Allahabad High Court
Pankaj Rastogi vs Reena Rastogi on 17 August, 2022
Bench: Sunita Agarwal, Om Prakash Shukla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 39
Case :- FIRST APPEAL DEFECTIVE No. - 178 of 2022
Appellant :- Pankaj Rastogi
Respondent :- Reena Rastogi
Counsel for Appellant :- Ashish Kumar Srivastava
Hon'ble Mrs. Sunita Agarwal,J.
Hon'ble Om Prakash Shukla,J.
This is delayed appeal challenging the order passed by the family court on an application under Section 5 of the Limitation Act moved by the respondent-wife alongwith the Order 9 Rule 13 C.P.C. application seeking for recall of the ex parte judgment and decree dated 18.7.2018 and 6.8.2018; respectively.
The delay of 22 days in filing this appeal has been explained to the satisfaction of the Court. The delay condonation application is hereby allowed. The delay in filing this appeal is condoned. The appeal be treated to have been filed in time.The office is directed to allot regular number to the appeal.
On merits of the appeal, it may be noted that the application under Order 9 Rule 13 CPC had been moved by the respondent-wife on 1.8.2019 supported by an application under Section 5 of the Limitation Act categorically stating therein that she was not aware of the proceedings of the divorce suit as no notice or summons were ever served upon her. The appellant had succeeded in getting the ex parte decree by misguiding the family court.
While allowing the application under Section 5 of the Limitation Act, categorical finding has been recorded by the family court that while proceeding to decree the divorce suit ex parte on 18.7.2018 the family court recorded service of summons on the basis of paper publication and prior to that no satisfaction was recorded with regard to the regular mode of service i.e. ordinary process or registered post A.D. The service of notice by publication was not sufficient. There is a categorical statement by the wife-respondent that she was informed about the ex parte decree of divorce by her husband only on 4.7.2019 and on getting the knowledge of the decree, she has moved an application under Order 9 Rule 13 CPC supported by the application under Section 5 of the Limitation Act on 1.8.2019 itself.
Having gone through the order sheet of the divorce suit which was decreed ex parte, the material returned by the family court about the improper service of notice through publication is found to be justified.
We may further record that in the application under Order 9 Rule 13 CPC categorical stand has been taken by the respondent-wife that in proceeding under Section 9 of the Hindu Marriage Act, on the assurance given by the appellant-husband, a compromise had been arrived between the parties and the said petition was dismissed on the basis of the compromise that both the parties had reconciled to live together. Soon after having compromise decree under Section 9 of the Hindu Marriage Act on 12.5.2016, a suit under Section 13 of the Hindu Marriage Act was filed in the year 2017 itself taking ground of Section 9 decree.
In the above petition under Section 13 of the Hindu Marriage Act, no notice or summons were ever served upon the the appellant and the appellant has succeeded in getting the ex parte decree on service by substituted mode of service by publication.
In view of categorical stand taken by the respondent-wife in an application under Order 9 Rule 13 CPC that she was duped by her husband who had given assurance to keep her with him and later sought divorce within a short time, further the finding returned by the family court in the order impugned that the notice by publication was not sufficient service of notice, we do not find any good ground to interfere in the judgment and order dated 8.4.2022 passed on the application under Section 5 of the Limitation Act.
The present appeal is found devoid of merit and is dismissed at the admission stage itself.
However, it is clarified that the observations herein above are pertaining to test the validity of the order dated 8.4.2022 and none of the observations above shall come in the way of parties in the proceedings under Order 9 Rule 13 CPC pending before the family court. The court concerned is required to deal with the application under Order 9 Rule 13 CPC independently without being influenced by any of the observations made herein above or in the order dated 8.4.2022 passed on the application under Section 5 of the Limitation Act.
Order Date :- 17.8.2022
S.K.S.
