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S.P. Srivastava Vs. Smt. Prem Lata Srivastava - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 3231 of 1977
Judge
Reported inAIR1980All336
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 5, Rule 17 - Order 9, Rule 13; Hindu Marriage Act, 1955 - Sections 13 and 15
AppellantS.P. Srivastava
RespondentSmt. Prem Lata Srivastava
Appellant AdvocateV.B. Khare, Adv.
Respondent AdvocateS.P. Srivastava, Adv.
DispositionRevision allowed
Excerpt:
.....of second wife - deficiency in service of summons - not entitled the defendant to have the ex-parte decree set-aside. (ii) revision - service of summons - section 115 code of civil procedure, 1908 - finding of fact based on non-consideration of material evidence - irregularity - revision maintainable. - - the applicant must satisfy the court with cogent and reliable evidence, the reasons which prevented him or her from making the application within time. bhakt sajjan air1978all139 ,the division bench was considering whether the non-affixation of the summons on the outer door of the house of the defendant was mere irregularity or illegality- in this context, the division bench considered the provisions of the of proviso added by the allahabad high court to order 9, rule 13 of the..........made an application under order 9, rule 13 of the code of civil procedure for setting aside the ex parte decree claiming that she came to know only on the 15th april, 1976 about the ex parte decree. she also moved an application for temporary injunction on the 15th april, 1976 restraining the husband from marrying again. this injunction order was served on the 16th april, 1976. the husband had contracted a second marriage with one pratima devi on the 14th april, 1976. the trial court by its order dated 22nd december, 1977 set aside the ex parte decree. the husband has come up in revision against the above order.2. in her application for setting aside the ex parte decree, the wife alleged that on the 13th april, 1976 she came to know that the husband was making preparation for his.....
Judgment:
ORDER

A. Banerji, J.

1. This civil revision has been filed by the plaintiff, hereinafter referred to as the husband. He had filed a suit for divorce under Section 13 of the Hindu Marriage Act, hereinafter referred to as the Act. The suit was decreed ex parte on the 2nd June, 1973. On the 15th April, 1976 Smt. Prem Lata Srivastava, hereinafter refrred to as the wife, made an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree claiming that she came to Know only on the 15th April, 1976 about the ex parte decree. She also moved an application for temporary injunction on the 15th April, 1976 restraining the husband from marrying again. This injunction order was served on the 16th April, 1976. The husband had contracted a second marriage with one Pratima Devi on the 14th April, 1976. The trial court by its order dated 22nd December, 1977 set aside the ex parte decree. The husband has come up in revision against the above order.

2. In her application for setting aside the ex parte decree, the wife alleged that on the 13th April, 1976 she came to know that the husband was making preparation for his marriage at some other place. She then went to his house the next day where she came to know that the marital relations between her and the husband had been dissolved by a decree of the court about three years back. The papers were inspected on the 15th April, 1976 and she came to know that the summons of the divorce petition had been got served on her in collusion with the process server. It was also alleged that the summons was issued at the address of Mohalla Vindra-sini Nagar, Gorakhpur, and the witnesses who had attested the refusal of the summons were not residents of locality. On this basis she claimed for setting aside the ex parte decree.

3. The husband contested the application inter alia on the following grounds.She had knowledge of the divorce proceedings and the ex parte decree. The summons was served by refusal and had been attested by the witnesses of the locality. She had knowledge of the entire proceedings and never came to his house on the 14th April, 1976. The application had been made only after he had remarried and for the purpose of harassing him.

4. The court below examined both the husband and the process server as also one witness Pauhari Saran and the wife. The court held that there was no service of summons as contemplated under Order 5, Rule 17 of the Code, for after the refusal the summons should have been pasted on the outer door of the house. The court held that since this was not done, there was in effect no service of summons on the wife as required by law and, consequently, it could not be said that she had Knowledge of the proceedings. The court also did not rely on the evidence regarding the refusal of service for two reasons: Firstly, the court held that it was for the husband to prove by positive affirmative evidence that in fact the wife refused to accept the summons. The affirmative evidence produced by the husband was held not worthy of credence. Secondly, the husband himself had not corroborated the fact of the refusal of summons by the wife. The court relied on the version of the wife to hold that she came to know of the ex parte decree only on the 15th April, 1976.

5. Mr. V. B. Khare, learned counsel for the applicant raised four contentions: Firstly, the court below committed a material irregularity in exercise of its jurisdiction in setting aside the ex parte decree when the wife had knowledge of the suit. Secondly, the court below committed material irregularity in exercise of jurisdiction by holding that the plaintiff had not led positive affirmative evidence to prove the refusal of the summons by the wife. Undue emphasis was laid by the court below on the husband's not corroborating the version of the witnesses of refusal of summons by the wife. Thirdly, the non-compliance of the provisions of Order 5, Rule 17 of the Code was at the most an irregularity and could not lead to the conclusion that there was no service because the process server had not pasted the notice on the outer door of the house and, lastly, the court below committed material irregularity in exercise of jurisdiction in not considering the fact that the application for setting aside the ex parte decree was made long after the passing of the decree and after the remarriage of thehusband. I have also heard Mr. S. P. Sri-vastava, learned counsel for the opposite party, wife. He has contended that there is no error in the exercise of jurisdiction in the order passed by the court below on the finding that the wife had knowledge of the ex parte decree only on the 15th April, 1976. The court below was justified in setting aside the ex parte decree. Learned counsel for the parties referred to a number of decisions. I shall refer to them as and when necessary.

6. The first point raises a question offact. When did the wife first come to know of the ex parte decree? She stated that she came to know of the ex parte decree on the 15th April, 1976 after inspection of the relevant papers. On the 13th April, 1976 she had come to know of a proceeding of divorce instituted by the husband. The ex parte decree was passed on the 2nd June, 1973. Her knowledge was, therefore after 34 months. It is obvious that she was not living with the husband during this period. The question whether she had knowledge of the suit would not depend on what she stated, for her statement remained wholly uncorroborated. On the question whether there was a service of the summons of the the suit on her, there was a bare denial. The positive evidence that could be led in the case had been led by the husband. Firstly, the process server was examined and also a witness of the service. The process server had been disbelieved for the following reasons; The process server is said to nave served the summons on the 22nd April, 1973. It was a Sunday. It was stated by the process server that the husband had come to the Nazarat to enquire as to who would be taking the summons to the opposite party. The court below opined that it was amazing that the office of Nazarat would remain open on a Sunday. The court below also relied on the circumstance that there was no compliance with the Order 5, Rule 17 by the process server, inasmuch as the summons had not been pasted on the outer door of the house. Thus, the court below came to the conclusion that there was no service of the summons on the wife. The finding of the court below that she came to know of the ex parte decree only on the 15th April, 1976 was based on no other consideration than believing her. She had also to lead sufficient evidence to show that she had no knowledge whatsoever of the ex parte decree. It is a relevant circumstance to be considered when the application for settingaside the ex parte decree was being moved after 34 months. What was she doing all this time? If there was a separation and she was not living with her husband, what prompted her to visit her husband's place on the 14th April, 1976. In any event, there is neither any consideration nor any finding as to whether she had visited her husband's place on the 14th April, 1976. If she did not visit her husband's place on the 14th April, 1976, what made her to see the record on the 15th April, 1976? The court below has not considered any of these matters and has set aside the ex parte decree without considering the relevant and material circumstance. An ex parte decree is not to be set aside lightly. The wife seeking to set aside the ex parte decree has got to prove to the entire satisfaction of the court that the summons or notice was never served on her and secondly that she got the knowledge of the suit or proceeding on a particular date. The burden is still more heavy when the application for setting aside the ex parte decree is made after the period of limitation provided for moving the said application. The applicant must satisfy the court with cogent and reliable evidence, the reasons which prevented him or her from making the application within time.

7. Great emphasis has been laid by the court below on the non-compliance of Order 5, Rule 17 of the Code. Reliance was placed on the decision of the learned single Judge in the case of Mohan Dhobi v. Smt. Kastoori Devi (1975 All LR 625 : (1976 All LJ 174)). In that case the relevant facts were as follows:--

'According to this report the process server reported that Mohan Lal appellant met him and the latter took up the summons and copy of the plaint but refused to sign the counter part of the summons. The above report is no service in law. Either the appellant had to be served personally or if the appellant refused to sign the acknowledgment then under Order V Rule 17 the proper course on the part of the process server was to affix a copy of the summons on the outer door or on some conspicuous part of the house in which the plaintiff appellant originally resided or carried on business. This was not done.'

In the above case it was also stated that the process server had served the summons in presence of the witnesses, but the tenant had neither produced the process server nor any of the witnesses. The court held that there was no service at all. The facts of the above case make it distinguishable. In the present case, the processserver and one more witness had been examined. The court below has not referred to the evidence of the witness at all 35 noticed earlier.

8. In a recent decision of a Division Bench of this Court in the case of Raghubir Sahai Bhatnagar v. Bhakt Sajjan : AIR1978All139 , the Division Bench was considering whether the non-affixation of the summons on the outer door of the house of the defendant was mere irregularity or illegality- In this context, the Division Bench considered the provisions of the of proviso added by the Allahabad High Court to Order 9, Rule 13 of the Code, which lays down that an ex parte decree cannot be set aside on account of any irregularity in the service of summons if the court is satisfied that the defendant had knowledge. The case of Mohan Dhobi v. Smt. Kastoori Devi (supra) was also considered by the Division Bench and distinguished on the ground that the appellant in that case had not led positive affirmative evidence either by producing the process server or witnesses that the defendant had refused to accept the notice and the summons. Reference was also made to the single Judge decision in the case of Nathu Ram v. Salim Abdul Karim : AIR1933All165 , where Iqbal Ahmad, J. held that failure to effect service by affixation of a copy of the summons on the door of the defendant's residence was a mere irregularity in the service of summons and simply because of the irregularity the defendant was not entitled to have the ex parte decree set aside. Reference may also be made to the case of Cora Lillian Mc Pherson v. Oran Leo Me Pherson (AIR 1936 PC 246), where the rule of pasting in divorce suit was not followed. The question before the Court was whether the proceeding because of the irregularity was void or not. The Court answered the question by saying, 'To say that such a decree is void would seem to be out of the question. If the law were so to treat it, the remedy would be far worse than the disease it was designed to cure. To say that it is voidable states a result which their Lordships think entirely meets the case.' It may be mentioned here that the decree was passed upon a trial. Privy Council also observed that there was a right of intervention but that had to be made before the time for appeal had expired or before the rights of third party had intervened.

9. In the case of Olive French Marsh v. Norman Leslie Fitz Morris Marsh (AIR 1945 PC 188), a question was posed before their Lordships as to what irregularities will render a judgment or order void or only voidable. After referring to some cases their Lordships said, 'The practical difference between the two is that if the order is void the party whom it purports to affect can ignore it, and he who has obtained it will proceed thereon at his peril, while if it be voidable only the party affected must get it set aside. No Court has ever attempted to lay down a decisive test for distinguishing between the two classes of irregularities, nor will their Lordships attempt to do so here, beyond saying that one test that may be applied is to inquire whether the irregularly has caused a failure of natural justice.'

10. Learned counsel contended that once a decree for divorce has been passed under Section 13 of the Hindu Marriage Act, there is a right of appeal. The usual period of time for filing an appeal together with the provision of Section 12 of the Limitation Act is available. Section 15 puts a bar to a person's remarrying within the period provided for the filing of an appeal or within the period where an appeal has been filed and until its disposal. There is no bar if there is no right of appeal and also there is no bar when the period has expired and the appeal has not been filed or after the appeal has been disposed of. There was a proviso to Sec. 15 which specified that it shall not be lawful for any party to marry again, unless on the date of such marriage at least one year had elapsed from the date of the decree in the Court of the first instance. This proviso has now been deleted in 1976. The proviso was there when the decree was passed in 1973. Admittedly, no re-marriage took place within one year of that period.

11. Section 15 of the Hindu Marriage Act came for interpretation in a recent decision of their Lordships of the Supreme Court, in the case of Smt. Lila Gupta v. Laxmi Narain : [1978]3SCR922 . Their Lordships held that a marriage contracted in contravention of proviso to Section 15 was not void, but merely invalid not affecting the core of marriage and the parties are subject to a binding tie of wedlock flowing From the marriage. Their Lordships further held that the marriage even though in contravention of the provisions of Section 15 is not void. Applying the principles laid down in the above case to the facts of the present case, the second marriage contracted by the husband cannot be said to be void. In the instant case, no appeal had been filed within the period allowed for thefiling of an appeal. Consequently, there was no bar in his re-marrying. If the application for setting aside the ex parte decree was filed after the marriage had been contracted, the application for setting aside the ex parte decree 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. According to their Lordships of the Supreme Court, even if there was a bar, the marriage would not be void. The court below has not considered any of these matters.

12. The court below has also not considered the interest of the third party i. e. the second wife of the plaintiff. That marriage cannot be declared to be void or invalid.

13. The contention of the learned counsel for the opposite party wife is that since the ex parte decree was set aside, the status of the opposite party was that of a wife and the second marriage contracted by the husband amounted to bigamy. The question of bigamy would arise when a person having already a wife existing contracts a second marriage. That situation does not arise in the present case. It is also well settled that a court has to take notice of subsequent events. In the case of P. Venkateswarlu v. Motor and General Traders : [1975]3SCR958 , their Lord-ships held '..... .the court can, and inmany cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.' It was the duty of the court below to have taken notice of the subsequent events viz. remarriage of the husband prior to the making of the application for setting aside the ex parte decree.

14. Learned counsel for the opposite party then contended that the provisions of the Code have been made applicable to the proceedings under the Hindu Marriage Act. He referred to the provisions of Section 21 of the Act. It is correct to say that the proceeding under the Hindu Marriage Act is to be conducted, as far as possible, in the manner laid down by the Code. This is, however, subject to two conditions viz. the provisions contained in the Hindu Marriage Act and such rules as the High Court may make in this behalf. Learned counsel then contended that an application for the setting aside of the ex parte decree in a case under Section 13 of the Hindu Marriage Act would be dealt withas is laid down in Order 9 Rule 13 of the Code. This is also correct subject to one consideration i. e. the amendment made to the said provision by the High Court. Reference has already been made to the proviso added by the Allahabad High Court to Rule 13 of Order 9. That proviso has now been incorporated in the Rule by the C. P. C. (Amendment) Act No. 104 of 1976.

15. Learned counsel then contended that the period for filing of an appeal against a decree or for that matter an application for setting aside an ex parte decree would only commence from the date of the knowledge of the order. Learned counsel referred to two decisions of the Supreme Court: Harish Chandra Raj Singh v. Deputy Land Acquisition Officer : [1962]1SCR676 and State of Punjab v. Mst Qaisar Jehan Begum : [1964]1SCR971 . The word 'from the date of such order' was explained in the above decisions. In both the cases the Court was interpreting the words 'the date of the Collector's award' under Section 18(2)(b) of the Land Acquisition Act, 1894. It was held:

'Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned.'

16. Learned counsel referred to the case of Vinod Chandra Dubey v. IX Additional District and Sessions Judge, Allahabad (1978 All LJ 1181) where a learned single Judge construed the words 'from the date of such order' to be the date of actual and constructive knowledge of the party affected by such order. There can be no dispute in regard to this proposition of law. The point is if the party had constructive knowledge, then in that case the order need not be communicated at all. In the present case, the service of the original notice was by refusal. The evidence was that it was actually tendered but refused. The husband had examined a witness before whom the notice was tendered. The court below has not considered this evidence. Consequently, it cannot be said that the wife had no knowledge or could not have any knowledge if necessary diligence had been exercised. The very fact that the wife was living apart from the husband is indicative of the fact that there were serious differences between them. It seems more in consonance with the casetaken by the husband that only after he had remarried that the proceedings had been started to harass him. It, therefore, appears to me that the wife had constructive knowledge of the earlier divorce proceedings. Consequently, it must be held that the proviso to Rule 13 of Order 9 of the Code came into play, and the mere irregularity in the service of the summons would not be a ground for the setting aside of the ex parte decree.

17. Learned counsel for the opposite party also argued that the findings of fact cannot be interfered with in revision under Section 115 of the Code. This is correct, but if a finding of fact is based on non-consideration of material evidence, there is material irregularity in exercise of jurisdiction. Such a finding of fact arrived at by the court below can always be inter fered with.

18. In the case of Ram Dhani v. Pur-shottam Lal Srivastava (1976 All WC 354) : (1976 All LJ 676) cited by the learned counsel for the opposite party the facts were entirely different. In that case, the application for setting aside the ex parte decree was not served with the summons of the suit, but notice was served on his counsel, who accepted the same. It was held to amount to a sufficient service on the decree-holder. The question whether notice was served o.r not would be a question of fact depending upon the circumstance of each case. The question whether there was constructive knowledge of the suit or not would again depend on evidence and circumstance emanating from the facts of the case, but where the court does not consider the material evidence, the finding is vitiated by an irregularity in exercise of jurisdiction.

19. The last contention of the learned counsel for the opposite party is that after the order of the court below was set aside and the application for setting aside an ex parte decree was dismissed, (sic) it would be condemning the wife without being heard. In my opinion, this is not correct. Once it is held that she had constructive knowledge of the divorce proceedings, she had to act promptly to take recourse to the remedy provided under the law. Since she did not avail of that remedy, she is in the sad state of affairs today. The time for filing an appeal had expired and the husband had waited for nearly 34 months before he contracted the second marriage-Even the application for setting aside the ex parte decree was made after the second marriage had been solemnized. Thatmarriage could not be said to be invalid. The interest of a third party has intervened. In these circumstances, it will not be proper nor justified to uphold the order passed by the court below.

20. For the reasons indicated above, the order of the court below suffers from material irregularity in exercise of jurisdiction and cannot, therefore, be sustained. It is accordingly set aside. The Revision succeeds and is allowed. The order of the court below is set aside. Parties are, however, directed to bear their own costs.


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