Madras High Court
Unknown vs Dated: 20.02.2012 on 20 February, 2012
Author: V.Periya Karuppiah
Bench: V.Periya Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.02.2012 CORAM THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH A.No.6319 of 2009 and A.No.5012 of 2008 in O.M.S.No.37 of 1996 ORDER
A.No.6319 of 2009: This application is filed seeking to set aside the order dated 29.04.1997 passed in O.M.S.No.37 of 1996.
2. A.No.5012 of 2008: This application is filed to set aside the exparte decree dated 08.12.1998 passed in O.M.S.No.37 of 1996.
3. Heard, Ms.K.Kuilmozhi, learned counsel for the applicant and Mr.S.M.Loganathan, learned counsel appearing on behalf of Mr.S.Pugalendhi, learned counsel for the respondent in both the applications.
4. The learned counsel for the applicant would submit in his argument that the applicant is the wife and she had filed these two applications seeking to set aside the order passed by this Court in O.M.S.No.37 of 1996, dated 29.04.1997 (i.e.) a petition filed by her husband seeking for divorce on frivolous grounds, in passing an exparte decree of Rule NISI and exparte decree passed in the said O.M.S.No.37 of 1996 on 08.12.1998. She would further submit in his argument that the applicant was actually living with the respondent/husband but, without the knowledge of the applicant, the respondent/husband clandestinely filed this divorce petition in O.M.S.No.37 of 1996 and a summon was served upon the respondent on 31.01.1997 and when it was shown to the respondent/ husband on 01.02.1997, he had replied that both of them need not go to Court and advised her to tear the summons and he would withdraw the petition and there was nothing to worry about the summons. She would also submit that the applicant relied upon the words of her husband as a truthful wife and kept quiet and thereafter, the applicant had also lived with him as husband and wife and attended so many social functions and she also became pregnant during the said period. She would further submit that the applicant was shocked to receive another notice on 17.07.1998, from the respondent's counsel about the pendency of the case in O.M.S.No.37 of 1996. She would also submit that only on receipt of the said notice, she became aware of the preliminary decree passed on 29.04.1997. She would further submit that the applicant could not appear before the Court and it was only due to the above said reason and immediately she had contacted her counsel and filed this present application to set aside the exparte preliminary decree of Rule NISI. She would also submit in her argument that the delay of 448 days in filing the application to set aside the exparte decree was also allowed and therefore, the present application may also be ordered. She would further submit in her argument that despite the filing of the application in A.No.6319 of 2009 on 19.08.1998, and on the dismissal of an application in A.No.3063 of 1998 to condone the delay of 448 days in filing to set aside the order dated 29.04.1997 an order has been passed, confirming the exparte preliminary decree on 08.12.1998. She would also submit that the applicant had filed an appeal against the order of dismissal of the application in A.No.3063 of 1998 dated 24.11.1998 in O.S.A.No.271 of 1999 and the Hon'ble Division Bench had accepted the reasons submitted by the applicants and condoned the delay of 448 days in A.No.3063 of 1998 and consequently, the said application in A.No.3063 of 1998 was allowed since the appeal in O.S.A.No.271 of 1999 was allowed. He would further submit that the respondent/husband had taken the matter before Hon'ble Supreme Court in S.L.P.Nos.12356 and 12357 of 2000 questioning the order passed by the Hon'ble Division Bench of this Court in O.S.A.No.271 of 1999 and the said S.L.P.Nos.12356 and 12357 of 2000 questioning the order passed in O.S.A.No.271 of 1999 and the said S.L.Ps were dismissed on 27.07.2001, confirming the order passed by this Court in O.S.A.No.271 of 1999. Similarly, the delay caused in filing the application to set aside the exparte decree confirming the exparte preliminary decree of Rule NISI in A.No.3554 of 2000 was also allowed by this Court, in its order dated 07.11.2001. He would further submit that the reasons put-forth by the applicant in the applications to condone the delay of 448 days in filing the application to set aside the exparte preliminary decree under Rule NISI dated 29.04.1997 in A.No.3063 of 1998 and the application filed to condone the delay of 101 days in filing the application to set aside the exparte final decree passed on 08.12.1998 in A.No.3554 of 2000 were allowed and the reasons were accepted upto Supreme Court as per order made in S.L.P.Nos.12356 and 12357 of 2000 dated 27.07.2001 and the same reasons have been put-forth in these applications also and therefore, the applicant/ wife may be given an opportunity to contest the O.M.S and to state her case to defend the main O.P. She would further submit that the respondent/ husband would not in any way be prejudiced for setting aside the exparte preliminary decree under Rule NISI dated 29.04.1997 and the exparte order confirming exparte preliminary decree dated 08.12.1998. Therefore, he would request the Court that both the applications may be allowed.
5. The learned counsel for the respondent would submit in his argument that the reasons stated by the applicant are not true. He would also submit that the respondent did not advise the petitioner to tear the summons on 01.02.1997. He would further submit that the applicant had voluntarily let the case go for exparte in order to harass the respondent. He would further submit that the applicant did not live with the respondent nor attended the social functions. He would also submit that she was not pregnant owing to such co-habitation and there was no conjugal relationship between him and her after 31.08.1992. He would further submit in his argument that an application in O.M.S.No.20 of 1993 was filed for judicial separation but, however, the same was dismissed and even thereafter, the applicant was living separately. He would also submit that the applicant having admitted the receipt of the summons on 31.01.1997, should have been diligent in defending the case and the reasons stated by her is a cock and bull story, which cannot be believed. He would further submit that the reasons submitted for setting aside the exparte decree under Rule NISI dated 29.04.1997 as well as final decree dated 08.12.1998 may not be set aside as the reasons submitted are not good reasons to set aside such decrees of the Court. He would also submit in his argument that the confirmation of the decree, even though exparte, cannot be set aside under Order 9 Rule 13 CPC and it could be only set aside by way of appeal. Apart from that, the affidavit has been filed in A.No.5012 of 1999 by the counsel but it should be filed by the parties concerned under Order 19 Rule 3 CPC and Order 27 Rule 1 of O.S. Rules. He would further submit that the applicant did not file any affidavit in A.No.5012 of 1999 and on that aspect also, the application has to be dismissed. Therefore, he would request the Court to dismiss both the applications.
6. I have given anxious thoughts to the arguments advanced on either side.
7. It is an admitted fact that the applicant is the wife and the respondent is the husband. The respondent has filed the main O.P. in O.M.S.No.37 of 1996, seeking for divorce under Indian Divorce Act, and due to the absence of the wife in that proceedings, an exparte preliminary decree of Rule NISI has been passed on 29.04.1997. The ground for divorce has been elaborately mentioned in main O.P. The respondent has filed an application to set aside the exparte preliminary decree of Rule NISI dated 29.04.1997 and there was delay caused in filing the said application and therefore, she filed an application to condone the delay of 448 days in filing such application. The said application was seriously contested by the respondent/ husband and the same was dismissed by this Court on 24.11.1998, consequently, the un-numbered application to set aside the exparte preliminary decree of Rule NISI dated 29.04.1997 was rejected by this Court. The applicant/ wife took it on appeal before the Bench in O.S.A.No.271 of 1999 and after hearing both sides, the Hon'ble Bench has passed an order of setting aside the dismissal of the application to condone the delay of 448 days in A.No.3063 of 1998 and thus, allowed the said petition. Consequently, the application to set aside the exparte preliminary decree of Rule NISI dated 29.04.1997 was ordered to be numbered. However, it was taken by the respondent/ husband to Supreme Court in S.L.P.No.12356 and 12357 of 2000, in which, the Honourable Supreme Court had refused to interfere with the orders passed by the Court, in O.S.A.No.271 of 1999 and also directed the respondent/ husband to pay Rs.25,000/- to the applicant/ wife. In the meantime, during the pendency of the appeal, a final decree confirming the exparte preliminary decree of Rule NISI dated 29.04.1997, was passed exparte by this Court in O.M.S.No.37 of 1996, on 08.12.1998. The applicant/ wife had also filed an application to set aside the exparte final decree passed on 08.12.1998 with an application to condone the delay of 101 days in A.No.3554 of 2000 and this Court had allowed the said application to condone the delay on 07.11.2001. There was no appeal preferred against the said order and it has also become final. Therefore, the applications filed by the applicant/ wife to condone the delay of 448 days in A.No.3063 of 1998 was allowed and the application to condone the delay of 101 days in filing the application to set aside the exparte final decree dated 08.12.1998, was also allowed by this Court and both the orders have become final. The reasons stated by the applicant/ wife in both the applications to condone the delay in A.No.3063 of 1998 and in A.No.3554 of 2000 have been stated in these applications, to set aside the exparte preliminary decree under Rule NISI dated 29.04.1997 and the exparte final decree passed on 08.12.1998. The Hon'ble Division Bench in its order dated 16.12.1999 had accepted the reasons for condoning the delay in its order which is laid down as follows:-
"As observed by Their Lordships of the Supreme Court in Balakrishnan v. Krishnamurthy (1998 (II) CTC 533) (page 35 of the typed set of papers) in order to defend substantial justice and in the light of the seriousness of the matter as seen from the various specific averments of the wife in her affidavit which has to be considered in the full fledged trial, we are satisfied that the appellant wife may be given an opportunity to contest the suit filed by the husband under Section 10 of the Indian Divorce Act. By doing so, we are not causing any hardship or inconvenience to the husband since having filed the petition for divorce, he has to establish the same by placing acceptable evidence."
8. The above order of the Hon'ble Division Bench was confirmed by the Hon'ble Supreme Court in the order passed in S.L.P.Nos.12356 and 12357 of 2000 dated 27.07.2011. Therefore, the delay was condoned for the purpose of giving an opportunity to the applicant/respondent in the main O.P to defend her case. The same reasons have been put-forth in the application in A.No.6319 of 2009 and therefore, such reasons to set aside exparte decree is liable to be accepted. Further, there could not be any prejudice or inconvenience caused to the husband, if an opportunity is given to the wife to contest the main O.M.S. Therefore, the exparte preliminary decree of Rule NISI has to be set aside in order to give an opportunity to defend the case. The contentions raised by the learned counsel for the respondent/ husband that the affidavit filed by the junior counsel would not satisfy the requirements of Order 19 Rule 3 CPC, cannot be accepted since it is only an irregularity and on the exparte preliminary decree of Rule NISI has been set aside the consequently passed exparte final decree on the foot of the exparte preliminary decree is also liable to be set aside. It is an admitted fact that the exparte final decree dated 08.12.1998, was passed during the pendency of the appeal in O.S.A.No.271 of 1999 before the Hon'ble Division Bench. Therefore, the said order is subjudice to the decision of the Hon'ble Division Bench. Therefore, I am of the considered opinion that the applicant / wife has to be given an opportunity to contest the case filed by her husband under Section 10 of the Indian Divorce Act in the main O.M.S.No.37 of 1996. Therefore, the impugned order passed on 29.04.1997, in granting an order of exparte preliminary decree of Rule NISI and the consequent final exparte decree passed on 08.12.1998, based on the exparte preliminary decree passed by this Court, are liable to be set aside and both the applications filed by the applicant/ wife are liable to be allowed.
9. In fine, both the applications filed in A.No.6319 of 2009, seeking to set aside the order dated 29.04.1997 passed in O.M.S.No.37 of 1996 and A.No.5012 of 2008, to set aside the exparte decree dated 08.12.1998 passed in O.M.S.No.37 of 1996, are allowed. No costs.
ssn