Smt.Saroj Sheel vs R.Sheel, Since Deceased Through ...
2011 Latest Caselaw 3448 Del

 

	IN THE HIGH COURT OF DELHI AT NEW DELHI



				 	

 				 	Judgment delivered on:   20.07.2011



MAT App.No.1/2004 & CM No. 18806/2010



	

Smt.Saroj Sheel						......Appellant.



		Through: Mr.  Arun Srivastava, Advocate.	 



	  Versus



 	R.Sheel, since deceased through

		his LRs. & Ors.					 ......Respondents

Through: Mr. Subhash Chandra, Advocate

for respondents 1(i) to (iii).

Mr.Jaswinder Singh, Adv. for UOI.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may No

be allowed to see the judgment?

2.  To be referred to Reporter or not?     		No	   	   

3.  Whether the judgment should be reported 	   No

      in the Digest?

							

KAILASH GAMBHIR, J. Oral:



1.	By this appeal filed under Order 43 rule 1 of the Code of Civil Procedure, 1908 the appellant seeks to challenge the judgment and decree dated 4.9.2003 whereby the application filed by the appellant under Order IX rule 13 of CPC for setting aside the ex parte decree of divorce dated 26.4.1974 was dismissed.  

2. Brief facts of the case that are relevant for deciding the present appeal are that the appellant Smt. Saroj Sheel had married Major R. Sheel (since deceased) on 7.07.1946 at Ludhiana and out of this wedlock three sons were born who are respondent nos.1 to 3. That Major R. Sheel died on 10.01.1991 and the appellant being his widow applied for family pension to the army authorities and due to absence of any response from the army authorities, the appellant's eldest son wrote to the authorities vide letter dated 14.07.1998, in response to which letter the Army authorities vide letter dated 28.07.1998 intimated him that as per their record, the appellant was divorced by Shri. R. Sheel in 1974 and that he had remarried Smt. Kamal who had also died on 15.01.1988 and therefore according to the Army authorities the appellant was not entitled to the family pension. The case of the appellant is that she had no knowledge of any divorce proceedings and the subsequent decree and no notice whatsoever was served upon her. She made many efforts to get the records from the Army authorities but failed and ultimately vide letter dated 23.6.2000, the Army authorities stated that the particulars were not available in their records. The appellant finally after much effort came to know that the said decree of divorce was obtained by Major R. Sheel from the court of Shri Jagdish Chandra A.D.J. Delhi on 26.04.1974 in petition no. 843/1973 and the said particulars were made available to the appellant only on 25.09.2001 after which on 27.10.2001 the appellant moved an application under Order IX Rule 13 for setting aside the ex-parte decree of divorce dated 26.04.1974. The said application was however dismissed by the learned trial court vide order dated 04.09.2003 holding that the same was barred by time. Feeling aggrieved with the same, the appellant has preferred the present appeal.

3. Arguing the present appeal, counsel appearing for the petitioner submits that the learned trial court has committed an error while passing the impugned judgment and decree as the learned trial court failed to appreciate that the appellant was prevented by sufficient cause to present the application under Order IX Rule 13 CPC for setting aside the ex parte decree within the stipulated period of 30 days. Counsel submits that the appellant was never served with the summons of the trial court and an ex parte decree of divorce was obtained by the husband by fraud. Counsel also submits that appellant was not aware that her husband had remarried on 9th May, 1977 and it is only when the appellant had approached the army authorities to claim family pension of her husband, that she learnt that the respondent had remarried some other lady. Counsel also submits that the appellant was never informed by the army authorities with respect to the ex parte divorce obtained by her husband and it was only when the appellant applied for the family pension after the death of her husband and made many representations before army authorities that she came to know about the said fact. Counsel also submits that in the said proceedings, first time the army authorities had given a copy of the divorce decree through which the appellant came to know the said fact. Counsel further submits that the appellant made many efforts to trace the name of the court and then obtained the exact information as to the name of the court which granted decree of divorce in favour of her husband and only thereafter the appellant took necessary steps to obtain the certified copy of the judgment and decree which was made available to her on 25th September, 2001 and thereafter she moved the application under Order IX Rule 13 CPC on 27th October, 2001. Counsel further submits that the appellant had disclosed sufficient reasons in the said application and in the application moved by her under Section 5 of the Limitation Act for the delay. Counsel further submits that learned trial court in para 15 of the impugned judgment has erroneously held that the appellant could not file the said application under Order IX Rule 13 CPC within a period of 30 days after having obtained the certified copy of judgment and decree on 25th September, 2001. Counsel further submits that due to the holidays in between on the 24th, 25th and 26th she could not have represented the said application except on 27th October, 2001.

4. I have heard the learned counsel for the appellant and the counsel representing the legal representative of the deceased respondent No.1 and UOI.

5. This appeal is taken up for hearing on the early hearing application moved by the counsel for the appellant.

6. In view of the fact that the ex parte decree of divorce was passed as back as on 26th April, 1974 by the court of Sh.Jagdish Chandra, ADJ Delhi thereby dissolving the marriage of the appellant with Major R.Sheel, since deceased, under Section 13(1)(vi) of the Hindu Marriage Act on the ground that she has renounced the world by entering into a religious order. The respondent was married to the appellant on 7.7.1946 at Ludhiana and three sons were born out of the said wedlock. Unfortunately the said respondent expired on 10th January, 1991, that is, after about 27 years from the date of the said decree of divorce. It is not in dispute that the respondent got remarried with Smt.Kamal which fact the appellant had learnt from the army authorities. The appellant has claimed that she came to know about the said divorce decree obtained by her husband when she had filed a writ petition before the Hon'ble Punjab and Haryana High Court to claim family pension on account of the demise of her husband who was a Major in the Army. As per the appellant, the impugned judgment and decree was supplied by the army authorities during the said proceedings to the appellant and thereafter the appellant found out which court granted the said decree of divorce. It is only thereafter that the appellant filed the certified copies of the same.

6. Although it cannot be believed that the appellant could not have contacted or met with her husband for so many years even after he got a decree of divorce in his favour. The appellant too has claimed that she had attended the last rites of her husband and it is very surprising that she could not see her husband's second wife and members of the family who also must have attended that ceremony.

7. Be that as it may, it is unfathomable that after having been supplied with the copy of the divorce decree, still the appellant could not come to know the name of the court and the exact date of the decision in the said ex parte divorce case. The appellant in condonation of delay application under Section 5 of the Limitation Act also has not given any details as to why she could not exactly come to know the name of the court and the exact date of the divorce decree. The learned trial court in para 15 of the impugned judgment has observed that the said application moved by the appellant is manipulated application and there is a collusion of all the family members and their children and the appellant wanted to extract the pension of her deceased husband which does not legally fall to her share. The learned trial court also found that no sufficient reasons were disclosed by the appellant in the application moved by her under Section 5 of the Limitation Act for condonation of delay.

8. It is a settled legal position that for preferring an application under Order IX rule 13, the party has to show sufficient cause for not being present at the time of proceedings when the ex parte decree was passed. Sufficient cause is essentially a matter of fact and depends on each case, and the courts have to be convinced that the applicant was actually and genuinely prevented from being present at the time of proceedings when the ex parte decree was being passed. Where sufficient cause is not shown, the courts cannot allow the ex parte decree to be set aside based on extraneous considerations, for example, in the present case that the appellant would be deprived from the pensionary benefits of the deceased husband. The decree being passed in 1974 and the application being preferred in 2001, sufficient cause for such a long time has to be shown. However, the application under Order IX rule 13 has also to be filed within 30 days of the knowledge of the ex parte decree. The appellant in the present case came to know about the ex parte decree on 23.6.2000 and then applied for the certified copy of the same which she got on 25.9.2001 and preferred the application on 27.10.2001, which is beyond the period of 30 days. An application under section 5 of the Limitation Act was also preferred by the appellant. However, the principles guiding section 5 limitation are also that for the delay in approaching the court, the applicant has to show that she had sufficient reasons for not preferring the application under Order IX in time. If the appellant does not show the sufficient cause and nor does the court of the first instance record the finding that the cause shown by the appellant is sufficient in not preferring the application in time, the court does not possess the power to arbitrarily condone the delay in the name of advancing substantial justice merely because the appellant is affected adversely by the said dismissal. The appellant in the present case has thus failed to show sufficient cause and the learned trial court was right in holding the application as time barred.

9. With the long passage of time that has passed since the decree of divorce and now that the husband against whom the said proceedings were filed also is no more, I do not find that there is anything that is left for adjudication of the present appeal further.

9. I do not find any irregularity or perversity in the impugned orders passed by the learned trial court. There is no merit in the present appeal and the same is hereby dismissed. The impugned judgment and decree dated 4.9.2003 is accordingly upheld.

KAILASH GAMBHIR, J

JULY 20, 2011

Bisht