Skip to content


K. Narayanaswamy Vs. Sundari - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtChennai High Court
Decided On
Reported in(1980)1MLJ278
AppellantK. Narayanaswamy
RespondentSundari
Cases ReferredPursty v. Sheikh Abdul Rahman
Excerpt:
- .....of notice would be debarred from the exercise thereof. it might also be stated that rule 32 of the civil rules of practice provides that notice of interlocutory application shall be given to the other parties to the suit or matter or their pleader not less than 3 days before the day appointed for the hearing of the application, unless the court otherwise orders. the mode of service of the notice is also indicated in rule 32(2) and (3) of the civil rules of practice. in the present case, in the petition for annulment of the marriage filed by the petitioner against the respondent, the respondent had been set ex parte and the petition was adjourned for evidence of the petitioner on 28th october, 1974, on which date the petitioner was absent and hence, the o.p. itself was dismissed for.....
Judgment:

V. Ratnam, J.

1. The husband who filed a petition in O.P. No. 102 of 1974 for an annulment of his marriage with the respondent is the petitioner in this civil revision petition which arises out of an application filed by the respondent herein under Order 9, Rule 13, Civil Procedure Code, to set aside the ex parts decree passed against her in O.P. No. 102 of 1974 on 1st November, 1974. The respondent stated in her affidavit that she and the petitioner were living in the house of the petitioner as husband and wife till 15th June, 1973, and thereafter misunderstandings arose between them as a result of which she was driven out and later she came to know that the petitioner was making arrangements to marry another girl. According to the respondent, she preferred a police complaint to prevent that marriage when she was confronted with an ex parte Order of annulment of marriage between them in O.P. No. 102 of 1974, and it was then that she came to know that the petitioner had made it appear as if she had received the summons and had remained absent in the proceedings. Therefore she claimed that the order in O.P. No. 102 of 1974 dated 1st November, 1974, obtained by the petitioner should be set aside as she was not aware of the proceedings and as she had not deliberately remained absent after knowledge of the proceedings and therefore she must be given an opportunity to put forward her defence in the petition filed by the petitioner for annulment of the marriage in O.P. No. 102 of 1974.

2. The petitioner who resisted the application disputed the marriage with the respondent and further denied that he ever ill treated the respondent and drove her away to her parent's house. It was also further denied by him that he withheld knowledge of the proceedings from the respondent. According to him, there was no marriage at all between him and the respondent never lived with him as his wife and he was compelled to affix his signature in a document dated 15th June, 1973, and therefore the petition ought to be dismissed.

3. The learned Second Additional Subordinate Judge, Coimbatore, who heard the application held that the respondent herein had come forward with the petition patting forth false and fraudulent grounds to set aside the ex parte order passed in O.P. No. 102 of 1974 on 1st November, 1974. The objection of the respondent that no notice of the application in I.A. No: 902 of 1974 was given to her and consequently the further proceedings that followed was also overruled. On these conclusions, the application was dismissed. Aggrieved by this order, the respondent herein preferred an appeal in C.M.A. No. 75 of 1977. The learned District Judge of Coimbatore (West) differed from the learned Subordinate Judge and held that in the absence of notice to the respondent in I.A. No. 902 of 1974 which was an application for restoration of the dismissed O.P. No. 102 of 1974 for default, the further proceedings in the main O.P. were invalid and that the respondent herein should have been given not only notice of that application, bat also should have been heard, Ultimately, taking into account the justice aspect of it, the learned District Judge felt compelled to give an opportunity to the respondent to put forward her case and in that view, he set aside the ex parte order in O.P. No. 102 of 1974 and directed the learned Subordinate Judge to dispose of the same on merits in accordance with law.

4. In this civil revision petition, the learned Counsel for the petitioner contends that there is no obligation whatever in a proceeding which falls under Order 9, Rule 4, Civil Procedure Code, to give notice to the other side and the omission to give any notice to the respondent in I.A. No. 902 of 1974 does not in any manner vitiate the further proceedings. In order to support this contention, the learned Counsel relies on the language of Order 9, Rule 9 and contends that in the absence of any provision as found in Order 9, Rule 9(2) in Order 9, Rule 4, the setting aside of the ex parte order without notice and the further proceedings taken therein will not in any manner be vitiated.

5. In Mool Chand v. Ganga Sahai : AIR1933All522 , the suit was dismissed for default owing to the failure of the plaintiff and the defendant to appear and on an application by the plaintiff for restoration, notice of that application was served on the defendant who, however, did not appear. The application for restoration was allowed and a date was fixed for the hearing of which the defendant had no notice and the case was decided in favour of the plaintiff on the date so fixed and thereafter, the defendant applied for restoration of the case on the ground that he had no knowledge whatever of the date of hearing. On revision against the dismissal of this application for restoration, it was held that the defendant is entitled both in equity and as of right to notice of the date fixed for hearing the case after its restoration by the plaintiff. In Ramchandra Ramaji Khatik and ethers v. Sahadeo Gopala Koshti and Ors. A.I.R. 1945 Nag. 185 applying the principles of Mool Chand v. Ganga Sahai : AIR1933All522 Puranik, J., observed thus:

There is nothing stated in Order 9, Rule 4, that when such an application is made by the plaintiff for restoration, a notice has to be given to the other side of that application. Thus, notice of an application for restoration not having been prescribed by Rule 4 of Order 9 may not be claimable by the defendants as of right; but when the Court restores a suit to file and fixes another date for hearing of the case it does not stand to reason that the defendants should not be given notice of the hearing of the suit. In fact the defendants had no reason to know that an application for restoration had been made and allowed. They knew that the suit had been dismissed for default. They could not anticipate that an application for restoration would be made and allowed. If such an application is made it is but equitable to hold the Court should fix the case for hearing parties and give notice of the hearing to the other side.

In a later decision of the Allahabad High Court reported in Babu v. Devan Singh and Ors. : AIR1933All522 Desai, J., held that Order 9, Rule 4 does not lay down that before a suit is restored, notice should be given to the defendant and that the defendant is entitled to notice only when a suit is dismissed for default under Rule 8 in his presence. It was further held that when a suit had proceeded ex parte, not only the defendant not entitled to any notice further, but also it is his duty to appear suo motu in Court and apply for the setting aside of the ex parte proceedings if he wishes to be heard in defence of the suit and when the defendant has no right to be heard, it would be inconsistent to say that a notice of the date should be given to him. The decision of Mool Chand v. Ganga Sahai : AIR1952All749 and Ramachandra Ramaji Khatik and Ors. v. Sahadeo Gopala Koshti and Ors. A.I.R. 1945 Nag. 185 were distinguished as not being on all fours with the facts of that case. A Division Bench of Allahabad High Court had occasion to consider the scope of Order 9, Rule 4 in Laljit Singh and Ors. v. Pyarelal and Ors. : AIR1956All714 . Dealing with the scope and applicability of Order 9, Rule 4 and Order 9, Rule 9, Civil Procedure Code the Division Bench held that where a suit had been dismissed because neither party had appeared when it was called on for hearing, the order has to be set aside without notice whereas under Order 9, Rule 9, no order made under Rules 8 and 13 shall be set aside without notice to the other side and the latter would apply to the class of cases in which an order has been passed as against one party in the presence of the other. In Balanand and Anr. v. Devakinand and Ors. , the Himachal Pradesh High Court considered the question whether the restoration of the suit without notice to the defendants who were present on the day when the order of dismissal was made, could be made. The principle underlying Order 9, Rule 9, Civil Procedure Code, was held to be equally applicable to an application for setting aside an order for dismissal of a suit under Order 9, Rule 2, Civil Procedure Code, if on the date on which the order of dismissal is passed some of the defendants are present. It is also stated that different considerations might arise if the defendant had not been present either in person or through his counsel on the date fixed. In prahlad Pursty v. Sheikh Abdul Rahman : AIR1966Ori232 , J., held that though generally a notice to the opposite party is not essential in a proceeding under Order 9, Rule 4, Civil Procedure Code, there may be cases where a valuable right of the defendant may be affected and that in such cases, service of notice is mandatory. The learned Judge further proceeded to hold that by the dismissal of the suit, a valuable right had accrued to the defendant and it would be contrary to the principles of natural justice to debar him from exercising the right of contest and the absence of a provision for service of notice does not necessarily lead to the conclusion that the party wanting to exercise a right even without service of notice would be debarred from the exercise thereof. It might also be stated that Rule 32 of the Civil Rules of Practice provides that notice of interlocutory application shall be given to the other parties to the suit or matter or their pleader not less than 3 days before the day appointed for the hearing of the application, unless the Court otherwise orders. The mode of service of the notice is also indicated in Rule 32(2) and (3) of the Civil Rules of Practice. In the present case, in the petition for annulment of the marriage filed by the petitioner against the respondent, the respondent had been set ex parte and the petition was adjourned for evidence of the petitioner on 28th October, 1974, on which date the petitioner was absent and hence, the O.P. itself was dismissed for default. On 29th October, 1974, I.A. No. 902 of 1974 was filed to set aside the order of dismissal for default and admittedly, the said petition was allowed immediately without any notice to the respondent herein with the result the respondent had absolutely no knowledge of I.A. No. 902 of 1974 and the ex parte order that was passed by the learned Subordinate Judge. The circumstances under which the notice to the respondent has been dispensed with are not very clear and the respondent, not having had any knowledge of that proceeding, cannot be held to be bound by it in the absence of a revision or an appeal questioning that order as the first Court would state. A reference to the several decisions mentioned above would indicate that though on a strict interpretation of Order 9, Rule 4, Civil Procedure Code, it may be that no notice as such is contemplated by that provision, yet the Civil Rules of Practice provide for giving of such a notice even in the interlocutory applications to the other side and no distinction is made whether the other party had appeared earlier or not. Therefore, even on the footing that the respondent had earlier not appeared but remained ex parte, after the termination of the proceedings in her favour by the dismissal of the suit or proceedings for default, the requirement as to the service of notice as contemplated by Rule 32 of the Civil Rules of Practice in an interlocutory application of the nature under Order 9, Rule 4 cannot be dispensed with as an order passed on such an application would vitally affect the interests of the defendant secured under the adjudication by default. The object of notice in a proceeding is merely to bring it to the knowledge of the other side and afford an opportunity to put forth such objections as they may have. Audi alterem parterm is the foundation on which the entire administration of justice rests. Therefore, though Order 9, Rule 4, Civil Procedure Code, by its terms may not require notice to be given to the other side before the application for restoration is taken up and dealt with, yet, the principles of natural justice, fairplay, equity and practice in vogue require that the other aide in whose favour a right has accrued should be heard before an order adverse to his interest is made. For the aforesaid reasons, the respondent should have been given notice of I.A. No. 902 of 1974, though not under Order 9, Rule 4, Civil Procedure Code. The lower Appellate Court was, therefore, perfectly justified in holding that the order of the trial Court is not sustainable.

6. Even otherwise, having regard to the contest between the parties who are husband and wife, an adequate and effective opportunity must be given to the respondent to put forth her case in opposition to the one that has been pleaded by the petitioner. The failure to do so would defeat the ends of justice and the lower Appellate Court had in its order done only substantial justice between the parties, especially when the respondent had been kept completely in the dark with reference to the proceedings taken out by the petitioner and he had knowledge of the passing of the ex park order in O.P. No. 102 of 1974 on 1st November, 1974, only a week before the filing of the application in I.A. No. 1147 of 1976. There is no error of jurisdiction in the order of the lower Appellate Court. Consequently, the civil revision petition fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //