Mrs. Shipra Chatterjee vs Siddharth Chatterjee
2007 Latest Caselaw 206 Del

JUDGMENT

B.N. Chaturvedi, J.

1. Instant appeal arises out of an order dated 7th June, 2002 of the Learned Additional District Judge, Delhi, dismissing the appellant's applications under Order IX Rule 13 CPC and under Section 5 of the Limitation Act.

2. A petition, under Section 13(1)(i-a) of the Hindu Marriage Act, was filed by the respondent-husband against the appellant wife on 18th April, 1996. On being served with notice, the appellant filed her Written Statement and contested the petition. During the pendency of the petition, an application under Order VI Rule 17 CPC, accompanied by an amended petition under Section 13-B(1) of the Hindu Marriage Act, signed by both the parties, came to be filed on 27th August, 1998 which was slated for consideration on 28th August, 1998. On 28th August, 1998, however, there was no appearance from the side of the appellant and she was thus proceeded ex-parte. The petitioner husband withdrew the application under Order VI Rule 17 CPC and made a statement closing his evidence as prior thereto, his statement in examination in chief had already been recorded and he was only in the process of being cross-examined on behalf of the appellant. Based on the evidence, produced by the respondent husband, an ex-parte decree of divorce was eventually passed against the appellant on 2nd December, 1998.

3. The appellant filed an application for setting aside the decree dated 2nd December, 1998 on 17th April, 2000 stating therein that after recording respondent's statement partly on 19th August, 1998, the matter was adjourned to 25th August, 1998 for further evidence. On 25th August, 1998, however, the appellant was approached by the respondent for seeking divorce by mutual consent when the appellant told that she required some time to think over it. However, on the very next day, i.e., 26th August, 1998, the respondent sent to her an application for divorce by mutual consent, at the hospital where she was working, which she was asked to sign. According to the appellant, she did not want to spoil her reputation being a respected doctor there hence she signed that application 'under duress'. She claims to have had informed her lawyer that she would not be in a position to attend the proceedings on that day, i.e., 26th August, 1998 since she had some urgent work at the hospital. She, on 26th August, 1998 called her lawyer to find out the outcome of the proceedings when she was told that the matter had been adjourned and that she would keep her posted about the hearing. Thereafter, states the appellant, she had been calling her lawyer on regular basis, but she was told that as and when her presence would be required before the Court, she would inform her in that regard.

4. In November, 1999, the appellant came to know from one of her relatives that the respondent had communicated to him that he had been granted a decree of divorce against her. Thereupon, she immediately contacted her lawyer, who informed her that the matter was fixed for 3rd December, 1999. On 3rd December, 1999 on being contacted, the lawyer again told her that the matter was in fact posted for 3rd January, 2000 and that he had earlier communicated a wrong date due to oversight. On 3rd January, 2000, the appellant herself, inspite of being informed by her counsel that the Courts would be closed on that day, went to the Courts and found that the Courts were functioning, but her case was not on Board. Thereafter, she repeatedly contacted her lawyer and also met her several times, but she got only evasive reply. She, thereafter, changed her lawyer. The lawyer, newly engaged, on inspection of the file found that an ex- parte decree had been passed as early as in December, 1998. The appellant, thereafter, applied for a certified copy of the decree and proceedings, which were made available to her on 8th March, 2000, whereafter, an application for setting aside the decree was filed along with an application under Section 5 of the Limitation Act.

5. Notice of the applications was served on the respondent-husband by publication. There was no appearance on his behalf and thus the applications remained uncontested.

6. Learned Additional District Judge on hearing the learned Counsel for the appellant and examining the matter concluded that the appellant had failed to show sufficient cause which prevented her from appearing before the Court on 28th August, 1998. She rather observed that her non-appearance on 28th August, 1998 was 'preplanned to delay the proceedings of the Court or to harass the non- applicant/husband in one way or the other'. She also found the application for setting aside ex-parte decree being barred by time. She accordingly proceeded to dismiss both the applications.

7. I have heard arguments on either side.

8. Negligence and misdemeanour of her counsel is stated to be the reason for appellant failing to pursue the matter before the Matrimonial Court on 28th August, 2nd November and 17th November, 1998 when the case came up for hearing before that Court and consequently, remained unaware of ex-parte decree of divorce which was eventually passed against her on 2nd December, 1998.

9. learned Counsel for the appellant argued with reference to a decision of the Supreme Court in Rafiq v. Munshilal that in a case where an ex-parte decree is passed on account of failure on the part of a party's counsel to appear before the Court on the dates of hearing and the client is kept in dark regarding correct position relating to progress of the proceedings, it is only the party concerned who suffers the consequences and in such a situation the Court would not allow an innocent party suffering injustice merely for the lapses on the part of his counsel.

10. learned Counsel for the respondent, on the other hand, countered the argument so advanced on behalf of the appellant by citing another decision of the Supreme Court in Salil Dutta v. T.M. and M.C. Private Ltd. . Noticing the decision in Rafiq (supra), in Salil Dutta (supra), it was laid down:

Though in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognized. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq case must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition....

11. Unlike in Rafiq's case (supra), in the present case, the appellant happens to be a well educated lady, serving as a doctor in a hospital, who, inspite of having engaged a counsel to represent her, had been defending the divorce case by attending the Court personally on different dates (vide para 2 (vii) of her grounds of appeal). Thus, it was not a case where she had left it entirely to her counsel to defend the proceedings before the Trial Court. From the record, it is gathered that ever since the respondent caused her appearance on being served with notice of the petition, she continued to be represented by her counsel on all the dates of hearing from 10th September, 1996 to 27th August, 1998, barring on two dates when the advocates were on strike. It was only on 28th August, 2nd November, and 17th November, 1998 that her counsel omitted to turn up and she went unrepresented. Strangely, in contrast to the reason set forth in her application under Order IX Rule 13 CPC and Section 5 of the Limitation Act, she seeks to offer an altogether different explanation for her non-appearance on the aforesaid dates, in her grounds of appeal. She states that during the pendency of divorce petition, since her mother, who was residing at Bhilai, was taken ill she was compelled to proceed to Bhilai to attend her and being away from Delhi, she could not personally attend the Court on the dates of hearing and had thus to depend on her lawyer only to keep herself apprised of the status of the case. She placed on record photocopies of relevant medical papers showing that on the dates indicated therein, her mother had to be admitted in the hospital for treatment of her ailment. It is, however, noticed vide Annexure A-6 (Colly) that the periods of illness and hospitalization of appellant's mother did not coincide with dates of hearing, i.e., 28th August, 2nd November, and 17th November, 1998 when she had gone unrepresented. Thus the illness of her mother could not be a ground to explain her absence or that of her counsel on the aforesaid dates. Moreover, since the ground of illness of her mother was never pleaded in the application under Order IX Rule 13 CPC and under Section 5 of the Limitation Act, the learned Trial Court, in no way, could have adverted thereto.

12. A perusal of Trial Court record shows that on 19th August, 1998 when the respondent's statement was partly recorded, the matter was adjourned to 25th and 26th August, 1998 for further recording of his statement. On 25th August, 1998, no proceedings could take place as the matter had to be adjourned at the request of appellant's counsel on her health ground. On 26th August, 1998 again further examination of the respondent could not take place as the parties' counsel requested for an adjournment on the ground that the parties could move for divorce by mutual consent. The case was thus adjourned to 27th August, 1998 and then to 28th August, 1998. Unlike on the previous dates of hearing, neither the appellant nor her counsel turned either on 28th August, 1998 or thereafter until passing of an ex-parte decree on 2nd December, 1998. The fact that the appellant's counsel had joined the opposite counsel to seek adjournments, as aforesaid, stating that there was a possibility of the parties moving for divorce by mutual consent indicates that talks for divorce by mutual consent between the parties would have started sometime after the case was adjourned to 25th and 26th August, 1998 after respondent's statement being partly recorded. According to the appellant, however, the respondent had approached her for the first time only on 25th August, 1998 for seeking divorce by mutual consent when she had told him that she required some time to think over the matter. On 26th August, 1998 the appellant's counsel joining the opposite counsel in making a request for adjourning the case to 27th August, 1998 could not have been there without instructions from the appellant. Though according to the appellant she had signed the joint petition for divorce by mutual consent on 26th August, 1998, the record shows that it was actually signed by her on 27th August, 1998 and filed before the Court on that very date with an application under Order VI Rule 17 CPC for converting the divorce petition into one under Section 13B(1) of the Hindu Marriage Act, 1955. Whether joint petition, accompanying the amendment application, was signed by the appellant on 26th August, 1998 or 27th August, 1998, it really appears to make not much of a difference as the case was got adjourned on 26th August and again on 27th August, 1998 at joint request of parties' counsel. The fact that the appellant had to sign the joint petition for divorce by mutual consent ?under duress? appears to have been pleaded in the applications simply to escape an inference that it was not on account of any compelling reason rather owing to having agreed to divorce by mutual consent that the appellant's counsel under instructions from her client stopped appearing in the case on 28th August, 1998 and thereafter. In normal course, if the appellant would have really been forced to sign the joint petition for divorce by mutual consent, as stated by her, she would have certainly informed her lawyer in that regard or she herself would have made it a point to appear in person before the Court to resist the respondent's move to get his petition converted into a petition under Section 13B(1) of the Hindu Marriage Act for divorce by mutual consent. She, however, neither informed her counsel in that regard nor took any steps whatsoever to ensure that the joint petition for divorce by mutual consent which was got signed by her ?under duress? could not be used by the respondent to her disadvantage. On the other hand, her counsel, joining the opposite counsel to make a request for adjourning the matter on 26th August, 1998 and then on 27th August, 1998 on the ground that parties were likely to move for divorce by mutual consent, shows that the plea of signing the application ?under duress? does not reflect correct position.

13. The learned Trial Judge has extensively dealt with the ground set out by the appellant to justify her absence or that of her counsel on 28th August, 1998 and thereafter before finding the same as unacceptable. The finding of the learned Trial Court in dismissing the appellant's applications turns out to be based on sound reasoning leaving no scope for any interference therewith. It was a case where the absence of the appellant or her counsel could not be attributed to any sufficient cause. It appears that having decided for a divorce, the appellant remained least bothered about the consequences that were likely to follow on account of her absence or of her counsel on 28th August, 1998 and thereafter. It does not appear to be a case of any negligence or misdemeanour on the part of appellant's counsel and the plea in that regard appears to have been raised simply with a view to derive an undue advantage on that account.

14. Finding no merit, the appeal is dismissed.