Archana v. Avanish

1. This first appeal is filed under Order 43(1)(d) of Code of Civil Procedure, 1908 (CPC) against the impugned order of the trial court dated 22.2.2011 by which trial court dismissed the application under Order 9 Rule 13 CPC of the present appellant (respondent in the petition for judicial separation in the court below). The effect of dismissal of the application under Order 9 Rule 13 CPC is that the exparte decree of a judicial separation dated 3.2.2005 will stand. I may note that there is pending a second petition for divorce on the ground that appellant herein has not complied with the 2014:DHC:3316 decree of divorce and that petition is being contested on merits and nothing is observed herein with respect to the merits of the matter in the second petition for divorce.

2. The case of the appellant herein was that she was never served in the petition for judicial separation inasmuch as the appellant had shifted from the Mumbai address where she was living i.e flat No.604-D, Dheeraj Regency, Borivali (East), Mumbai. It is argued that the flat in question in Mumbai was let out w.e.f 1.5.2004 and the appellant had shifted to Bangalore. It is argued that consequently no summons were ever received by the appellant in the judicial separation proceedings being petition No.257/2004 (registered as HMA No.974/2009 in the Court at Delhi after transfer from the Court at Haridwar).

3. A reading of the impugned order shows the following:-

(i) Though the appellant claimed that she had shifted to Bangalore, neither there are necessary averments with respect to the address at Bangalore and nor averments as to how and why the appellant herein had shifted to Bangalore.

(ii) The case of the appellant was that the premises were let out to the tenant at Mumbai and she had shifted to Bangalore, and if that was so, appellant was required in the least to give the address at Bangalore which has admittedly not been done. To this I would like to add that not only the address at Bangalore had not been filed, but also averments as to why did the appellant shifted to Bangalore is not mentioned. Not only the appellant has not given her residential address at Bangalore, surely if the appellant would have shifted to Bangalore; she would have shifted to take some employment inasmuch as the appellant is having the qualification of B.Ed., however, no details are furnished as to what is the name of the employer and what was the address of the employer at Bangalore.

4. Therefore, the court below in my opinion, has rightly come to a conclusion that the case of the appellant not living at Mumbai address and having shifted to Bangalore is quite clearly not believable.

5. Another conclusion of the court below, and with which I completely agree, is that once the appellant was not served in the suit by the ordinary method and was served my means of publication in a newspaper, the case as put up by the appellant of how she came to know of the judicial separation proceedings, had to have credibility. In this regard, trial court notes that there is no credibility inasmuch as the appellant has not given sufficient detailed facts as to how, when and in what circumstances she came to know about the pending proceedings for judicial separation inasmuch as all that is stated is that through some relative the appellant on 1.4.2006 came to know of the divorce proceedings. This aspect of knowledge through a relative was also not stated initially but was brought in pursuant to an amendment which was allowed in the application under Order 6 Rule 17 CPC filed after two years and two months of filing the application under Order 9 Rule 13 CPC. Therefore, the court below has held that the stand of the appellant is not believable with respect to how she came to know of the exparte decree of judicial separation.

6. At this stage, I would like to refer to the second proviso to Order 9 Rule 13 CPC which was brought in by Act 104 of 1976 w.e.f 1.2.1977. The object of bringing in this proviso was that where court finds and is satisfied that a defendant in a case is watching the proceedings although the defendant has not been formally served by accepting of summons, then, in such a case court need not set aside the exparte decree. This second proviso of Order 9 Rule 13 CPC reads as under:- “Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the Court is satisfied that the defendant knew, or but for his willful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff’s claim.”

7. Learned counsel for the appellant sought to argue with respect to some defect in the newspaper publication or the aspect that newspaper publication was not sent to the appellant, however in my opinion, these arguments are covered against the appellant in view of second proviso to Order 9 Rule 13 CPC which has been brought in by Act 104 of 1976.

8. There is hence no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs. JULY 17, 2014 VALMIKI J. MEHTA, J. Ne