Tuesday, 16 July 2019

Whether exparte decree can be set aside if summon was served to wife by paper publication?

Article 123 of the Schedule to the Limitation Act, 1963 relates to applications filed to set aside a decree passed ex-parte, or to re-hear an appeal decreed or heard ex-parte. While the limitation prescribed in such cases is 30 days, the period of limitation is required to be computed from the date of the decree, or where the summons or notice was not duly served, from when the applicant had knowledge of the decree. As noted hereinabove, the notices sent to the appellant's address were returned unserved. Sri. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, would submit that the respondent had deliberately sent the notice to the wrong address in order to ensure that the appellant remained unaware of the suit, for divorce, having been filed. We are satisfied that, in the present case, service of notice through paper publication would not constitute due service in terms of Article 123 of the Limitation Act, as the appellant is a house wife without any independent source of livelihood, and is a daughter of petty vegetable vendor living in an interior part of the State of West Bengal. The court below should, therefore, have condoned the delay in filing the application under Order 9 Rule 13 CPC.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Appeal from Order No. 502 of 2017

Decided On: 15.11.2018

 Paromita Mondal Vs.  Tarun Kumar Mondal

Hon'ble Judges/Coram:
Ramesh Ranganathan, C.J. and Alok Singh, J.

Citation: AIR 2019 UTTAR 37


1. Application no. 11039 of 2017 is filed to condone the delay of 442 days in filing this appeal.

2. Sri. S.K. Jain, learned senior counsel appearing on behalf of the appellant, would submit that, while Suit No. 322 of 2010 was filed on 24.09.2010, the said suit was decreed on 22.03.2011 even without notice, in the said suit, being served on the appellant; the appellant came to know of the ex-parte decree when the respondent had filed Criminal Revision No. 3769 of 2012 before the Calcutta High Court to have the charges, levelled against them, quashed; a copy of the ex-parte decree was enclosed along with the petition, in Criminal Revision No. 3769 of 2012, which was served on the appellant at her present address of her parents at Burdwan on 11.12.2012; she came to know about the said order only then; both the Section 5 application, and the application filed by her under Order 9 Rule 13 CPC, on 04.01.2013, less than a month after she came to know of the ex-parte decree being passed, was dismissed by the court below by its order dated 16.05.2016, even though the requirement of Order 5 Rule 20 C.P.C. had not been complied with by the respondent, before directing service of notice through paper publication; aggrieved thereby, the appellant herein had filed First Appeal No. 110 of 2016, along with an application to condone the delay of 171 days in filing the said appeal; this Court had granted stay, which order remained in force during the pendency of the First Appeal; as this Court was of the view that the First Appeal was not maintainable, and that only an Appeal from Order could have been filed, the appellant sought permission to withdraw the First Appeal with liberty to file an Appeal from Order; the First Appeal was dismissed as withdrawn with liberty to file an Appeal from Order; and it is in such circumstances that the delay of 442 days had arisen in filing the present Appeal against the orders of the Family Court.

3. On the other hand Sri. Vivek Shukla, learned counsel for the respondent-husband, would contend that no material has been placed on record to show that the newspaper, by which the notice was caused to be served, was not under circulation in the locality where the appellant resided; the Court below had rightly rejected the application filed under Section 5 of the Limitation Act seeking condonation of the delay in filing the application under Order 9 Rule 13 CPC; and failure on the part of the appellant to prefer an Appeal, from the Order of the Court below, within time, and their choice of a wrong forum by filing the First Appeal, would not justify the inordinate delay in filing this appeal, against the order passed by the court below, being condoned.

4. While the application, under Order 9 Rule 13 CPC, was dismissed by the Court below on 16.05.2016, the appellant herein had filed First Appeal No. 110 of 2016 with a delay of 171 days. Just as a First Appeal lies to a Division Bench of this Court, the Appeal from Order also lies to a Division Bench of this Court. As, in either event, the appellant was required only to prefer an appeal to the Division Bench of this Court, the fact that she filed a First Appeal instead of an Appeal against the Order passed by the court below, would not justify her being non suited on the ground of delay during the period when the First Appeal was pending on the file of this Court, i.e. from 16.12.2016 to 11.07.2017. This delay should not, therefore, be included in computing the delay in filing the present appeal.

5. The delay in filing the present appeal on 01.09.2017, should only be confined to the 171 days delay in filing the First Appeal, and the delay of a fortnight in filing this appeal after withdrawal of the First Appeal. This delay is not so inordinate as to justify refusal to condone the delay, when examined in the light of the fact that the respondent-husband had obtained an ex-parte decree of divorce from the appellant who is only a housewife, has no independent source of livelihood, and is carrying the additional financial burden of having to take care of their minor daughter aged about 7 years. We consider it appropriate, in such circumstances, to condone the delay in filing the present appeal.

6. While CLMA No. 11037 of 2017 is filed seeking stay of all further proceedings, and CLMA No. 11038 of 2017 is filed under Section 24 of the Hindu Marriage Act seeking interim maintenance, both Sri. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, and Sri. Vivek Shukla, learned counsel for the respondent-husband, would agree that, instead of deciding the interlocutory applications, this Court may consider disposing of the main appeal itself.

7. The present appeal is preferred against the order passed by the Court below on 16.05.2016 rejecting the appellant's application to condone the delay of 36 days in filing the application, under Order 9 Rule 13 CPC, seeking to have the ex-parte decree passed on 22.03.2011 set-aside.

8. Mr. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, would contend that the delay in filing the application, under Order 9 Rule 13 CPC, should be computed only from the date on which the appellant came to know of the ex-parte decree having been passed i.e. on 11.12.2012; and in the absence of the notice being served on the appellant, the period of limitation is required to be computed only from the date of knowledge, and not from the date of the order, in view of the Article 123 of the Schedule to the Limitation Act.

9. On the other hand Sri. Vivek Shukla, learned counsel for the respondent-husband, would submit that since the Suit was decreed on 22.03.2011, the delay in filing the application, to set-aside the ex-parte decree, should be computed from the date of the decree; and not from the date of the alleged knowledge of the appellant herein.

10. As noted hereinabove, Suit No. 322 of 2010 was filed by the respondent-husband on 24.09.2010. Notices, sent to the appellant, were returned unserved. Thereafter, the Court below had directed service of notice through paper publication. Order 5 Rule 20 CPC provides for substituted service, and sub-Rule (1) thereto provides that, where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason summons cannot be served in the ordinary way, the Court shall order summons to be served by affixing a copy thereof in some conspicuous place in the Court house and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business or personally worked for gain or in such other manner as the Court thinks fit. Under sub-Rule (1-A) of Order 5 Rule 20 CPC, where the Court, acting under Sub-Rule (1), orders service by a advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business, or personally worked for gain.

11. Sub-Rule (1-A) of Order 5 Rule 20 CPC would apply only in cases where the Court acts under sub-Rule (1) of Order 5 Rule 20 CPC which confers power on the Court to direct service of notice through paper publication only when it is satisfied that it has reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason summons cannot be served in the ordinary way. The order under appeal does not record that the court below was satisfied of either of the two contingencies justifying service being effected by way of paper publication. As is evident from the pleadings, the appellant is a housewife and her father is a petty vegetable vendor eking out his livelihood in an interior part of the State of West Bengal. While it is debatable whether they could afford even to subscribe to any newspaper, even otherwise their failure to notice the publication in a newspaper did not justify rejection of their application, filed under Order 9 Rule 13 CPC, merely on the ground of delay. As noted hereinabove, the appellant had invoked the jurisdiction of the court below within three weeks from 11.12.2012 when she came to know of the order being passed in Suit No. 322 of 2010 on 22.03.2011.

12. We must express our inability to agree with the submission of Sri. Vivek Shukla, learned counsel for the respondent-husband, that the delay in filing the application, under Order 9 Rule 13 CPC, should be counted from the date of the ex-parte decree i.e. 22.03.2011. In her application, filed under Order 9 Rule 13 CPC, the appellant has expressly stated, in paragraph 3(q), that the respondent and other accused secured bail; thereafter, they preferred a revision application before the Calcutta High Court for quashing of the charges levelled against them; the said case was numbered as Criminal Revision No. 3769 of 2012; the same was pending for hearing; a copy of the said application was served on the defendant (appellant herein) on 11.12.2012 at her present address of her parents at Burdwan; and it is only then that she came to know about the ex-parte decree having been passed in Suit No. 322 of 2010 on 22.03.2011.

13. Article 123 of the Schedule to the Limitation Act, 1963 relates to applications filed to set aside a decree passed ex-parte, or to re-hear an appeal decreed or heard ex-parte. While the limitation prescribed in such cases is 30 days, the period of limitation is required to be computed from the date of the decree, or where the summons or notice was not duly served, from when the applicant had knowledge of the decree. As noted hereinabove, the notices sent to the appellant's address were returned unserved. Sri. S.K. Jain, learned Senior Counsel appearing on behalf of the appellant, would submit that the respondent had deliberately sent the notice to the wrong address in order to ensure that the appellant remained unaware of the suit, for divorce, having been filed. We are satisfied that, in the present case, service of notice through paper publication would not constitute due service in terms of Article 123 of the Limitation Act, as the appellant is a house wife without any independent source of livelihood, and is a daughter of petty vegetable vendor living in an interior part of the State of West Bengal. The court below should, therefore, have condoned the delay in filing the application under Order 9 Rule 13 CPC.

14. In the order under appeal, the court below opined that no sufficient cause was shown to set aside the ex-parte decree. As is evident from the facts, noted hereinabove, it is only on 11.12.2012 that the appellant came to know of an ex-parte decree of divorce having been passed on 22.03.2011, which had resulted in the appellant being left in penury with her minor daughter to take care of.

15. The only basis for the court below to hold that sufficient cause was not shown for allowing the application under Order 9 Rule 13 CPC is the alleged inordinate delay in filing the said application. We are satisfied that the appellant had filed the application, under Order 9 Rule 13 CPC, within the prescribed period of limitation of 30 days from the date on which she became aware of an ex-parte decree having been passed. The order of court below, rejecting the application under Order 9 Rule 13 CPC, is therefore set aside. Suit No. 322 of 2010 shall stand restored to file. The court below shall dispose of Suit No. 322 of 2010, which was instituted more than 7 ½ years ago, with utmost expedition, after giving the appellant a reasonable opportunity of filing her written statement.

16. This appeal is disposed of accordingly.


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