Rahul Dubey vs Vibha Dubey
2011 Latest Caselaw 6332 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on:      01.12.2011
                             Judgment delivered on: 23.12.2011

+       CM(M) 1469/2009

Rahul Dubey                                ......Petitioner
                                  Through: Mr. Jagjit Singh, Advocate.

                             Vs.
Vibha Dubey                                           ......Respondent
                             Through: Ms. Jyoti Taneja, Advocate

        CM(M) No.633/2010

Rahul Dubey                                                ......Petitioner
                                   Through: Mr. Jagjit Singh, Advocate.

                             Vs.
Vibha Dubey                                           ......Respondent
                             Through: Ms. Jyoti Taneja, Advocate

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

KAILASH GAMBHIR, J.

1. This common order shall dispose of two petitions

C.M.(M) No. 1469/2009 and CM No. 633/2010 filed by the

petitioner husband under Article 227 of the Constitution of India.

2. By way of CM(M) No. 1469/2009, the petitioner has

challenged the order dated 4.11.2009 whereby the learned Trial

Court had set aside the ex parte judgment and decree dated 8 th

December, 2005 while deciding the application moved by the

respondent under Order IX Rule 13 read with Section 151 CPC

while in CM(M) No. 633/2010, the petitioner has challenged the

order dated 12th March, 2010 passed by the learned Trial Court

thereby recalling the order dated 6.4.2005 whereby the Court

had closed the right of the respondent to cross-examine the

three witnesses examined by the petitioner in support of his

case filed under Section 13(1)(ia) of the Hindu Marriage Act.

3. To appreciate the controversy involved in both these

petitions, it would be necessary to give the background of the

facts of the case. The petitioner husband had filed a petition for

divorce under Section 13(1)(ia) of the Hindu Marriage Act

against the respondent wife which was pending before the

learned Civil Judge (Sr. Division) at Ghaziabad, U.P. being

registered as O.S. 532/03. In the said divorce petition, the

respondent had appeared and filed a written statement and

based on the pleadings of the parties, the learned Civil Judge

(Sr. Division) Ghaziabad had framed issues and the case was

fixed for the evidence of the petitioner. In the evidence, the

petitioner had filed affidavits of three witnesses, but these three

witnesses were not cross-examined by the respondent despite

grant of opportunities with the result that the said Court vide

order dated 6.4.2005 closed the evidence of the petitioner by

closing the opportunity of the respondent for cross-examination

and the case was accordingly adjourned for the evidence of the

respondent. It is during this period the Civil Appeal

No.2579/2005 filed by the respondent challenging the order of

the Allahabad High Court came up for consideration and vide

order dated 7.4.2005 the Hon'ble Supreme Court directed stay

of further proceedings before the Ghaziabad Court and vide

orders dated 11.4.2005, the Hon'ble Supreme Court directed

transfer of the said divorce petition from Ghaziabad Court to

Matrimonial Court at Delhi. Acting on the said direction given by

the Hon'ble Supreme Court, the Ghaziabad Court transferred

the case file of the said divorce case to the learned District

Judge, Delhi and on the order passed by the learned District

Judge, Delhi the matter was assigned to the Court of Shri K.S.

Pal, Additional District Judge, Central Delhi. On 10.5.2005

counsel representing the petitioner had appeared before the

transferee Court but none appeared on behalf of the respondent

and due to the non-appearance of the respondent, the transferee

Court directed notice to the respondent, returnable on 1.6.2005.

On 1.6.2005 the petitioner again appeared with his counsel but

nobody had appeared from the side of the respondent, but since

the Presiding Officer was on leave on that date, therefore, the

matter was directed to be put up for 5.7.2005 for further

proceedings. On 5.7.2005, the counsel for the petitioner had

again appeared at the first call while nobody was present from

the side of the respondent and the Court accordingly directed

the matter to be put up at 12.00 noon. The matter was again

taken up by the Court at 1.00 p.m. when again the same was

directed to be put up at 2.30 p.m. The matter was taken up yet

again at 3.00 p.m. when also only the counsel for the petitioner

had appeared, and none appeared from the side of the

respondent. On considering the absence of the respondent as

intentional, the learned transferee Court after having gone

through the direction given by the Hon'ble High Court of

Allahabad, directing to hold day to day proceedings of the said

case and also considering the fact that the respondent was well

aware of the fact of transfer of the said case from Ghaziabad to

Delhi Courts, held that there was no need to issue any Court

notice to the respondent as the respondent was held to have

deemed knowledge of the pendency of the said case before the

transferee Court. The learned transferee Court after taking into

consideration the directions given by the Apex court vide orders

dated 11.4.2005 directing the transferee Court to proceed

further from the stage at which the case was before the Civil

Judge at Ghaziabad, adjourned the matter for 3.8.2005 for the

evidence of the respondent. On 3.8.2005, the Presiding Officer

was on leave and the matter was adjourned to 12.8.2005 but

again on 12.8.2005 the Presiding Officer was on leave and the

matter was adjourned to 16.8.2005. On 16.8.2005, none was

present for the respondent and the matter was again adjourned

to 3.9.2005 for the evidence of the respondent giving the

respondent last opportunity, but on 3.9.2005, since nobody had

appeared on behalf of the respondent, therefore, the learned

Court had closed the evidence of the respondent and fixed the

matter for 30.9.2005 for final arguments. On 30.9.2005, ex

parte arguments were heard by the learned ADJ and the matter

was fixed for orders for 13.10.2005 and finally on 8.12.2005 the

learned ADJ allowed the said divorce petition filed by the

petitioner whereby the marriage between the parties was

dissolved on the ground of cruelty under Section 13(1)(ia) of the

Hindu Marriage Act.

4. The said ex parte decree dated 8.12.2005 was sought

to be set aside by the respondent by moving an application

under Order IX Rule 13 read with Section 151 CPC along with

Section 5 of the Limitation Act wherein she pleaded ignorance

about the passing of the said ex parte decree as no Court notice

was received by her from the transferee Court. The respondent

claimed her knowledge about the said ex parte decree in the last

week of February, 2007, which fact she came to know from her

counsel Mr. Suman Pal, who was earlier representing her at

Ghaziabad Courts. Vide order dated 4.11.2009 the learned ADJ

set aside the said ex parte judgment and decree dated 8.12.2005

and feeling aggrieved by the same, the petitioner has preferred

the present CM(M) No. 1469/2009.

5. After the setting aside of the ex parte decree, the

respondent had moved an application under Section 151 CPC

thereby seeking recalling of the order dated 6.4.2005 whereby

the transferor Court had closed the right of the respondent to

cross-examine three witnesses adduced by the petitioner in

support of his divorce case. Vide orders dated 12th March, 2010

the learned ADJ recalled the said order dated 6.4.2005 as the

Court felt that it will result in grave miscarriage of justice if the

respondent is deprived of her valuable right to cross-examine

the said three witnesses adduced by the petitioner. Feeling

aggrieved by the said order dated 12th March, 2010 the

petitioner has preferred the present CM(M) No. 633/2010.

6. Assailing both the said orders, Mr. Jagjit Singh,

learned counsel representing the petitioner submitted that the

respondent was not entitled to any fresh notice from the

transferee Court as the said case was transferred from

Ghaziabad Court to Delhi Court on the transfer petition filed by

the respondent herself. Counsel further submitted that when the

petitioner could cause appearance before the transferor Court,

then what could have prevented the respondent to appear

before the transferee Court. Counsel further submitted that the

absence of the respondent before the transferee Court is

willful and the petitioner cannot be made to suffer because of

negligent conduct of the respondent. Counsel further submitted

that the petitioner got remarried after waiting for the statutory

period of limitation of filing the appeal to expire and this fact of

remarriage alone should have weighed upon the learned Trial

Court to reject the application moved by the respondent under

Order IX Rule 13 CPC. Counsel further submitted that after the

order dated 11.4.2005 was passed by the Hon'ble Apex Court,

the matter was taken up by the Ghaziabad Court on 19.4.2005

and the said Court after having gone through the order passed

by the Hon'ble Supreme Court directed the transfer of the

matter before the District Judge at Delhi. Counsel further

submitted that while passing the said order, the Ghaziabad

Court also directed both the parties to appear before the

matrimonial Court at Delhi on 12.5.2005. Counsel further

submitted that in the order passed by the Hon'ble Supreme

Court no such direction was given for directing fresh notice on

the parties. Counsel also submitted that by addition of proviso to

Order IX Rule 13 CPC after amendment of 1976, the decree

cannot be set aside by the Court merely on the ground that there

has been an irregularity in the service of summons, if it is

satisfied that the defendant had notice of the date of hearing and

had sufficient time to appear and answer the plaintiff's claim.

The contention raised by the counsel for the petitioner was that

the respondent had complete knowledge about the transfer of

the said case from Ghaziabad to Delhi Courts and once she had

not chosen to appear before the Delhi Court, passing of the ex

parte decree by the Delhi Court was an inevitable consequence

as the Delhi Court was not required to direct fresh notice on the

respondent. Counsel also submitted that no sufficient cause was

shown by the respondent for condonation of delay or for seeking

the setting aside of the ex parte decree and the respondent was

not entitled for exercise of any discretion by the Court in her

favour as her negligence and callous conduct was writ large to

disentitle her to reopen the decree of divorce.

7. Arguing in CM(M) No.633/2010, counsel submitted

that the learned Trial Court had also passed another illegal

direction vide order dated 12.3.2010 recalling the order dated

6.4.2005 by which order the right of the respondent to cross-

examine the three witnesses adduced by the petitioner was

closed. The contention raised by the counsel for the petitioner

was that the Hon'ble Supreme Court while transferring the

petition had given clear direction that the proceedings of the

case shall start from the stage at which it was pending on the

date of the order i.e. 11.4.2005. The contention raised by the

counsel for the petitioner was that the order dated 12.3.2010

passed by the learned Trial Court is in violation of directions

given by the Apex Court and, therefore, the said order deserves

to be set aside. In support of his arguments, counsel placed

reliance on the following judgments:-

1. Sunil Poddar and ors -vs- Union Bank of India; (2008) 2 SCC 326

2. Parimal -vs- Veena alias Bharti; (2011) 3 SCC 545

3. Balwant Singh -vs- Jagdish Singh & Ors.; V(2010) SLT 790

4. Sujata Udai Patil -vs- Udai Madhukar Patil; 2007(1) RCR Civil 404

8. Refuting the contentions of the counsel for the

petitioner, counsel for the respondent submitted that neither

the respondent nor her counsel was present before the

Ghaziabad Court on 19.4.2005 and the Ghaziabad Court had

given the directions for the transfer of the said case before

Courts at Delhi in compliance of the direction given by the Apex

Court. Counsel further submitted that when the said matter was

taken up by learned ADJ, Delhi Courts on 10.5.2005, the court

directed notice on the respondent, returnable on 1.6.2005.

Counsel further submitted that the learned Trial Court ignoring

its own direction, all of a sudden changed its mind and felt that

there was no need to serve Court notice on the respondent as

the respondent was deemed to have knowledge of the case and

accordingly vide order dated 5.7.2005 proceeded ex parte

against the respondent. Counsel further submitted that the

counsel for the respondent who was handling her case had no

knowledge of the said case being transferred to the Delhi Court,

therefore, she could not have caused her appearance before the

said transferee Court and, hence the grant of ex parte judgment

and decree by the transferee Court was per-se illegal. Counsel

further submitted that in the event of transfer of the case from

one Court to another, it is imperative on the part of the

transferee Court to issue notice and it is through such a notice

only the respondent could gain knowledge about the transfer of

the said case to a particular Court at Delhi. Counsel further

submitted that Chapter 13 Rule 4 of Delhi High Court Rules also

provides for issuance of such notice to both the parties in case of

transfer. Based on these submissions, counsel for the respondent

submitted that the learned Trial Court has rightly set aside the

ex parte decree vide order dated 4.11.2009.

9. Advancing arguments in opposition to CM(M) No.

633/2010, counsel submitted that no fault can be found by this

Court in the order dated 12.3.2010 passed by the learned ADJ

thereby recalling order dated 6.4.2005 as the direction given by

the Hon'ble Supreme Court vide order dated 11.4.2005 that the

petition shall be proceeded with from stage at which it was

before the transferor Court could not have come in her way to

seek recalling of the order dated 6.4.2005. The contention

raised by the counsel for the respondent was that the said order

of the Hon'ble Supreme Court could not have forestalled the

remedy of the respondent to seek recalling of the order dated

6.4.2005 and it was for the learned Trial Court to have satisfied

itself that sufficient reasons were disclosed by the respondent to

seek recalling of the order dated 6.4.2005. Counsel thus

submitted that the counsel for the petitioner has misconstrued

the direction given by the Apex Court vide order dated

11.4.2005 as if the said order had closed all the legal doors of

the respondent to seek recalling of the order dated 6.4.2005 to

cross examine three witnesses adduced by the petitioner.

Counsel also submitted that the respondent was pursuing her

remedy for the transfer of the said case first by filing necessary

transfer petition before the Allahabad High Court and then by

challenging the order of the Allahabad High Court before the

Supreme Court and, therefore, the learned Ghaziabad Court

should have awaited the outcome of the decision of the Apex

Court in the transfer case instead of proceeding in the matter to

record the evidence of the petitioner. Counsel also submitted

that principles of natural justice also warranted recalling of the

said order dated 6.4.2005 otherwise the respondent would not

have got fair opportunity to present her case. Based on these

submissions, counsel submitted that the order dated 12.3.2010

passed by the learned Trial Court is well reasoned order and the

same does not in any manner violate the directions given by the

Apex Court. In support of his arguments, counsel for the

respondent has placed reliance on the following judgments:

1. Sushil Kumar Sabharwal -vs- Gurpreet Singh & Ors; (2002) 5 SCC 377

2. Prakash Chander Manchanda -vs- Janki Machanda; (1986) 4 SCC 699

3. Bhanu Kumar Jain -vs- Archana Kumar & Anr. (2005) 1 SCC 787

10. I have heard learned counsel for the parties at

considerable length and given my thoughtful consideration to

the pleas raised by them. The Court has also carefully gone

through the Trial Court records produced before the Court.

11. Indisputably, the divorce proceedings from Ghaziabad

Court to Matrimonial Court at Delhi were transferred pursuant

to the direction given by the Hon'ble Apex Court vide order

dated 11.4.2005 while disposing of Civil Appeal No. 2579/2005

filed by the respondent. After the said order passed by the

Hon'ble Supreme Court, the matter was also fixed before the

Ghaziabad Court, which was taken up by the Court on 19.4.2005

when the Ghazaibad Court after having gone through the

direction given by the Apex Court for the transfer of the said

case to the Delhi Court gave direction for placing the said case

before the Delhi Court in compliance of the direction given by

the Apex Court. The matter was thereafter received by the

District Judge, Delhi and the same was assigned by the District

Judge to the Court of Shri K.S. Pal, Additional District Judge,

Delhi, which was taken up by the Court of Shri K.S. Pal,

Additional District Judge, Delhi on 10th May, 2005. On 10th May,

2005 Mr. Rakesh Upadhyay, counsel representing the petitioner

had appeared, but nobody appeared from the side of the

respondent and considering the fact that the said case was

received by transfer by the Delhi Court from the Family Court

Ghaziabad, the Court directed Court notice to be issued to the

respondent, returnable for 1.6.2005. On 1.6.2005 the learned

Presiding Officer was on leave and the case was adjourned for

further proceedings on 5.7.2005. On 5.7.2005 the matter was

passed over by the Court thrice and finally it was taken up at

3.00 p.m. The Court then recalled its own order dated 10.5.2005

and took a view that since the respondent was well aware about

the transfer of the case to the Matrimonial Court in Delhi

therefore her non-appearance before the Delhi Court was

intentional and the Court held that there was no need to issue

any Court notice to the respondent as she was deemed to have

knowledge about the pendency of the said matter before the

Delhi Court. The Court then adjourned the matter for the

evidence of the respondent after having gone through the order

dated 11.4.2005 passed by the Hon'ble Supreme Court giving

direction to the Matrimonial Court to proceed with the matter

from the stage it was before the Ghaziabad Court. On account of

the failure of the respondent to appear in the said case and to

lead her evidence the learned ADJ Delhi finally passed a decree

of divorce under Section 13(1)(ia) of the Hindu Marriage Act

vide order dated 8.12.2005.

12. This Court is totally baffled and flabbergasted to find

that the learned ADJ reversed its own decision dated 10 th May,

2005, when the Court notice was directed on the respondent by

taking a view that there was no need to direct Court notice as

the respondent can be taken to have deemed knowledge of the

said transfer of the case. This order dated 5.7.2005 was ex facie

illegal order not only because it had recalled its earlier order

dated 10th May, 2005 for no reasons but also because the Court

did not appreciate the fact that the said case was transferred

from one State to another State and, therefore, in the absence of

appearance of anyone of the parties the Court notice for the

absentee party was imperative. The rules of natural justice

mandate that the party should be put to notice after the case has

been transferred from one court to the other. What could have

been more fatal to the respondent wife to seek transfer of the

case at Delhi Court and then not be able to appear due to the

injudicious approach of the learned trial court. Once the

Supreme court has allowed the transfer petition, the transferee

court should have put the parties to notice as the rules of fair

play and natural justice demand.( Payal Ashok Kumar Jindal vs.

Ashok Kumar Jindal(1992)3SCC116). It also cannot be lost sight

of the fact that earlier the Ghaziabad Court vide orders dated

19th April, 2005 had given the directions for placing the said

matter before the Delhi Court on 12.5.2005 and then on the

application moved by the petitioner, fresh direction vide orders

dated 26.4.2005 was given by the Civil Judge, Ghaziabad for

placing the matter before the Delhi Court in terms of the

directions given by the said Civil Judge on 19.4.2005.

Surprisingly the said matter was not placed before the Delhi

Court on 12.5.2005 but was taken by the concerned matrimonial

Court in Delhi on 10.5.2005. The Trial Court in the impugned

order dated 4.11.2009 has rightly observed that it was

mandatory on the part of the matrimonial Court at Delhi to issue

Court notice to the applicant/respondent informing her the

actual date of hearing. Learned Trial Court had also drawn an

analogy from Chapter 13 Volume 1 of the Delhi High Court Rules

which deals with the rules governing transfer of suits and

appeals. Learned Trial Court further placed reliance on other

judgments of the Apex Court on the proposition of law applicable

to the facts of the case involved and this Court does not find any

perversity or illegality in the reasoning given by the learned

Trial Court to set aside the ex parte judgment and decree of

divorce passed by the predecessor Judge of the same Court. In

the absence of service of any Court notice, there was no fault on

the part of the respondent to assume that she would receive a

Court notice from the transferee Court, more particularly when

the respondent herself was residing at a far off place at Varanasi

(U.P.) and was, therefore, not expected to have chased the said

case from one Court to another after its transfer to Delhi Court

as it cannot be overlooked that in Delhi itself at a given point of

time at least 6 to 8 Additional District Judges deal with the

jurisdiction in matrimonial cases. The learned Trial Court also

did not appreciate that the said matter was being contested by

the respondent before the Ghaziabad Court and there could not

have been any perceptible reason because of which the

respondent would have avoided to contest the said divorce case

filed by her husband, more particularly when the respondent

herself sought transfer of the case from the Ghaziabad Court to

Delhi Courts. It has been a consistent view of the Supreme Court

and various High Courts that matrimonial disputes should be

decided by the Courts on merits and due care is required to be

taken by the Courts that one of the interested parties may not

walk away with the ex parte decree to the detriment and

prejudice of the other party, which has exactly happened in the

present case.

13. To deal with the next contention of the counsel for the

appellant it would be relevant to reproduce Order IX rule 13 as

under:

"13. Setting aside decree ex parte against defendant.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that the was sufficient cause for his failure to appear when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to

costs payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside as against all or any of the other defendants also:

Provided also that no such decree shall be set aside merely on the ground of irregularity of service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time it enable him to appear and answer the plaintiff's claim.

Explanation I.-Where a summons has been served under Order V, rule 15, 01, adult male member having an interest adverse to that of the defendant in the subject, matter of the suit, it shall not be deemed to have been duly served within the meaning of this rule.

Explanation II.-Where there has been an appeal against a decree passed ex party under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree." (w.e.f. 1-10-1983)

14. The contention of the counsel for the appellant that

the proviso of Order IX rule 13 envisages that a decree cannot

be set aside if the court is satisfied that the defendant had the

notice of the date of hearing is without any force as what is

contemplated by this proviso is that the defendant has the

knowledge of the date of hearing that too where the applicant

complains about the irregularities in the service of summons

which is not the situation in the case at hand to bar the remedy

available to the respondent under order IX rule 13. The

judgments relied upon by the counsel for the appellant canvass

the legal proposition that there is a bar to entertain the

application under the said provisio where the Court is satisfied

that the defendant knew or but for his willful conduct would

have known the date of hearing in sufficient time to enable him

to appear in the case. There can be no dispute with the above

said legal position but the same would be of no help to the facts

of the present case. The respondent in the present case has

shown sufficient reasons for her non-appearance before the

transferee court and thus the case in hand does not fall within

the ambit of the proviso, and thus the judgments cited by the

appellant would not be applicable to the facts of the case at

hand.

15. In the light of the aforesaid discussion, this Court

does not find any merit in the petition C.M.(M) No. 1469/2009

and the same is hereby dismissed.

16. Dealing with the other petition filed by the petitioner

i.e. CM(M) No. 633/2010, this Court does not subscribe to the

arguments canvassed by the counsel for the petitioner before

this Court that the learned Trial Court has reopened the case by

giving fresh opportunity to the respondent to cross-examine

three witnesses adduced by the petitioner. The Supreme Court

vide order dated 11.4.2005 had given direction to the transferee

Court to proceed with the matter from the stage at which it was

before the earlier Court and by no stretch of imagination this

can be construed to mean that the said order passed by the

Hon'ble Apex Court foreclosed the right of the respondent to

move an application for recalling the order dated 6.4.2005, to

cross-examine three witnesses adduced by the petitioner before

the transferee Court. The Court cannot be oblivious of the fact

that on 6.4.2005, the respondent sought an adjournment before

Ghaziabad Court on the ground that she had filed a Special

Leave Petition against the order of the Allahabad High Court,

but the learned Civil Judge at Ghaziabad without waiting for the

orders of the Supreme Court gave the directions to the

respondent to cross-examine the witnesses produced by the

petitioner at 2.00 p.m. and when at 2.00 p.m. the counsel for

the respondent was not present the learned Judge had closed the

right of the respondent to cross-examine the said witnesses. It

also cannot be lost sight of the fact that on 7.4.2005, the Hon'ble

Supreme Court had stayed further proceedings in the said

divorce matter pending before the Ghaziabad Court and finally

on 11.4.2005 the Supreme Court directed transfer of the said

petition from Ghaziabad Court to Matrimonial Court at Delhi.

The learned Trial Court in para 7 of the impugned order has

rightly observed that the principles of natural justice require

that adequate and fair opportunity is to be granted to all the

parties to a litigation for producing whatever documents or

evidence which may be in their possession. The learned Trial

Court on the application moved by the respondent under Order

IX rule 13 CPC had already set aside the ex parte judgment and

decree dated 8.12.2005 and, therefore, there was nothing

wrong if the Court had given a fresh opportunity to the

respondent to cross-examine the three witnesses earlier adduced

by the petitioner in support of his case. The absence of

opportunity of cross-examination to the respondent would have

certainly caused serious prejudice to the rights of the

respondent as without the cross-examination of these three

witnesses, their evidence would have been held against the

respondent being unchallenged and unrebutted.

17. In the light of the aforesaid position, this Court does

not find any infirmity, illegality or perversity in the impugned

order dated 12th March, 2010 passed by the learned Trial Court

giving opportunity to the respondent to cross-examine the said

three witnesses, whose examination-in-chief was completed by

the petitioner before the Civil Judge, Ghaziabad.

18. In the light of the aforesaid discussion, there is no merit in

the present two petitions and the same are hereby dismissed.

DECEMBER 23,2011                         KAILASH GAMBHIR, J.
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