Delhi High Court
Archana vs Avanish on 17 July, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.318/2011 and C.M. No.13421/2011 (stay)
% 17th July, 2014
ARCHANA ......Appellant
Through: Mr. Jatin Sehgal, Advocate with Ms.
Naina Dubey, Advocate.
VERSUS
AVANISH ...... Respondent
Through: Mr. Saurabh Banerjee, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This first appeal is filed under Order 43(1)(d) of Code of Civil
Procedure, 1908 (CPC) against the impugned order of the trial court dated
22.2.2011 by which trial court dismissed the application under Order 9 Rule
13 CPC of the present appellant (respondent in the petition for judicial
separation in the court below). The effect of dismissal of the application
under Order 9 Rule 13 CPC is that the exparte decree of a judicial separation
dated 3.2.2005 will stand. I may note that there is pending a second petition
for divorce on the ground that appellant herein has not complied with the
FAO No.318/2011 Page 1 of 5
decree of divorce and that petition is being contested on merits and nothing
is observed herein with respect to the merits of the matter in the second
petition for divorce.
2. The case of the appellant herein was that she was never served
in the petition for judicial separation inasmuch as the appellant had shifted
from the Mumbai address where she was living i.e flat No.604-D, Dheeraj
Regency, Borivali (East), Mumbai. It is argued that the flat in question in
Mumbai was let out w.e.f 1.5.2004 and the appellant had shifted to
Bangalore. It is argued that consequently no summons were ever received
by the appellant in the judicial separation proceedings being petition
No.257/2004 (registered as HMA No.974/2009 in the Court at Delhi after
transfer from the Court at Haridwar).
3. A reading of the impugned order shows the following:-
(i) Though the appellant claimed that she had shifted to Bangalore,
neither there are necessary averments with respect to the address at
Bangalore and nor averments as to how and why the appellant herein had
shifted to Bangalore.
(ii) The case of the appellant was that the premises were let out to
the tenant at Mumbai and she had shifted to Bangalore, and if that was so,
appellant was required in the least to give the address at Bangalore which
FAO No.318/2011 Page 2 of 5
has admittedly not been done. To this I would like to add that not only the
address at Bangalore had not been filed, but also averments as to why did the
appellant shifted to Bangalore is not mentioned. Not only the appellant has
not given her residential address at Bangalore, surely if the appellant would
have shifted to Bangalore; she would have shifted to take some employment
inasmuch as the appellant is having the qualification of B.Ed., however, no
details are furnished as to what is the name of the employer and what was
the address of the employer at Bangalore.
4. Therefore, the court below in my opinion, has rightly come to a
conclusion that the case of the appellant not living at Mumbai address and
having shifted to Bangalore is quite clearly not believable.
5. Another conclusion of the court below, and with which I completely
agree, is that once the appellant was not served in the suit by the ordinary
method and was served my means of publication in a newspaper, the case as
put up by the appellant of how she came to know of the judicial separation
proceedings, had to have credibility. In this regard, trial court notes that
there is no credibility inasmuch as the appellant has not given sufficient
detailed facts as to how, when and in what circumstances she came to know
about the pending proceedings for judicial separation inasmuch as all that is
stated is that through some relative the appellant on 1.4.2006 came to know
FAO No.318/2011 Page 3 of 5
of the divorce proceedings. This aspect of knowledge through a relative was
also not stated initially but was brought in pursuant to an amendment which
was allowed in the application under Order 6 Rule 17 CPC filed after two
years and two months of filing the application under Order 9 Rule 13 CPC.
Therefore, the court below has held that the stand of the appellant is not
believable with respect to how she came to know of the exparte decree of
judicial separation.
6. At this stage, I would like to refer to the second proviso to
Order 9 Rule 13 CPC which was brought in by Act 104 of 1976 w.e.f
1.2.1977. The object of bringing in this proviso was that where court finds
and is satisfied that a defendant in a case is watching the proceedings
although the defendant has not been formally served by accepting of
summons, then, in such a case court need not set aside the exparte decree.
This second proviso of Order 9 Rule 13 CPC reads as under:-
"Provided also that no such decree shall be set aside merely on the
ground of irregularity in the service of summons if the Court is
satisfied that the defendant knew, or but for his willful conduct
would have known, of the date of hearing in sufficient time to enable
him to appear and answer the plaintiff's claim."
7. Learned counsel for the appellant sought to argue with respect
to some defect in the newspaper publication or the aspect that newspaper
publication was not sent to the appellant, however in my opinion, these
FAO No.318/2011 Page 4 of 5
arguments are covered against the appellant in view of second proviso to
Order 9 Rule 13 CPC which has been brought in by Act 104 of 1976.
8. There is hence no merit in the appeal, and the same is therefore
dismissed, leaving the parties to bear their own costs.
JULY 17, 2014 VALMIKI J. MEHTA, J.
Ne
