Calcutta High Court (Appellete Side)
Biswadeep Gupta vs Sulata Gupta on 12 June, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
APPELLATE SIDE
Before:-
THE HON'BLE JUSTICE RAJASEKHAR MANTHA
C.O. No.2880 of 2018
BISWADEEP GUPTA
VERSUS
SULATA GUPTA
For the Petitioner : Mr. Surojit Nath Mitra, Sr. Advocate.
Mr. Purnasish Gupta, Advocate.
Mr. Jayanta Kumar Mukhopadhyay,
Advocate.
Ms. Mary Dutta, Advocate.
For the Opposite : Mr. Probal Mukherjee, Sr. Advocate.
Party Mr. Ananya Neogi, Advocate.
Hearing Concluded on : 10.06.2019
Judgment On : 12.06.2019
Rajasekhar Mantha, J.:-
1.The instant Revisional application is directed against judgment and order dated 13th April, 2018 passed by the Learned Additional District Judge, Fast Track Court-I, Howrah, in Miscellaneous Case No.16 of 2016 arising out of Matrimonial Suit No. 802 of 2015. 2
2. By the impugned order an exparte decree dated 8th December, 2015 was set aside under Order 9 Rule 13 of the Code of Civil Procedure 1908, read with Section 5 of the Limitation Act.
3. The facts relating to the case are inter alia that on 26th February, 1997 a marriage was solemnized according to Hindu rites and Customs between the Revisionist, husband and the Opposite Party, wife.
4. The parties initially lived at New Delhi and thereafter lived in Howrah from the year 2000. Prior thereto on the 25th of November, 1997 a male child was born out of the wedlock.
5. Disputes and differences arose between the parties and on 20th April, 2009 the Opposite Party left the matrimonial house alongwith their minor son to stay at Lucknow with her mother and two brothers.
6. On the 4th January, 2010 the Revisionist went to Lucknow to bring the O.P. back the OP and the minor son but was unable to do so as he was not allowed to enter into the house of the opposite party.
7. The Revisionist thereafter filed Matrimonial Suit being MAT Suit No. 13 of 2010 in the Court of Learned District Judge, Howrah under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights alongwith an application for custody of his minor son under Section 25 of the Guardians and Wards Act, 1925.
8. The O.P. wife thereafter filed two applications before the Hon'ble Supreme Court being T.P. Nos. 382 and 383 of 2010, under Section 3 24 of the Civil Procedure Code, for transfer of the aforesaid two proceedings from Howrah to Lucknow.
9. The Hon'ble Supreme Court of India referred the parties to mediation. In course of mediation the Opposite Party declared on the 18th July, 2011 that she would never go back to her matrimonial house with the Revisionist. Failure of mediation accordingly was recorded.
10. As a consequence whereof the Revisionist on 17th October, 2011 informed the Hon'ble Supreme Court that he does not wish to proceed with the suit for restitution of conjugal rights and custody any further and two suits were dismissed by the Hon'ble Supreme Court.
11. The Revisionist thereafter instituted MAT Suit No. 802 of 2015 on the 27th August, 2015, seeking divorce on the ground of cruelty under Section 13 of the Hindu Marriage Act, 1955. On the said date the District Judge at Howrah fixed the 26th November, 2015 for service return and acknowledgement and final of postal receipts.
12. After receipt of summons in MAT Suit 802 of 2015, on14th September 2015, the Opposite Party filed Transfer Petition (Civil) No.189 of 2015 before the Hon'ble Supreme Court of India on 18th November, 2015 seeking transfer of Matrimonial Suit No. 802 of 2015 from Howrah to Lucknow. The said Transfer Petition was dismissed on 14thDecember, 2015 by the Hon'ble Supreme Court finding no grounds. The Transfer Petition was admittedly neither served on the Revisionist nor notified to the Court below.
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13. The Opposite Party did not choose to enter appearance in the suit either prior to or after dismissal of the said Transfer Petition. The Opposite Party has stated in her application in the Court below that she did not enter appearance because she was assured success in the Supreme Court in the Transfer Petition. She also stated that she could not come to Howrah to contest the suit due to ill the health of her mother and her pre-occupation with her son who was sitting for the final ISC Examination and that was fixed on February-March, 2016. She also stated that she had no means to support litigation at Howrah.
14. In the meantime, MAT Suit No.802 of 2015 was taken up by the Court below which, upon being satisfied with service, heard and decreed the suit ex-parte on the 8th of December 2015.
15. The Opposite Party after dismissal of the transfer petition is stated to have contacted her present lawyers at Howrah. She stated that she came to know on 25th January, 2016 for the first time that the suit was decreed ex-parte on 8th December, 2015. The Opposite Party, however, did not indicate as to when exactly she contacted her lawyers at Howrah why she did not take steps in the suit since 14th September, 2015.
16. Having come to know of the exparte decree the Revisionist is stated to have instructed her lawyer at Howrah to prepare necessary application praying for the ex-parte decree to be set aside. It is assumed the said instructions were issued on the 25th January, 2016. There is no 5 explanation however as to what the Opposite party was doing from 14th December, 2015 after Transfer Petition No.189 of 2015 was dismissed by the Hon'ble Supreme Court till 25th January, 2016.
17. The application for setting aside the exparte decree is stated to have been received by the Opposite Party from her lawyers at Howrah on the Email address of her brother on 7th February, 2016. The Opposite Party took 17 days to finalise and affirm the said application under Order 9 Rule 13 and despatched the same on 24th February, 2016 to her lawyer at Howrah.
18. It however appears from the verification portion of the application that the same was affirmed before a notary public at Lucknow on the 10th February, 2016. There is no explanation as to why the Revisionist waited until the 24th February, 2016 to despatch the same from Lucknow to Howrah. The said application under Order 9 Rule 13 by the Opposite Party was actually filed on 25th February, 2016 in the Court below.
19. Alongwith the applicaton under Order 9 Rule 13 the Opposite Party also filed an application under Section 5 of the Limitation Act.
20. After expiry of statutory period of waiting from the decree the Revisionist on the 10th March, 2016 contracted a second marriage.
21. The Examination-in-Chief by way of affidavit was filed by the O.P. Under Section 5 of the Limitation Act and she was cross-examined on 4th May, 2018 i.e. the same day on which the affidavit in chief was 6 field. The Revisionist also filed evidence in chief both to the application under Section 5 of the Limitation Act and Order 9 Rule 13.
22. The Revisionist was also examined and cross examined on the same day i.e. 4th May 2018. The Court below took up the application under Section 5 of the Limitation Act alongwith the application under Order 9 Rule 13 and allowed the same vide the impugned order.
23. Extensive arguments has been made by the Revisionist as well as the Opposite Party in respect of the impugned order. The Revisionist would rely upon a judgment of a Co-ordinate Bench of this Court in the case of Jahar Dey vs. Smt. Brojeshwari Saha, reported in AIR 2000 Cal 280, arguing that the application under Section 5 could not have been heard alongwith the Application under Order 9 Rule 13 and that too without separate Evidence being led.
24. The Revisionist would also rely upon a Division Bench Judgment of this Court in the case of Jharna Rani Ghosh Vs. Prabir Kumar Ghosh, reported in (2015) 2 CHN (Cal) 15, in similar facts a Division Bench of this Court refused to set aside the ex-parte decree.
25. The Opposite party would rely upon the judgment of the Hon'ble Supreme Court in the case of Parimal Vs. Veena @ Bharati, reported in (2011) 3 SCC 545 and the case of G. P. Shrivastava Vs. R. K. Raizada, reported in (2000) 3 SCC 54 on the princples to be applied under Or 9 Rule 13 of the Code.
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26. The first argument of the revisionist is centered around the Jahar Dey (supra) decision of this Court. The revisionist would argue that evidence in chief of the Opposite Party in the Court below was filed specifically under the application for condonation of delay under Section 5 of the Limitation Act. The Court below, according to the Revisionist, therefore, could not have decided the Order 9 Rule 13 of the CPC while deciding an application under Section 5 of the Limitation Act and that too without any specific evidence being led on the Order 9, Rule 13.
27. This Court notes the said argument as also the decision of a Single Bench of this Court in the case of Jahar De (supra). It is true that the evidence in chief filed by the Opposite Party was under Section 5 of the Limitation Act and there was no mention that the same would also be considered as common evidence for the application under Order 9 Rule 13 of the CPC, 1908. However, this Court notes that the evidence in chief filed by the Revisionist in the Court below was both under Section 5 as well as Order 9 Rule 13.
28. It is obvious that unless the application under Section 5 is decided the need for decision on the application under Order 9 Rule 13 would not arise. Considering the Jahar De (Supra) decision this Court holds that it would depend on the facts and circumstances of each case as to whether the two applications should be heard and disposed of by a single order or by separate orders.
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29. On the question as to whether the delay ought to have been condoned and as to whether the exparte decree ought to have been recalled i.e. whether the Opposite Party has been able to demonstrate sufficient cause for not filing the application under Order 9 Rule 13 within time and for being prevented from causing appearance in the Court below, the impugned judgment however needs to be examined.
30. The expression 'sufficient cause' is used both in Section 5 of the Limitation Act, 1963 as also under Order 9 Rule 13 but for different purposes. Under Order 9 Rule 13 the language is "sufficient cause for failure to appear when the suit was called on for hearing" and under Section 5 of the Limitation Act the words are "sufficient cause for not preferring the appeal or making the application within the time prescribed".
31. While assessing sufficient cause under Order 9 Rule 13 a defaulting party's subsequent diligence may in some cases be relevant to ascertain the urgency with which he had approached the Court in question. However the test of sufficiency of the cause which prevented the litigant concerned from appearing before the Court despite knowledge of the proceeding is however much more stringent.
32. Even while considering an application under Section 5, in a given situation a Court may take a liberal approach but the requirement of the demonstrating sufficient cause under Order 9 Rule 13 is stricter and more intense than the approach to condonation of delay under 9 Section 5 of the Limitation Act. It would depend on the facts and circumstances of each case and period of delay involved.
33. The stringency to be applied must essentially be viewed in the context of rights accruing to the diligent opponent. Civil and commercial rights which have accrued to a opponent can in most cases be remedied and compensated monetarily. However, the matter assumes a completely different perspective when the diligent party alters his position irreversibly in a non-commercial context. While the alternation of position by the diligent party per se cannot be the sole consideration for the stringency of the test of sufficient cause, it would be a vital consideration depending on the nature of the litigation between the parties and the facts of such case.
34. In the instant case it is evident that the relations between the parties and the Opposite Party had irretrievably broken down since the Opposite Party wife stated before the Hon'ble Supreme Court that she was not interested in living with the revisionist anymore. As a consequence whereof the application under Section 9 of the Hindu Marriage Act, 1955 was withdrawn by the revisionist and dismissed by the Hon'ble Supreme Court.
35. The revisionist filed the instant suit under Section 13(1) of the 1955 Act, seeking divorce on the27th of August 2015 summons whereof were duly received by the Opposite Party on 12th September 2015. The OP thus had full and complete knowledge of the institution pendency of the suit and the date on which it was due to be listed to 10 receive pleadings from her side. She chose to move of an application before the Hon'ble Supreme Court of India under Section 25 of the CPC, for transfer of the said suit from Howrah to Lucknow without causing appearance in the suit. She, therefore, wilfully and consciously allowed the suit to proceed unrepresented and exparte on a date which she knew she had to be represented before the District Court at Howrah. She neither notified the Revisionist nor the Court below of the filing of such Transfer Petition before the Hon'ble Supreme Court.
36. She had the means to approach the Hon'ble Supreme Court of India at New Delhi from Lucknow but states that she had no means to cause appearance either by herself or through an advocate at Howrah where and when the suit was posted. The absence of means therefore cannot be accepted as sufficient cause for being prevented from causing appearance in the suit.
37. The other grounds urged were the ailment of the mother and the Class XII examinations of her son, do not inspire confidence with this Court as the same did not prevent her from approaching the Hon'ble Supreme Court at New Delhi. It could be said in more ways than one that New Delhi and Howrah are equidistant from Lucknow. This Court, therefore, is not satisfied that the Opposite Party had sufficient cause to prevent her from appearing on the date which she admittedly knew, when the suit was posted for hearing.
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38. This Court is conscious of the fact that there is an element of discretion under Order 9 Rule 13 of the Code, albeit lesser than under Section 5 of the Limitation Act. It is equally true that the parameters of sufficient cause under Order 9 Rule 13 must be suitably, properly and effectively applied by a Court while exercise of such discretion. In the instant as would be also seen from the subsequent paragraphs herein, the Opposite Party at material times was negligent and wilfully allowed the suit to proceed exparte by not causing appearance in the Court below.
39. The explanation for delay in filing the application under Order 9 Rule 13 equally has a large number of loopholes. The proceeding before the Hon'ble Supreme Court was dismissed on 14th December 2015. Notice of the transfer petition was neither given to the Court below nor to the Revisionist. Hence the Court below cannot be faulted for taking the view that the Opposite Party despite having been served with the summons may not have been interested in contesting the proceeding for divorce.
40. Even after dismissal of the transfer petition before the Hon'ble Supreme Court on 14-12-2015 the revisionist allowed time to while away and casually mentions that she contacted her lawyers thereafter and came to know only on 26th January 2016 that the suit was decreed exparte. The OP is slient on when exactly she contacted her lawyers after 14th December 2015 and what compelled her to wait until the second half of January to contact her lawyers at Howrah. 12
41. The date of affirmation of the application under Order 9 Rule 13 before the notary public at Lucknow has somehow evaded both the parties. The application was affirmed on the 10th January, 2016, before a Notary Public at Lucknow and for some unexplained reasons the opposite party waited for 14 days to despatch the same from Lucknow to Kolkata. Even after filing of the application under Order 9 Rule 13 it is not clear, since the OP has not indicated when the application was served on the revisionist.
42. While third party rights have accrued lawfully, it can also undoubtedly inferred that of the opposite party allowed rights in favour of the Revisionist and the third party (2nd Wife) by reason of her casual attitude, wilful delay and negligence.
43. While dealing with an application under Order 9 Rule 13 only the conduct of the OP upto the decree must be taken into consideration, except as indicated hereinabove. The Court below committed grave error in addressing facts and events in Court proceedings after the date on which the suit was set exparte, heard and decreed while dealing with the Order 9 Rule 13 application.
44. As already stated hereinabove and at the risk of repetition, for addressing sufficiency cause under Order 9 Rule 13 a Court is required to restrict itself to factors that prevented the Opposite Party from appearing on the date when the suit was either set exparte or heard exparte or both. There is deemed knowledge on the part of a litigant who received summons and hence on sufficient notice of all 13 proceedings and dates in the suit. The expedition or otherwise with which the suit proceeded after it was set exparte or on the date that it was set exparte is totally irrelevant to the sufficiency of cause required to be shown by the Opposite Party under Order 9 Rule 13 of the Code.
45. This Court has noted paragraphs 8-13 of the Parimal decision (supra) as also paragraph 7 and 8 of the G.P. Srivastava decision (supra). The view taken by this Court in the facts of the instant case is with harmony with a dicta of the Hon'ble Supreme Court in the aforesaid two cases. In fact even in the Parimal decision the Court was satisfied that the Opposite Party wife was not able to demonstrate sufficient cause to say that she was prevented from appearing before the Court on the date when matrimonial suit was heard, exparte and disposed of granting a decree for divorce as prayed for by the husband.
46. In the facts of the case as discussed hereinabove, this Court does not find the OP has been able to demonstrate sufficient cause either under Section 5 of the Limitation Act 1963, much less under Or 9 Rule 13 of the CPC. The impugned order is not sustainable.
47. This Court had requested the parties to settle on the amount of payment to be made to the Opposite Party towards permanent alimony and costs of litigation. A sum of Rs. 10 lakhs was proposed by the Court as lumpsum payment which was declined by the opposite party wife. It is, therefore, ordered that a sum of Rs.15,000/- 14 be paid as litigation costs to the Opposite Party wife by revisionist. The Opposite Party wife shall at liberty to approach the appropriate forum towards her claim for permanent alimony and maintenance on account of herself as well as her son, in accordance with law.
48. In view of the aforesaid the impugned judgment and order dated 13th July 2018, passed by the Additional District Judge, Fast Track Court- 1 at Howrah, in Misc Case No.16 of 2016 arising out of MAT Suit No.802 of 2015 is hereby set aside and the decree for divorce dated 8th December 2015 and order dated 15th December 2015 is hereby restored and confirmed. The applications under Order 9 Rule 13 Code of Civil Procedure1908 and under Section 5 of the Limitation Act 1963 made by the Opposite Party shall stand dismissed.
49. No order as to costs.
50. Urgent Photostat certified server copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)