1. Aggrieved by the decree of judicial separation, passed by the District Judge, Gwalior on 15-9-1981, the appellant-wife has preferred this first appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), though originally this appeal was wrongly presented under Section 96 of the Code of Civil Procedure.
2. The appellant is the wife and the respondent is the husband. Respondent filed an application in the Court of District Judge, Gwalior, under Section 13 of the Hindu Marriage Act, 1955 for a decree of divorce on the ground of cruelty. The process was issued by the District Judge, by Registered-Post, but the endorsement on the envelope is that the appellant-wife Laxmibai refused to accept it. Hence, as mentioned in para 3 of the impugned judgment, the District Judge proceeded ex parte against the appellant. He recorded the evidence of the respondent -- Keshrimal Jain and pronounced his judgment on 15-9-1981. Against this judgment the appellant preferred appeal along with an application for condonation of delay. The delay was condomed vide order dated 18-9-1984 and the appeal was admitted for hearing.
3. I have heard the learned counsel for both the parties. The main contention of the appellant is that it has wrongly been written on the envelope, sent by registered post, that the appellant has refused to accept the same. Shri Ramji Sharma learned counsel for the appellant, strongly argued that the ex parte order passed by the District Judge was not only erroneous but it is also based upon the defective service of process itself. In para 3 of the impugned judgment, the District Judge has described as in what way the process was sent and how it was refused. I examined the envelope and the endorsement of the postal authorities 'refused to accept'. This endorsement carries with it presumption of its correctness, unless the contrary is proved. This Court in the case of Chandransingh v. Akhatar Ali & Co., 1969 MPLJ Notes No. 21 page 14 has decided that the endorsement of refusal made by the Process-server does not require proof by evidence as summons is a public document. Thus, there was no reason why the trial Court should not have presumed the service to be proper and in correct manner.
4. Shri Sharma has not submitted anything with regard to the correctness and legality of the impugned judgment and decree, as passed against his client by the District Judge. His pointed attack was only on the fact that the Reader of the Court on 21-7-1981 and 10-8-1981, which were the dates of hearing, made mention of wrong facts and that the Reader has no power to pass any orders. If this submission is accepted, the utility of Readers in the Court of law would be futile, when the Judge himself is on leave. I have examined the order-sheets dated 27-8-1981 and 10-8-1981 and find that the Reader has only noted a fact in the order-sheet dated 21-7-1981 and nothing else. He has not passed any orders, but only, has posted the case to a date, as the presiding officer was on leave. It was on 10-8-1981 that the Court has passed the ex parte order against the appellant, after noting in the order-sheet that the appellant has refused to accept the process. Thus, this argument of Shri Ramji Sharma has no force at all.
5. Shri Ramji Sharma, learned counsel for the appellant has also strenuously argued that the ex parte decree passed by the District Judge was wrong because the ex parte order itself was based on the wrong facts. It is settled view that in an appeal against the ex parte decree, the appellant cannot be allowed to show that he was prevented by any sufficient cause from appearing at the hearing. For that purpose he must have recourse to the special procedure under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. The appellant instead of taking recourse under the provisions of Order 9, Rule 13 of the Code of Civil Procedure has preferred this appeal. The grounds on which an ex parte order can be challenged are different from that any question arising under Order 9, Rule 13, C.P.C. In an appeal against ex parte decree, the appellant cannot be allowed to convert it into a proceeding for setting aside the decree. Such an appeal also not be converted into an appeal under Order 43, Rule 1, C.P.C. The reason is that, when a particular remedy is provided for setting aside an ex parte decree and there is, by way of appeal, another special remedy against an order refusing to set it aside, those remedies and none other 'must be followed. But here the appellant instead of filing an application under Order 9, Rule 13, C.P.C. is trying to challenge the ex parte order by the District Judge in forum given to him under Section 28 of the Act. I am fortified in my view by the judgment of Division Bench of this Court reported in 1966 MPLJ 507 (Ramlal v. Rewa Coal Field Ltd., Calcutta). This Court has again taken a similar view in 1977 MPLJ 562 : (AIR 1977 Madh Pra 182) (N. P. Nigam, Gwalior v. Motilal);
'When an ex parte decree is passed against defendant he has a remedy of getting ex parte decree set aside under Order 9, Rule 13, Civil Procedure Code. He may also appeal against the ex parte decree. If he does not apply under Order 9, Rule 13 but chooses to appeal he can challenge the decree only on merits and cannot get it set aside on the ground that there was sufficient cause for his non-appearance. He cannot question the propriety of proceeding, ex parte, though he can show that in the order proceeding ex parte there was any error, irregularity or defect affecting the decision of the case.
6. The husband has asked for a decree of divorce, but the District Judge, in his wisdom chose to pass a decree for judicial separation under the pious hope that the husband and wife during the period of decree may choose to abandon their differences and embrace each other to lead a happy marital life. By this decree, I do not think, the appellant has suffered in any manner because during this period of judicial separation she can try either to adjust herself with her husband or wait for the period to be over. The respondent-husband seems to be sullen because he was not granted a decree for divorce. A decree of divorce pronounces finality of the marital status. All Courts in India always have a pious hope for reconciliation between the couple.
7. Consequently, the appeal having no force is dismissed. However, there shall be no order as to costs.