware of the pendency of the proceedings in the Court and had intentionally failed to appear.
(iv) The application under Order 9 Rule 13 was not filed within 30 days from the date on which even the appeal viz. F.O.No. 148 M of 1993 filed by the appellant had been dismissed.
6. Resultantly, Issue No.1 was decided against the appellant. As a consequence, the application was dismissed. The first appeal having been dismissed by the learned Singh Judge, the appellant has filed the present Letters Patent Appeal.
7. This appeal had come up for hearing before the Bench consisting of M.S. Liberhan and Sat Pal, JJ. on January 17, 1996. It was adjourned to January 25, 1996 "to enable the counsel for the respondent to have appropriate instructions to drop proceedings under Sections, 406, 420 IPC"; Thereafter, the proceedings were adjourned on different dates. On March 8, 1996, the case had come up for hearing before us. After hearing learned counsel for some time, we had directed the parties to be personally present. They appeared before us on April 26, 1996 and May 2, 1996. We had on both occasions explored the possibility of a compromise. It was clear to us that the reunion was not possible. However, the appellant-husband was willing to accept a decree for divorce and withdraw his appeal if the respondent-wife agreed to withdraw her complaint for the return of dowry articles. It was stated by the respondent-wife that the appellant should return the articles of Jewellery etc. She pointed out that her father had died. Her mother had no means. If the articles of dowry or atleast the jewellery were returned, she may be able to re-marry. The husband's attitude, we found, was adamant. Initially, he had made an offer to pay her an amount of Rs. 5000/-. After repeated efforts by us, as well as his counsel, it appeared that he might agree to pay Rs. 20,000/-. The respondent-wife wanted at least Rs. 25,000/-. The husband did not agree to it. As a result, we proceeded to hear the learned counsel for the parties.
8. Mr. P.N. Aggarwal, learned counsel for the appellant submitted that the learned trial court had not issued any notice to the appellant in accordance with provisions of law. Consequently, the court has erred in refusing to set aside the ex parte decree. It was further submitted that the Postman had wrongly reported that the appellant had refused to accept notice. Mr. Aggarwal emphasised the report at Ex. R.8 is dated July 20, 1992. The petition it self having been filed on July 24, 1992 and the summons having been issued thereafter, the report could not have been made on July 20, 1992. Learned counsel was also at pains to point out that the delay in filing the application under Order 9 Rule 13 deserved to be condoned in the circumstances of the case. Learned counsel also referred to the following decisions of different Courts in support of his submissions:-
(i) Narendra Kishore Dass v. Banamati Sahu, A.I.R.1951 Orissa 312.
(ii) Radha Ballav Thakur v. Dayal Chand Bose, A.I.R.1962 Orissa 15.
(iii) Arjan Singh v. Hazara Singh, (1965)67 P.L.R. 643.
(iv) Gurdev Singh v. Pb. and Pepsu Finance Co., A.I.R.1973 P&H 139.
(v) Shanti Devi v. Mangat Rai, (1977)79 PLR 476.
(vi) Pazhekottal Nabeessu v. Pazhokottat Kunhamina, 1978 Kerla 143.
(vii) Nassib Singh v. Jagdish Chand, (1980)82 PLR 729
(viii) Sohap Singh v. Puran Singh, (1986-2)90 PLR 398
(ix) Smt. Suresh Devi v. Babu Ram, (1988-1)93 PLR 286
(x) Sarwan Kumar v. Shyam Mangla, (1990-1)97 PLR 152.
9. On the other hand, Mr. Arun Palli, learned counsel for the respondent-wife submitted that the appellant was aware of the pendency of the proceedings before the District Judge, Patiala. He knew that the respondent-wife had filed a petition under Section 13 of the Hindu Marriage Act, 1955 for the dissolution of the Marriage by a decree of divorce. Initially, the notice was sent for October 8, 1992. The postman had visited the petitioner's office a number of times. Ultimately, the notice was returned to the court without service. When a fresh notice was sent, the appellant had refused to accept it. As for the plan that the report of refused was unworthy of credence on the ground that it was made on a date even prior to the initiation of the proceedings, the learned counsel submitted that no such plea had been raised in the application under Order 9 Rule 13. Consequently, the learned counsel could not be permitted to raise it for the first time before this court. It was also submitted that the application under order 9 Rule 13 was barred by limitation. Consequently, the appellant is not entitled to any relief. Mr. Palli also referred to certain decisions in support of his submissions.
10. It is true that notice should be issued to the concerned parties in accordance with law. Every person should be given a chance to defend himself. Grant of due and reasonable opportunity to a party to put forth its view point and to adduce the evidence is necessary. It is only then that a court of justice can effectively decide the dispute. It is primarily on account of this reason that the courts are reluctant to proceed in the absence of the party or to give ex-parte decrees. Normally, we would have been inclined to set aside the exparte decree and order a re-trial of the dispute. However, in this case, we think that it would be inequitable to do so for various reasons.
11. Firstly, it is clearly established on the record that the appellant was aware of the pendency of the proceedings for divorce in the court of District Judge, Patiala. A notice had been sent by the respondent through her counsel to the appellant. It bears the date July 16, 1992. However, the contents indicate that it was sent a few days later as it had been mentioned in this notice that my client has already filed a divorce petition against you i.e. Balwant Singh in the court..." This notice was produced by the appellant himself before the court on October 10, 1994 and is on record as Ex. A.1. Consequently, it is clear that the appellant was aware of the pendency of the proceedings. Still further, the appellant had also appeared before the Women Cell on October 29, 1992. He had made a statement which is on record as Ex.R.2. In this, the appellant had alleged that on account of her greed for money, the respondent did not want to stay with him and had filed " a case for divorce in the court of District Judge, Patiala." It is, thus, clear that the appellant had himself acknowledge his awareness about the pendency of the proceedings in the court of District Judge, Patiala. In this situation, it is not surprising that the initial notice set to him for October 8, 1992 was returned by the Postman to the Court. This is on record as Mark 'X'. It shows that the Postman had visited the office of the appellant on atleast six days and finally he had returned it with the remarks that after repeated visits, the addresses was not available. Thereafter, fresh notice was issued for November 23, 1992. On the registered AD envelope, the names of the parties viz. Kamlesh Verma v. Balwant Singh have been clearly recorded. Furthermore, it had been indicated that the case is under "HM Act". The date of hearing viz. November 23, 1992 is also mentioned. The registered envelope was received by the Postal Department on October 19, 1992. It appears to have been despatched on the same day. The address as given on the registered notice is the same as given by the appellant in the present appeal. Consequently, it is clear that the registered letter was sent at the correct address. Furthermore, the Postman, Harjinder Singh who had reported that the appellant had refused to accept the registered letter sent to him, has appeared as RW-4. He has categorically stated that endorsement Ex.R.8 on the back of the registered envelope, Ex. R.9 has been written by him. He had contacted the addressee of Ex.R.8 and on his refusal to accept the registered envelop, he had made the said endorsement. As against this the appellant when he appeared as AW1 stated that he "did not know about the pendency of the petition under Section 13 of the Hindu Marriage Act prior to 20.12.93." This was obviously not correct, From the record of FAO No. 148 M of 1993, we find that the appellant had submitted an application for the supply of a certified copy of the judgment dated January 2, 1993 on December 10, 1993. He had filed the appeal alongwith an application under Section 5 of the Limitation Act in which he had admitted that he had come to know about the decree on December 8, 1993. It is, thus, clear that the appellant had been making different statements at different times. The observation of the learned District Judge that "he appears to be a big liar" is not without basis.
12. Secondly, Section 21B of the Hindu Marriage Act provides for expeditious trial of the case. This provision has been made with the avowed object of not prolonging the misery of the two spouses. In this situation, the strict provisions of the Code of Civil Procedure, if followed, would virtually defeat the object with which the Section 21-B was enacted. In the circumstances of the present case, when we are satisfied that the appellant had knowledge of the pendency of the proceedings, it does not appear to be in the interest of justice to interfere with the order passed by the trial court or the learned Single Judge.
13. Thirdly, the postman, in our view, had no reason to make a false report. It is undoubtedly correct that the report appears to bear the date July 20,1992. However, the Postal Stamps clearly indicate that the letter was registered on October 19, 1992. Consequently, the report on this registered envelope could have been made only on October 20, 1992. It appears likely that the Postman made a mistake in noting down the month while making the report. However, the fact remains that no such objection was raised in the application under Order 9 Rule 13. Even when the Postman appeared as a witness, it was not specifically put to him as to why he had made a report on July 20, 1992 on an envelope which was despatched by the Post Office on October 19, 1992 still further, even a contention in this behalf was not raised before the trial court.
14. Fourthly, it appears that the marriage has irretrievable broken. No useful purpose would be served by prolonging the agony of the parties by ordering a retrial.
15. Fifthly, it is also clear that the application under Order 9 Rule 13 was not made within 30 days of the appellant having become aware of the decree. it is established on the record that atleast on December 8, 1993, he knew about the decree. The application was filed by the appellant on January 27,1994. Even if the limitation is counted from December 21, 1993 when FAO No. 148 M of 1993 was filed, the application was barred by limitation.
Taking the totality of circumstances into consideration, we are of the view that the finding recorded by the trial court on Issue No.1 deserves to be upheld.
A detailed reference to the judgments cited by the learned counsel for the appellant is not necessary. All these are clearly distinguishable on facts.
In view of the above, we find no ground to interfere in this Letters Patent Appeal. Accordingly, we dismiss it. However, in the circumstances, we made no order as to costs. Copies of the court record before the trial court which had been produced by the counsel for the parties be returned to them.