Peter George vs Mrs. Pheby Peter George
2006 Latest Caselaw 1487 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The appellant has impugned ex-parte order dated 17-4-2000 decreeing judicial separation of the parties, upon the petition moved by the respondent wife under Section 23 of the Indian Divorce Act.

2. The marriage between the appellant (husband) and respondent (wife) was solemnised on 25th November, 1984 in New Delhi according to the customs in Church. The marriage certificate was issued on the 30th of January, 1985 by Vicar of the Church where the marriage was conducted. After a couple of days, the parties went to Doha to begin their conjugal life. The couple were blessed with their first daughter in the year 1986 and their second daughter in the year 1991. It is alleged that due to misunderstanding and frequent tensions between the parties, the respondent along with the children returned to India in 1999 and since then is living with her children in Perur, Coimbatore. She, thereafter, on 18.8.1999, filed a petition under Section 23 of Indian Divorce Act for judicial separation against the appellant in the court of District Judge, Delhi. The Court issued notice to the Appellant.

3. The Appellant was proceeded ex-parte on 10.1.2000 for non-appearance and the case was fixed for 13.4.2000. The appellant on 11.2.2000 filed an application under order 9 Rule 7 of the CPC for setting aside the order dated 10.1.2000 setting him ex-parte. Meanwhile, the court recorded the ex-parte evidence of the respondent, the evidence was also closed. The arguments were heard, the case was fixed for orders on 8.4.2000, which was further adjourned to 17.4.2000, on that date the trial court dismissed the application of the appellant and decreed the suit in favor of the respondent.

4. Aggrieved by the order the appellant filed an application for setting aside ex-parte decree, which was declined by the trial court on 8.1.2001. When the matter was taken up for hearing, none appeared on 19-1-2006; notice was issued to counsel on 19-1-2006, returnable on 20th April, 2006. An application, CM 3746/06 was moved on behalf of the appellant, which was listed on 10-3-2006; none appeared on his behalf. The matter was adjourned to 3-4-2006. On that date again, there was no appearance; the matter was renotified for 18-7-2006. The case was again listed on 20-4-2006, as per order dated 19-1-2006, when again, there was no appearance. The court adjourned the appeal to 31-8-2006. The matter was listed on 18-7-2006, when as per previous order, the appeal was directed to be heard, as per the order of 20-4-2006, it was listed on 31-08-2006. Today, both the application and the appeal have been listed, as per previous orders. Again, there is no appearance on behalf of the appellant. The matter has therefore, been dealt with on the merits.

5. The pleadings in the application under Order 9 Rule 13 have been annexed to the appeal. As per the averments, the appellant admits having knowledge of the appeal, and causing appearance on 24-11-1999, when the matter was adjourned to 10-1-2000. On that date, he went unrepresented. The court proceeded ex-parte, and adjourned the case for recording evidence on 13-4-2000. The appellant moved an application under Order 9, Rule 7, on 11-2-2000; it was adjourned for the date fixed for disposal of the case. In the meanwhile, it is alleged that an application was moved by the respondent, and the date was preponed to 10-3-2000. The petition was taken up and after recording ex-parte evidence, decreed on 17-4-2000.

6. The learned District Judge, in his later order, rejecting the application under Order 9, Rule 13, CPC, found as follows:

None appeared for the applicant either on 10-3-2000, 13-3-2000, 3-4-2000, 5-4-2000, 8-4-2000, and 17-4-2000, the dates on which the case was adjourned for hearing. Ex-parte decree was granted in favor of the wife on 17-4-2000. To justify the sufficient cause, which prevented the applicant to put in his appearance before the court, it is stated that the applicant was there in Baharain and his counsel could not appear before the court wince his wife had delivered a child and he was busy attending her. Neither an affidavit of the applicant nor of his counsel has been filed in support of the application. In his application dated 11-2-2000, he states that Shri H. Subramaniam, Advocate could not attend the court on 10-1-2000, since his Samdhi has expired that day. In that application he mentions that another advocate was appointed, who informed him after enquiry from the court on 20-1-2000 that the case has been proceeded ex-parte. In that application he nowhere talks as to who was his another counsel, who informed about the ex-parte order dated 10-1-2000. The application under reference is moved by Shri Rajesh Srivastava, Advocate under his own signatures. Niether the application is signed by the applicant nor is it verified by him. As said above, the application is not supported by an affidavit. Shri Rajesh Srivastava, Advocate has failed to explain as to why the applicant could not appear before the court either in person or through counsel on the aforesaid dates of hearing. He could not explain as to when his wife had delivered a child and on which dates neither he (counsel) could appear before the court nor could make alternative arrangements to represent the applicant on the above dates before the court. It is obvious that the applicant is trying to fabricate facts iin order to over-reach the court.

5. Applicant has failed to show that there were sufficient cause which prevented him in putting his appearance before the court on 10-1-2000 and thereafter, either in person or through counsel. There is no substance in the application under reference. Dilatory steps were taken by the applicant, with an intention to cripple his wife in prosecution of her petition. After moving the application under Order 9 Rule 7, the applicant slept over the matter, with an intention to delay the matter and claim the relief of getting the ex-parte order set aside only on the last moment, whcen the wife was to pray for a relief. When the wife got the ex-parte decree of judicial separation, the applicant came out of his shell and moved the application under reference. Contradictory facts are pleaded in the application, under Order 9 Rule 7 CPC and the application under reference. Inconsistent stand of the applicant in these two applications is sufficient to speak about the veracity of his case. Consequently, I am of the view that there was no cause, much less than the sufficient cause to prevent the applicant in putting his appearance before the court on 10th Jan, 2000 and thereafter. His application is nothing but an abuse of the process of the court. The same is consequently declined.

7. The appeal was filed on 16-4-2001; it is barred by 68 days. It appears that an application for condensation of delay was not filed along with the appeal; it was filed in October, 2001, along with an affidavit attested in Bahrain, on 4-8-2001. Apart from stating that the appellant resides at Bahrain, no explanation is forthcoming for the delay in the filing of the appeal.

8. The main refrain of the appellant in these proceedings, is that his applicaiton under Order 9, Rule 7 was pending, and therefore, the trial court could not have proceeded to decree the petition under Section 23, Indian Divorce Act. I am afraid, a wide proposition of that sort cannot be accepted. The surrounding circumstances of each case would have to be considered. In this case, no cause was shown for non-appearance on 10-1-2000. The matter was fixed for recording evidence; even on the admitted dates, the appellant does not appear to have caused appearance on his behalf. No explanation is forthcoming as to what steps were taken from 13-4-2000 onwards, when as per the appellant, the matter ought to have been heard. Having been appraised of the order of court setting him ex-parte, the appellant ought to have exercised diligence, and joined the proceedings. As noted by the trial court, the application under Order 9 Rule 13 did not disclose material facts that could impel a conclusion that non-appearance was for sufficient case. The pleadings were bereft of particulars, and even any supporting affidavit. In this situation, the order of the trial court, declinig the application can hardly be faulted. No other ground has been urged in support of the appeal against the judgment decreeing the petition, on 17-4-2000.

9. For the foregoing reasons, the appeal is unmerited; it is dismissed.