Madhya Pradesh High Court
Smt. Rajeshwari vs Jugal Kishore Gupta on 12 April, 1989
Equivalent citations: AIR1990MP217, I(1990)DMC502, 1990(0)MPLJ103, AIR 1990 MADHYA PRADESH 217, (1994) JAB LJ 397, (1990) 1 DMC 502, (1990) MATLR 293, (1990) 2 HINDULR 17, (1990) 1 CIVLJ 809, (1990) 1 CURCC 367, (1990) MPLJ 103
JUDGMENT P.C. Pathak, J.
1. The defendant/wife has filed this appeal against rejection of her application under Rule 13 of Order IX of the Code of Civil Procedure.
2. The respondent/husband filed a petition on 10-12-1982 under Section 12(1)(b) and (c) for annulling the marriage by a decree of nullity alternatively under Section 13(1)(b) of the Hindu Marriage Act, 1955 (hereinafter in short 'the Act') to dissolve the marriage by a decree of divorce on the allegations that the parties were married on 1-3-1978 according to Hindu rites and customs. Thereafter, the defendant lived with the plaintiff until 20-3-1978 whereafter she returned, along with her brother, to her parents' house. Thereafter, she was again brought to matrimonial home on 7-5-1978 and lived with him till 12-8-1978. During her stay with the plaintiff, he discovered that she was suffering for the last about five years from epilepsy. The marriage was thus in contravention of Section 5(ii)(c) of the Act viodable under Section 12(1)(b) of the Act. On 14-3-1979, the plaintiff also recovered a letter containing objectionable and obscene words addressed to the defendant. On enquiry, the defendant declined to explain the possession of that letter in her trunk. The defendant became upset and unequivocally declared to return to her parents. On 18-3-1979, her brother came and she returned to her parents' house.
3. The trial Court issued summons for her appearance on 28-1-1983 by ordinary means as also through a registered post. However, the plaintiff paid process only for ordinary service. The summons remained unserved until 14-2-1983. On this date, the Court again ordered the plaintiff to pay process for issue of summons by ordinary means as also by registered post and fixed the case for 4-4-1983. On this date, the summons was not received back. Hence the case was adjourned to 15-4-1983. The envelope sent through registered post to Gwalior was received back, but the similar envelope sent to the defendant addressed at Tikamgarh was not received by the Court. Hence the trial Court proceeded ex parte on 15-4-1983. After recording ex parte evidence of the plaintiff on 30-4-1983, the Court passed the ex parte judgment and decree under Section 13(1)(b) of the Act on the ground of desertion; Other grounds alleged were held not proved.
4. On 11-7-1983, the defendant filed an application under Rule 13 of Order IX of the Code of Civil Procedure alleging that she had never received any summons of civil suit No. 207-A of 1982. She had filed a civil suit No. 5-A of 1983 under Section 9 of the Act for restitution of conjugal rights in the Court of District Judge, Gwalior. The plaintiff filed his written statement in that suit on 29-6-1983 when the defendant for the first time learnt about the ex parte decree in the suit filed by him at Jabalpur. She, therefore, submitted that the plaintiff obtained the ex parte decree by playing fraud on the trial Court and the decree was liable to be set aside.
5. The plaintiff opposed the application inter alia on the ground that the defendant had knowledge of the pendency of the suit at Jabalpur through her advocate Smt. Simla Jain who attended the Court on 4-4-1983 and 15-4-1983 watched progress of the case but without filing power in the suit.
6. On the aforesaid pleadings, the defendant examined herself and Shri K. K. Dwivedi, Advocate at Gwalior, while the plaintiff examined himself, his brother Shri Krishna Gupta (NAW 2) and Court Reader Laxmi Narain Dube (NAW 3).
7. Disbelieving the defendant's evidence and relying on the statements of Shri Krishna Gupta (NAW 2) and Court Reader Laxmi Narain Dube (NAW 3), the learned trial Court held that the defendant had the knowledge of the pendency of the suit at Jabalpur Court. Therefore, the ex parte decree could not be set aside under proviso to Rule 13 of Order IX of the Code of Civil Procedure. The application was accordingly rejected. The defendant has, therefore, filed the present appeal.
8. After service of notice of the appeal the plaintiff/respondent filed I.A. No. 6198 of 1984 for dismissal of the appeal on the ground that the plaintiff has already remarried with Ku. Rajni Sarawagi on 20-4-1984 at Jabalpur according to Hindu rites and customs. In order to prove the marriage, he enclosed photographs taken on the occasion of the marriage ceremony as Annexure A and news item of the marriage published in Navbharat, local daily, dated 29-4-1984 (Annexure B).
9. At the hearing learned counsel for the respondent argued that by virtue of the second marriage on 20-4-1984, the appeal is rendered infructuous. In support of his contention, relied on S. P. Srivastava v. Prem Lata, AIR 1980 All 336, Mohanmurari v. Kusumkumari, AIR 1965 Madh Pra 194 and Lila Gupta v. Laxmi Narain, AIR 1978 SC 1351. He also relied on note No. 178 at page 806 of Hindu Law (3rd (1981) Edition) Vol. 2, by S. V. Gupte. Learned counsel for the appellant opposed the application relying on Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839.
10. Section 15 of the Act provides time limit whereafter the parties get a right to remarry any person. Before the Marriage Law (Amendment) Act of 1976, the proviso to Section 15 of the Act required the parties to wait for a minimum period of one year from the date of decree in the Court of the first instance. By the Marriage Laws (Amendment) Act, 1976, the proviso was deleted. Section 15 as it stands today runs as under :
"When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again."
11. The question for decision is whether the appeal is rendered infructuous on account of the respondent's second marriage with one Ku. Rajni Sarawagi of Kotwali Ward, Jabalpur, on 20-4-1984. The application to set aside the ex parte decree was dismissed on 5-4-1984 and the respondent remarried just within 15 days of the said order. Learned counsel for the respondent argued that the time limit prescribed by Section 15 of the Act is applicable only for an appeal against a decree of divorce. A party to a proceeding for setting aside ex parte decree is not required to wait for the period allowed for filing an appeal against an order rejecting an application to set aside ex parte decree. He supported his arguments by a decision of a Division Bench of this Court in Mohanmurari's case, (AIR 1965 Madh Pra 194) (supra). In this case, it was held that Section 15 applies only in a case of dissolution of the marriage by a decree of divorce. Section 13 of the Act cannot apply where the marriage is annulled under the provisions of Section 11 or 12 of the Act. It was, therefore, held that if after passing of the decree under Section 12 either spouse marries, while other spouse has filed an appeal against the decree the marriage would be valid and appeal would become infructuous, unless, of course, the spouse filing the appeal has obtained a prohibitory order restraining the other spouse from remarrying. In S. P. Shrivastava's case, (AIR 1980 All 336) (supra), an ex parte decree for divorce was passed on 2-6-1973. The wife made an application under Rule 13 of Order IX of the Code of Civil Procedure for setting aside the ex parte decree alleging that she came to know about the ex parte decree only on 15-4-1976. Temporary injunction restraining the husband from contracting a second marriage was served on the husband two days after he contracted second marriage with another girl on 16-4-1976. The ex parte decree was set aside by the trial Court. The husband, therefore, filed a revision. It was argued that there was no power under Section 15 of the Act, if there was no right of appeal and also when the period has expired and the appeal was not filed. The learned single Judge held that the second marriage contracted by the husband could not be said to be void since no appeal had been filed within the period allowed for filing an appeal and the application for setting aside the ex parte decree filed after the marriage had already been contracted could not be put on higher footing than that of an appeal if there was no bar on the date the second marriage was contracted. That marriage cannot be struck down. Relying on Smt. Lila Gupta v. Laxmi Narain, AIR 1978 SC 1351, the learned Judge held that even if there was a bar, the marriage would not be void.
12. Learned counsel for the respondent also relied on Smt. Varsha Gadrey v. Vilas Gadrey, F. A. No. 131 of 1979 decided on 31-10-1979, wherein it was held that in case a decree for annulment passed under Section 12 of the Act, there was no impediment in contracting a fresh marriage and the appeal was dismissed as infructuous after the husband had contracted a remarriage. A similar view was taken in Smt. Pushpa v. Dinesh Kumar, F. A. No. 127 of 1979 decided on 30-11-1979. Learned counsel for the respondent also referred to the opinion of the author Shri S. V. Guptc on Hindu Law (Vol. II 3rd Edition) at para 178 (page 806) under Section 15 of the Hindu Marriage Act. The learned author writes that Section 15 only provides for the time for filing an appeal as a period during which remarriage is prohibited. It does not provide for the case of an application for setting aside an ex parte decree for dissolution which would be competent under the Code of Civil Procedure. Therefore, a remarriage even during the pendency of such an application would be valid unless the applicant has obtained an interim order of injunction and on such remarriage the application would be fruitless.
13. Learned counsel for the appellant distinguishing the facts of the aforesaid cases, cited Tejinder Kaur v. Gurmit Singh, AIR 1988 SC 839, wherein it was held that though Section 15 in terms does not apply to a case of special leave to appeal to the Supreme Court under Article 136 of the Constitution, a spouse, who has won in the High Court and got a decree of dissolution of marriage, cannot by marrying immediately after the High Court's judgment take away the right of presenting an application for special leave to appeal from the other spouse. The Supreme Court observed that "the successful party must wait for a reasonable time and make sure whether an application for special leave has been filed in the Supreme Court". Where the husband remarried after one month of the High Court's judgment of dismissal, it was held that he cannot be allowed to raise the plea that since he has remarried the special leave petition filed by the wife becomes infructuous. It was incumbent on him to have apprised himself as to whether the appeal in the High Court was still pending, and if not, whether, the period for filing a special leave petition to the Supreme Court had expired. Similarly, in Chandra Mohini v. Avinash Prasad, AIR 1967 SC 581, it was held that a party who obtained a decree for dissolution of marriage cannot by marrying immediately after the decree take away from other spouse the chance of prosecuting the application for special leave and second marriage by that party in the meantime would be illegal.
14. The Madras High Court in Vathsla v. Manoharan, AIR 1969 Mad 405, dissenting from the view of this Court in Mohanmurari v. Kusumkumari, (AIR 1965 Madh Pra 194) (supra) held that the law allows an appeal as well as an application to set aside an ex parte decree and actually those remedies have been resorted to, any act of the parties pending final disposal of the proceedings cannot have the effect of rendering the proceedings infructuous; to hold otherwise would mean that by the act of a party, the other party successfully defeats lawful remedy given to an aggrieved party. The Jammu High Court in Krishen Lal v. Mst. Krishna, AIR 1971 J&K 31, declared the second marriage invalid and passed, a decree for restitution of conjugal rights on a petition filed by the first husband against the wife who remarried during the pendency of the appeal.
15. In the present case, the application to set aside ex parte decree was rejected on 5-4-1984, while the respondent remarried on 20-4-1984 even before the limitation for filing an appeal against the order of rejection had expired. Relying on the law laid down by the Supreme Court, by analogy, it must be held that the respondent, without waiting for the period of appeal to expire and without varying whether the appellant with intent to file appeal had applied for a certified copy of the order could not nullify her rights by remarrying hardly within 15 days of the order. Therefore, the appeal cannot be dismissed as infructuous by the alleged second marriage.
A. The next question for decision is whether the ex parte decree is liable to be set aside. As seen above, the ex parte decree was passed on 7-5-1983; where as the application under Order 9, Rule 13, C.P.C., was filed on 13-7-1983. If the summons of the suit was duly served on the appellant, the application is barred by the limitation. If the summons was not served, the limitation to file the application runs from the date of knowledge of the decree. The finding of the learned trial Court that the summons was served on the defendant is based on presumption of service under Rule 19-A of the Order 5, C.P.C., and yet, the application was not rejected on the ground of limitation, instead the application was rejected in view of bar under proviso to Rule 13 of Order 9, holding that she had notice of the date of hearing of the suit and the ex parte decree could not be set aside merely on the irregularity in the service of summons.
B. Therefore, let us examine whether the trial Court rightly invoked second proviso to Rule 13 of Order 9. The second proviso is reproduced below :
"Provided further that no court shall set aside the 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 the notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim."
The learned trial Court has not given any finding as to the date of the deemed service of summons on the defendant. The second proviso applies only to cases of irregularity in service of summons. Where there is no service of summons at all, this proviso is not attracted. Smt. Rampati Devi v. Mt. Chan-drika Devi AIR 1979 Patna 314. In order to take benefit of this proviso, the plaintiff has to show (i) that the defendant was served with the summons; (ii) the service of summons was irregular; and (iii) the defendant had the knowledge of the date of hearing of the suit. Bharulal v. Shanti Lal AIR 1985 Raj 53. In addition, the trial Court is also required to record his satisfaction that the defendant had, after the knowledge of the date of hearing, sufficient time to appear and answer the plaintiff's claim. The sufficiency of time can only be decided with reference to the date of service and the date of hearing. There is also no finding as to the dale of knowledge of hearing. Therefore no finding can be recorded whether the defendant had or had not sufficient time to appear and answer the claim. The trial Court invoked the proviso merely on his conclusion that the defendant had knowledge of the date of hearing of the suit, without examining other requirements of the proviso.
C. The next question for decision is whether the defendant was served with the summons of the suit. The defendant's case is that no summons was ever served on her. The plaintiff/respondent relied on order sheet dated 21-3-1983. On that date, service report of the summons was not received. The summonses were issued in pursuance of order dated 14-2-83, which directed payment of process for actual service as provided under Rule 10 and also service by post under Rule 19-A of Order 5, on both the addresses of Gwalior and Tikamgarh. In compliance with this order, the plaintiff paid the process on 22-2-83. One envelop under postal receipt Nos. 3976, dated 7-3-83 to Gwalior address and the other under postal receipt No. 3977, dated 7-3-1983 to Tikagarh address were despatched through registered Ack. Due post to the defendant for the next date of hearing i.e. 4-4-1983. On 4-4-1983, the summons had not returned and, therefore, the suit was adjourned to 15-4-1983 awaiting return of the summons and the acknowledgements.
16. On 15-4-1983, the learned trial Court passed an order that since the summons was sent through registered post on 7-3-1983 and the acknowledgements had not been received back even though more than 30 days had elapsed, it must be inferred that the acknowledgement was either lost or misplaced, the Court is empowered to declared under proviso to Rule 19-A(2) of Order 5 of the Code of Civil Procedure that the summons had been duly served on the defendant. Here again the approach of the learned trial Court suffers from serious infirmity in that he failed to notice in File-D that, the envelope sent on Gwalior address was received back with the remark "Addressee is not here Returned dated 19-3-1983". There is no endorsement on the envelope of the date on which it was received back in Jabalpur post office and thereafter by the Court. Therefore, the finding of the 'deemed service' can only be on her Tikamgarh address.
17. Laxminarayan Dube (N.A.W.3) stated that summons sent for actual service as also the registered envelope sent to Gwalior address were returned undelivered. These are Exs. N.A. 1 and N.A. 2. The latter envelope contains summons for her appearance on 21-3-1983. In cross-examination, he admitted that except the two registered envelopes in file 3-D and in file 3-C. Other registered letters and summons are not on record.
18. On going through the record, I do not find postal receipts of envelope Ex.N.A. 1. The process form, at page 7 of file-D, bears an order dated 7-3-83 of the trial Judge to issue summons. The form also bears notings "Process Nos. 193 and 194", without any signature of the official who wrote it. The envelope Ex.N.A. 2 contains a summons bearing process No. 232 and a copy of the plaint. There is no entry of process No. 232. The summons bearing process numbers 193 and 194 are not on record.
19. Rule 19-A requires simultaneous despatch of summons as provided in Rules 9 and 10 in addition to that sent through registered post. Therefore, on each address atleast two summons should have been issued. Since the record does not contain the summons returned unserved, it is not possible to hold that Rule 19-A was faithfully complied.
(a) Rule 19-A was inserted in Order 5 w.e.f. 1-2-1977 by Amendment Act No. 104 of 1976. In order to avoid delay in actual service, the service of summons, through registered A.D. post was inserted. Sub-rule (2) of Rule 19-A is analoguous to Section 27 of the General Clauses Act, 1897. The proof that a letter has been posted is usually evidence of its delivery under Section 16 of the Evidence Act. Similarly a notice sent by registered post returned with the endorsement 'refused' raises presumptions (i) under Section 114, illustration (f) of Evidence Act that the endorsement was made by postal peon and (ii) under Section 114 illustration (c) that official acts have been regularly performed. Sushil v. Ganesh, AIR 1958 Cal 251. The legal presumption of due service is drawn when the envelope containing the summons properly addressed prepaid and duly sent by registered post acknowledgement due is received back by the Court with an endorsement that the defendant or his agent 'refused' to take delivery of the envelop. He is imputed with the knowledge of the contents of letter by the combined effect of the presumptions arising under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. Harcharan Sinh v. Shiv Rani, AIR 1981 SC 1284.
20. The presumption is also to be drawn where the summons was properly addressed and sent by registered post acknowledgement due, notwithstanding the fact that the acknowledgement was lost, mislaid or has not been received back within thirty days from the date of issue of summons. See Ayisabeevi v. Aboobacker, AIR 1971 Ker 231, Parmesh-wari Devi v. Abrar Hussain, AIR 1971 All 22, Jagat Ram Khullar v. Battu Mal, AIR 1976 Delhi 111. Decisions like these proceed on the principle enunciated by the Judicial Committee in Harihar v. Ramsashi, ILR 46 Cal 458: (AIR 1918 PC 102) that if a letter properly directed is proved to have been posted, "it is presumed that the letter reached its destination at the proper time according to regular course of business of the post office; and was received by the person to whom it was addressed. That presumption would apply with still greater force to letters sent by registered post.
21. As mentioned above, the last endorsement of the post office on the envelope Ex.N.A. 2 is dated 19-3-1983, without a postal seal showing the date on which it was returned undelivered from Gwalior to Jabalpur or the date on which, it was received back by the Post Office, Jabalpur. There is also no endorsement on Ex. N.A. 2 of the date on which the post office, Jabalpur returned it to the sender Court. Since order-sheet of 15-4-1983 does not mention that Ex.N.A. 2 was received back undelivered, it may also be presumed that Ex. N.A. 2 was not returned to the Court till then. Now it will be seen that Ex. N.A. 2 posted on 7-3-1983 for delivery to the addressee and was returned to the sender some time after 15-4-1983 with the remarks "addressee is not here". The proviso to Sub-rule (2) of Rule 19-A of Order 5 leaves no discretion and the Court has to ipso facto declare that the summons had been duly served on the defendant on expiry of thirty days from the date of posting of the summons through registered post with A/D. It is true that the declaration is no bar to the defendant in getting the ex-parte decree set aside by pointing out the return of envelope, but this is possible only after the defendant comes to know of ex-parte decree. The untold misery which may entrap the defendant by the declaration of deemed service is beyond any ones comprehension. By the time the defendant comes to know it, the injury inflicted may be irreparable. A spouse armed with an ex parte decree of divorce, may remarry on expiry of period of appeal as prescribed Under Section 15 of Hindu Marriage Act or soon after the dissolution in cases where Section 15 of Hindu Marriage Act may not apply.
22. The declaration of deemed service under the proviso to Rule 19-A(2) may also be made in cases where the postal article, though returned to sender as undelivered, may be misplaced inadvertantly or mischievously for which there is no check.
23. The parliament over estimated the efficiency, promptness and regularity of the post office. In Ma Me Shin v. R.M. N. Chettyar Firm, AIR 1933 Rang 76, the Court declined to raise presumption of delivery, observing that it is a matter of common knowledge that the postal servants are not always diligent. In the present case also, Ex.N.A. 2 was returned much after expiry of thirty days. The proviso to Rule 19-A of Order 5, does not contain adequate safeguards against usual postal irregularities and delays so also the possible mischief that may be played by a shrewd plaintiff with active connivance or ignorance of the staff of the Court.
24. The record presents yet another illustration which may permit misuse of the proviso to declaration of deemed service.
Ex.N.A. 2 is an envelope containing summons addressed to the defendant for appearance on 27-1-1983. Its postal receipt is not on record. The postal seal of Jabalpur shows that it was despatched on 21-12-1982. It contains remarks of the Postman at Gwalior. "Addressee is not found. "The last such endorsement is dated 3-1-1983. There after the envelope was returned to the sender. After scoring out the name and address, a slip has been posed on the envelope with the writing in red-ink "Sender Jabalpur High Court", while in fact the sender was "IV Additional Judge to the Court of District Judge." On the basis of the said address, it can be assumed that the envelope must have been delivered to the High Court and the High Court must have redirected it to the Court concerned. With the present trend of snails pace at which a paper moves from one table to the other, the envelope may not reach the sender Court within one month allowed by the proviso to Rule 19-A (2).
25. In view of the foregoing discussions, the possibility of misuse of the proviso to Rule 19-A (2) can not be ruled out. The law framers ought to give a second thought to retain or amend it to safe guard the interest of the defendant and guidance of the Court before exercising the powers under the proviso to Rule 19-A(2), the courts should verify faithful compliance of all the pre-requisites. Ordinarily resort to this drastic provisions should not be made except in extreme cases.
26. The next question for decision is whether the trial Court rightly declared on 15-4-1983 that the summons was duly served on the defendant. In the absence of any finding on which address the defendant was deemed to have been served, it will be reasonable to assume that the learned trial Court declared 'due service of the summons' on the defendant on both the addresses but the declaration of deemed service on Gwalior address, is proved to be incorrect since the envelope despatched to Gwalior was returned to the court though after expiry of 30 days. The declaration of service of summons on defendant's Tikamgarh address is also found to be incorrect in view of the fact that there is not an iota of evidence to show that the defendant ever resided there on that address. Therefore, the trial Court was not right in declaring deemed service of the summons on the defendant on Tikamgarh address as well.
27. If the summons of the suit is not served, an application for setting aside the ex parte decree can be made within one month of the date of knowledge ex parte decree. The defendant states that she acquired the knowledge of the ex parte decree on 29-6-1983 at Gwalior. She filed the application on 11-7-1983. Thus it was well within the limitation.
28. The next question for decision is whether the finding of the trial Court that the defendant had knowledge of the pendency of the suit is correct. The plaintiff examined his elder brother Shri Krishna Gupta (NAW 2) and Laxminarayan Dube, the Court Reader (NAW 3). The plaintiff as NAW 1, merely narrated the informations which he allegedly received from Shri Krishna Gupta. Laxminarayan Dube the Court Reader stated that the order-sheet of the suit from 14-12-1982 to 15-4-1983 was written by him. It may be recalled that the defendant was proceeded ex parte on 15-4-1983. He stated that during pendency of the suit Smt. Simla Jain, Advocate inspected the record of the case, on behalf of the defendant, without filing her power. Smt. Simla Jain promised to file power after obtaining signature of Shri Kotecha Advocate and also because summons was not received back after service. Smt. Simla Jain came to the court on 4-4-1983 and 15-4-1983. The witness further stated that one Ramkumar Tiwari, a clerk of the Court of Shri Awasthy, also used to come and note the next date of hearing of the suit. This Tiwari also demanded that the case be lingered on since the defendant, intended not to appear at that stage. Shrikrishna Gupta stated that he was informed by Laxminarayan Dube that Smt. Simla Jain is the counsel of the defendant and she had been watching the progress of the suit.
29. From the aforesaid statements of Laxminarayan and Shrikrishna Gupta, the trial Court held that the defendant had the knowledge of the pendency of the suit through Smt. Simla Jain, her counsel. I must remarks that the trial Court committed a grave error in acting on the statement of these two witnesses. The trial Court failed to see that their statements are hear-say. The plaintiff gathered no courage to examine Smt. Simla Jain nor did the court think it necessary to examine her as a court-witness. Laxminarayan admitted that whenever inspection of the record is sought, entries are made in the respective register. He also admitted that he never asked Smt. Smila Jain to make entries in that register. Thus Laxminarayan is one of those clerks who believes more in breach rather than compliance of Rules. The imputations made by him to Smt. Simla Jain are uncharitable and baseless. It also appears that Laxminarayan Dube joined hands with the plaintiff. That is why he failed to maintain properly the summons, the postal receipts and their return etc. in the record. The possibility is not ruled out that in collusion and conspiracy with this clerk, the plaintiff may have managed to cause the disappearance of the registered envelopes and the summons returned unserved, precipitating an occasion to pass ex parte decree. At any rate, the statements of these witnesses do not inspire confidence and it must be held that the defendant had no knowledge of the pendency of the suit.
30. The appeal is allowed. The order impugned is set aside with costs in both the courts, and the ex parte decree is set aside. The suit is restored with a direction to dispose it off in accordance with law. Counel's fee Rs. 300/- if certified.