Judgment of delhi high court of 142 (2007) dlt 573

JUDGMENT

J.M. Malik, J.

1. It has to be borne in mind that all frauds, like the wall daubed with untempered mortar, with which men think to buttress up an edifice, always tend to decay of what they are devised to support. Now I turn to the facts of the instant appeal, where the wife/appellant seeks to pick a quarrel with her husband's/ respondent's securing an ex parte divorce decree against her. The respondent moved a petition for dissolution of marriage under Section 13(1)(i-a) of Hindu Marriage Act 1955 i.e. appellant had treated the petitioner with cruelty and (i-b) that the appellant had deserted the respondent for a continuous period of not less than two years, on 27.04.1989. The appellant was proceeded against ex parte on 08.11.1989. The appellant moved an application under Order 9 Rule 13 CPC for setting aside the ex parte decree, on 17.12.1993, with the principal ground that she was neither served by the summons nor with the Regd. AD cover personally. She further alleged that the respondent colluded with the postman and succeeded in obtaining the false reports of postman. On the basis of the above said false reports respondent was able to get order of substituted service and the publication was made in newspaper 'National Herald', which, too, was never served upon her.

2. This is pertinent and significant to note that during those days the maintenance proceedings under Section 125 Cr.P.C. were pending between the parties. The respondent never disclosed this fact that the proceedings of divorce were pending or he had obtained the ex parte decree of divorce. The respondent further concealed this fact when he filed a Criminal Revision Petition No. 116/1991. On 28.08.1993, when the appellant was being cross-examined in the maintenance proceedings, the above said fact was not brought into her notice. However, during the cross-examination of Darshan Kumar, brother of the appellant, conducted on 04.12.1993, a suggestion was given to the witness that the parties had divorced in the year 1989 and the divorce decree was granted by the court of Smt. Kanwal Inder the then ADJ.

3. It was explained that the appellant resides with his brother Darshan Kumar. As, he was upset, in order to avoid depression, she left the house of her brother temporarily and went to the house of her sister named Smt. Neelam Rani, resident of 7815/16, Nai Basti, Bara Hindu Rao, Delhi-110006 in the month of June 1989. She went to live with her sister for a period of eight months. She used to attend the proceedings under Section 125 Cr.P.C. from the house of her sister only. She used to visit the house of her brother off and on. She attended the proceedings under Section 125 Cr.P.C. during the year 1989 for about eight to ten occasions but the respondent never informed that he had filed the divorce petition. At the filing of this petition she was getting maintenance at the rate of Rs. 200/-. During the arguments before the court it was disclosed that she was getting maintenance in the sum of Rs. 750/-. She has got a daughter born out of the loins of the respondent.

4. The respondent listed the following defenses. The application moved by the appellant is time barred. He has already married on 16.10.1991 and has begotten two children out of second wedlock and as such the appellant is not entitled to claim any relief. The appellant had refused to accept the notice and registered AD and consequently, she was rightly proceeded against ex parte. The copy of the newspaper was sent to the appellant through UPC. The appellant resides with her brother and furnished her residential address of her brother. In her statement dated 22.07.1993, as well as in complaints dated 06.11.1990 and 10.01.1991, she gave the residential address of her brother. In her statement dated 18.09.1993 she again gave the residential address of her brother.

5. The trial court dismissed the application under Order 9 Rule 13 CPC vide order dated 11.12.2001, on the grounds enumerated by the respondent. Trial court also made the following observations. The appellant did not produce her sister in support of her case. Her brother did not mention that she stayed with her sister for eight months. However, in his cross-examination he stated that appellant lived with her elder sister from June 1989 to February 1990. The trial court found that this story is not believe worthy. Trial Court also observed that even if it is assumed that for a particular period she lived along with her sister at a different address still she had been visiting her permanent address once or twice in a month and onus of proof is upon her to show that she did not receive the summons vide ordinary process or registered covers or that the copy of the newspaper containing public notice vide UPC was not received by her. The appellant was properly served and application was barred by time. Trial Court also relied upon an authority reported in Surendra Kumar v. Kiran Devi , wherein the application by the wife for setting aside the ex parte decree of the husband, who had conducted second marriage, after four months of ex parte decree was held to be not maintainable.

6. I have heard the counsel for the parties. The learned Counsel for the respondent submitted that this is for the appellant and nobody else to carry the ball in proving that she was not served in this case. The refusal report on registered AD on two occasions and the UPC sent by the 'National Herald' to the appellant at her correct address clearly go to reveal that she was duly served. Onus to rebut the above said presumption is on the appellant. He further submitted that neither the postman nor the process server was summoned in the dock to clarify the position. Again sister of the appellant was not produced in the dock.

7. All these arguments have left no impression upon this court. The bizarre conduct of the respondent in not disclosing this fact at any stage within a span of four years is difficult to fathom. The respondent has not approached the court with clean hands. In his reply filed to the instant petition dated 04.05.1994 he clearly specifically and unequivocally stated, it is not denied that the proceedings under Section 125 Cr.P.C. was pending and even in those proceedings the petitioner informed the respondent personally. The petitioner also informed about the grant of ex parte decree but on hearing this the respondent threatened petitioner with dire consequences. However, in his statement recorded as AW1 on 05.12.2000 the respondent admitted,

I had not mentioned in any proceedings from the court of MM till High Court that the ex parte decree had been granted in my favor. I do not remember whether I have sent a notice to the respondent through my advocate Sh. Raj K. Mittal. The original notice dated 03.01.1991 signed by Sh. Raj K. Mittal, Advocate is shown to the respondent by the learned Counsel. He states that he does not remember whether this notice was got sent by him.

8. The appellant has produced on record notice dated 03.01.1991 which is on the letter pad of Mittal & Mittal Company signed by Sh. Raj. K. Mittal, Advocate on behalf of the appellant. The relevant portion of the notice runs as follows:

1. That you have been a legally wedded wife of our client. You have failed to discharge your matrimonial obligations and deserted our client without any reasons whatsoever. A case for maintenance has been filed in the court of law which is pending between you and our client.

2. That you have started causing torture to our client by making false and wild allegations against him by writing letters to his employer and also visiting his office. In those complaints you have made false accusations against our client with the malafide intention to disrepute him in the eyes of his employer and his colleagues. Your allegations and imputations made in those complaints are with a view to injure the reputation of our client. You have got no such right in law to make allegations without their being any foundation and your making allegations, writing false complaints have disreputed our client and have injured our client reputation in his office and in the public at large. You have thus liable to be prosecuted under Section 500 and other sections for committing offences under Indian Penal Code and therefore we hereby serve you with this notice calling upon you to tender your unqualified apology within seven days of the receipt of this notice failing which our client will take action against by filing a criminal complaint before MM and you will be held liable for all costs and consequences resulting there from which please note.

You have been also writing letter through your counsel seeking information from the employer of our client and such writing is illegal and your counsel has no right to take such information from the employer of our client when the court case is pending which please note. You are further directed to desist from writing such frivolous complaints and seeking any information concerning our client from his employer otherwise necessary action will be taken against you which please note.

9. The said notice was replied by the appellant. The copy of the notice sent through Sh. P.L. Bahl dated 02.09.1991 has been placed on the record. This was sent through Regd. post. Respondent himself admitted that Regd. AD card Ex. RW1/DA bears his signature at point A.

10. The above said notice has got infinite importance. This is the clincher which puts the case of the appellant in an impregnable position. This is surprising to note that there is no mention, whisper or a syllable about the above said divorce. The fact of divorce was suppressed in the said notice itself. Secrecy is the badge of fraud. It is very easy to cull out the malafide intention of the appellant from this notice. It clearly means that the appellant had got the above said reports procured. The facts of this case speak for themselves. It is crystal clear that the respondent holds with the hare and hunts with the hound. He hews and haws and comes out on both sides of question.

11. Again, in his statement recorded on 05.12.2000 before the court of Additional District Judge, the respondent admitted that he had filed a revision petition in the High Court against the order of Sessions Court. He admitted that he had filed the revision petition about two years of passing the ex parte decree. He admitted that he had not mentioned regarding the decree of divorce in his revision petition in the High Court. I find considerable force in the contention of the learned Counsel for the appellant that Form F of Delhi High Court Rules was not filled in by the appellant which at para 10 clearly requires the appellant to mention the status of husband and wife firstly before marriage and secondly at the time of filing of the petition. The silence on the part of the respondent is pernicious. It is well known that where secrecy or mystery begins, vice or roguery is not for off.

12. The order sheets of the original file also deserve a look. The case was filed on 01.05.1989. It was ordered that respondent be served vide process fee and Regd. AD for 06.07.1989. The report of process server reveals that process server did not identify the appellant and she was identified by the respondent himself. In next date's report appellant was identified by a witness. The Regd. AD mentions only one word refused. It does not state that it was tendered to whom and who had refused to accept the notice. The case was adjourned to 08.09.1989. It was recorded that respondent had refused to take the notice. Only one word, Refused appears on this registered envelope as well. On 08.09.1989 itself it was reported that respondent had refused notice and permission was sought to move an application under Order 5 Rule 20 of C.P.C. On 08.09.1989, application under Section 5 Rule 20 CPC was moved and it was ordered that the appellant be served through 'National Herald'. The presumption of law if any stands rebutted by the statement made by the appellant because she has stated that she was staying in the said house of her brother for a period of eight months. The version given by her stands supported by the statement made by her brother.

13. In Mukesh Kumar Richariya v. Smt. Madhu Richariya II (2001) DMC 187 it was held:

9. In the absence of the service of summons on the respondent / wife, the ex parte proceedings clearly could not be sustained, and they had to be set aside. Valuable right of a party cannot be adversely affected without giving him due opportunity of hearing. In view of the above, the learned Trial Court was justified in ordering setting aside of ex parte judgment and decree, notwithstanding the remarriage of the petitioner/ husband.

14. In Swarn Singh Bhindra v. Surinder Kaur 1979(16) DLT 32, it was held:

It is well established that the presumption of fact under Section 114 of the Evidence Act, as indeed the presumption of law under Section 27 of the General Clauses Act, are not inrebuttable but, on the contrary, are rebuttable. Neither Section 114 of the Evidence Act nor Section 27 of the General Clauses Act provide that the two presumptions are conclusive. The presumption which is raised in the sections only dispenses with the need of evidence being led of the Postman of its actual tender and refusal by the addressee. This rebuttable presumption could be dislodged in by leading cogent and convincing evidence. The best evidence would be the evidence of the addressee who may come forward and depose that at the relevant time the addressee was not available at the given address or the registered letter was never tendered to the addressee and refused Circumstantial evidence may also be produced to show that the registered letter was never intended to be delivered to the addressee. The evidence of the concerned Postman is not the only evidence to rebut the presumption. The wife had to establish that she was not duly served. It is undisputable that the onus to prove that she was not served lies heavily on her. The onus was being discharged by her by establishing on the record that at the relevant time, she was not in the village but was residing at Ambala and the husband know of her address and place of residence. She may have rightly thought that the evidence of the Postman as her own witness would not be helpful as she could have no opportunity to cross-examine the Postman to establish that he gave a false and fictitious report. She, therefore, thought of relying on the circumstantial evidence as well as her own testimony to establish that she was not duly served. The trial court believed the evidence of the wife given on oath as well as the circumstance brought on the record and returned a finding that she was not duly served.

15. The Hon'ble Supreme Court in case reported in 1994 Raj. LR SC-102 has observed:

Unscrupulous persons are abusing court-process using it as a lever to retain illegal gains. A person whose case is based on false-hood can be summarily thrown out at any stage of litigation. Rules cannot be reduced to absurdity to become engine of fraud by dishonest litigants.

16. In Sadan Kumar Chaurasia v. Indira Bai Sadan Kumar 1997(1) MPLJ 124, it was held:

12. As observed above, if the principles underlying Section 15 are to be extended to an application for special leave petition to the Supreme Court, then certainly the principles underlying Section 15 would be applicable to an application filed under Order 9, Rule 13, Civil Procedure Code. Merely remarrying after the period prescribed under Section 15, the second spouse would not be permitted to say that the application filed under Order 9, Rule 13, Civil Procedure Code had become infructuous. In fact, it would be adding premium to the act of the person who secured the ex parte decree. It would otherwise be against the public policy that a person who secured the benefit under an ex parte decree is permitted to continue with the benefit of the ex parte decree if the Court is of the opinion that under the circumstances the ex parte decree can be set aside.

13. Learned trial court, in my opinion, was absolutely wrong in holding that because the wife had remarried and has given birth to a child from the second marriage, the application filed under Order 9, Rule 13, had become infructuous. The appeal deserves to be allowed.

17. In Jaspal Kaur v. Manjit Singh MP-2006-203, Misc. Appeal No. 471 of 2003 decided on 10.02.2006 by High Court of Madhya Pradesh, it was held:

10. Apart from this the conduct of the respondent shows that at number of occasions the respondent was supposed to disclose the fact that he has ex parte decree of divorce in his favor but this fact was never disclosed by him. Not only this, respondent has also mentioned that he lived with the appellant w.e.f. 13.4.1989 to 17.10.1989 at Udaipur i.e., after the ex parte decree dated 19.7.1988.

It was further held:

11. Since the application was filed by the appellant under Order 9, Rule 13 CPC on 21.12.1999 while appellant got the knowledge of ex parte decree on 25.11.1999, the learned trial court committed error in dismissing the application filed by the appellant by the impugned order on the ground of limitation. This court has no hesitation in observing that looking to the conduct of the respondent after the ex parte decree there was no occasion for the appellant to gather the knowledge of alleged ex parte decree.

18. In Durga Devi v. Rajendra Singh (1994) II DMC 428, it was held:

13. The provisions under Order 9 Rule 13 of the Code are required to be construed liberally. After all, why the wife, confronted with divorce proceedings, would opt to remain absent and chose to suffer decree of divorce on default? The provisions of Order 9 of the Code are not penal in nature. Normally, the parties should be deprived of the opportunity of hearing only in case of gross negligence and mis-conduct. Both the parties should be given full opportunity to place their respective case and evidence before the Court. The rule of procedure should not be too strictly applied to deny justice to the party, more so, in matrimonial matters, which involve the question of dissolution of marriage by decree of divorce, unless the Court was satisfied that the party had motive for non-appearance and that the absence was deliberate to achieve that object. The decision reported in 1980 MPWN(2) 68 (Kusum Vaishya v. Ravindra Vaishya) is pertinent.

19. 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. Justice can be best done if both the parties are given a fair chance of being heard.

20. In the light of this discussion, I accept the appeal, allow application under Section 9 Rule 13 CPC, wherein the ex parte decree passed against the appellant is set aside with costs. Advocate fees is fixed at Rs. 20,000/- to be paid by the respondent through cheque in the name of the appellant before the lower court on the date to be fixed hereinwith. Parties are directed to appear before the trial court on 16th August, 2007. A copy of this judgment along with LCR be sent to the trial court forthwith. Registry to file acknowledgment memo regarding the compliance of this order with this court forthwith.