Rajan Mehra vs Geetanjali Mehra
2016 Latest Caselaw 4925 Del

$~19
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Reserved on: 22.07.2016
                                                  Decided on: 29.07.2016

+      MAT.APP. (F.C.) 43/2016, CM APPL.12073/2016

       RAJAN MEHRA                                     ..... Appellant
                         Through: Mr. Sharad K. Agrawal, Advocate.
                         versus
       GEETANJALI MEHRA                             ..... Respondent

Through: Mr. Sahil Munjal, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MS. JUSTICE DEEPA SHARMA

MS. JUSTICE DEEPA SHARMA (JUDGMENT) %

1. This is a husband's appeal against an order dated 08.03.2016 whereby

his application under Order IX Rule 13 CPC for setting aside the ex-parte

order dated 13.12.2012 was dismissed. The order dated 13.12.2012 was

passed on the application of respondent/wife under Section 125 CrPC. The

maintenance was fixed at the rate of Rs. 15,000/- per month from the date of

petition and the litigation expenses of Rs. 33,000/- were also granted. The

main ground of challenge in his application was that he was not aware of the

pendency of the proceedings under 125 CrPC as he was never served of the

MAT.APP.(F.C) 43/2016 Page 1 said application. His further contention was that a fraud had been played

upon him. The plea before the trial court was that there was no vakalatnama

of the counsel who had allegedly appeared before the court and the whole

proceeding was a fraud.

That he came to know of this order only on 01.11.2013 when the file

was inspected. The necessity of inspecting the file arose as he was informed

by his relative at Chandigarh that warrants had been issued against him by a

Rohini Court and thereafter he engaged a counsel who inspected the file.

2. It is submitted that the appellant was never served of the proceedings.

The notice was initially issued at the Rajpura Road address, upon his father.

The respondent/wife had contended that the notice of the petition was issued

at Rajpura Road address where it was served upon his father. Sh. Ashok

Kumar, Advocate appeared on behalf of the respondent's father in the court

on 23.09.2011 and furnished the correct latest address of the respondent.

Notices were issued by the court at that address and he was also ordered to

be served by affixation by order dated 19.12.2011 through District Judge,

Chandigarh. When the appellant did not appear, the court proposed to

proceed under Order 5 Rule 20 CPC and the order of publication was made

on 07.03.2012 in Dainik Tribune Delhi and Chandigarh Editions and it was

MAT.APP.(F.C) 43/2016 Page 2 also ordered that the respondent be also served by a way of affixation.

However, on 24.05.2012, one counsel appeared on behalf of the husband

and sought adjournment on the ground that the matter was likely to be

settled. At his request, the court had adjourned the case for 17.07.2012.

However, on that date again a joint request for adjournment was made for

settlement and the matter was further adjourned to 29.08.2012. On that date

again the husband did not appear and on request, he was exempted on

medical grounds and matter was further adjourned. It was only on

03.09.2012, that on the statement of his counsel that he had no instructions

from the husband, the court proceeded ex-parte. Thereafter, the case was

adjourned for several dates but the husband did not appear.

3. The Family Court after hearing the parties and considering the

materials on record concluded that the appellant had sufficient information

and knowledge about pendency of the proceedings before it, that he had

intentionally not attended the court and that he had failed to give any

reasonable grounds for his non-appearance. He has based his findings on

the following facts:-

a) The appellant was having the knowledge of pendency of the case

which fact was evident from the service of summons at his Rajpura Road

MAT.APP.(F.C) 43/2016 Page 3 address, in response to which, on 23.09.2011, Mr. Ashok Kumar,

Advocate had attended the court, on the instructions of the family

members of the respondent and furnished the latest address of the

respondent. The application of Mr. Ashok Kumar, Advocate furnishing

the address is also on record.

b) The proceedings dated 23.09.2011 corroborated the report of the

process server dated 26.08.2011 and 20.09.2011 which recorded that the

respondent had shifted to house no. 6, Khuda Alisher, Chandigarh.

c) These facts conclusively proved that appellant was served at his

given address where his family members resided who never claimed that

they had disowned the respondent.

d) The notices sent at Chandigarh address were received back unserved.

e) The submissions made by counsel appearing on behalf of the

respondent on 24.05.2012 and on subsequent date till 03.09.2012 that

settlement talks were going on between the parties was corroborated

from the order dated 21.08.2012 passed by High Court of Punjab and

Haryana in Cr. No. Misc. 6400/2011. It recorded settlement efforts

between the parties before the Permanent Lok Adalat & Mediation

Centre of that court.

MAT.APP.(F.C) 43/2016 Page 4

f) There was no averment in the application that the said counsel had

been appearing in the court on behalf of respondent without his

instruction or that his presence was manipulated by petitioner.

g) The court also noticed that the application was time-barred since the

order proceeding the appellant ex-parte was passed on 03.09.2012 in the

presence of his counsel.

4. The Family Court findings are challenged before this court by the

present appeal on the ground that the court had acted in haste and had

failed to appreciate the basic fact that the main intention of the

respondent was to harass the appellant and extract more money from

him and that he has a good prima facie case which he would have

presented before the court had he been served of the petition. It is

further contended that the respondent is a liar. It is submitted that a

fictitious lawyer had given the address of Chandigarh and that the

husband/appellant had no knowledge of the case and that no

vakalatnama had been filed by any Advocate on his behalf which shows

that the lawyer was appointed by the respondent and has prayed that the

ex-parte order be set aside and he be given opportunity to contest the

application under Section 125 CrpC.

MAT.APP.(F.C) 43/2016 Page 5

5. It is also argued that the impugned order is contrary to the material on

record and that the Court has failed to appreciate that the respondent

succeeded in presenting sufficient cause in his favour for setting aside

the ex-parte order. Learned counsel for the respondent relied on the

decisions in Ramlal & Ors. vs. Rewa Coalfields Ltd., AIR 1962 SC 361;

Sarpanch, Lonand Grampanchayat vs. Ramgiri Gosavi & Anr., AIR

1968 SC 222; Surinder Singh Sibia vs. Vijay Kumar Sood, AIR 1992

SC 1540; and Oriental Aroma Chemical Industries Limited vs. Gujarat

Industrial Development Corporation & Another, (2010) 5 SCC 459.

6. In the cited cases, the Courts observed that "sufficient cause" means

that the party had not acted in a negligent manner. That in turn depends

on the facts and circumstances of the case where party has not acted

bona fidely and diligently or had remained inactive, in such cases, it

cannot be said that the parties had sufficient cause. To determine

whether a party that approaches the court has sufficient cause, the facts

and circumstances of each case should be examined to enable the court

concerned to exercise its discretion. The appellant has also relied on the

findings in cases of Arjun Singh vs. Mohindra Kumar & Ors., AIR

1964 SC 993; Brij Indar Singh vs. Lala Kanshi Ram & Ors., AIR 1917

MAT.APP.(F.C) 43/2016 Page 6 P.C. 156; Manindra Land and Building Corporation Ltd. vs. Bhutnath

Banerjee & Ors., AIR 1964 SC 1336; and Mata Din vs. A. Narayanan,

AIR 1970 SC 1953, wherein the difference between "sufficient cause"

and "good cause" was explained. It is further contended that the Court

must bear in mind the object of delivering substantial justice to all the

parties while deciding whether party had a sufficient cause or not and the

technicalities of law should not prevent the court from denying

substantial justice and has relied on State of Bihar & Ors. vs.

Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal vs.

Shyamlal, AIR 2002 SC 100; Davinder Pal Sehgal & Anr. vs. M/s

Pratap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram

Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR

2002 SC 1201; Kaushalya Devi vs. Prem Chand & Anr. (2005) 10 SCC

127.

7. It is contended that the notices were never served upon the

respondent and the presumption of service is rebuttable. The appellant

has placed reliance on Dr. Sunil Kumar Sambhudayal Gupta & Ors. vs.

State of Maharashtra, JT 2010 (12) SC 287 and Gujarat Electricity

Board & Anr. vs. Atmaram Sungomal Poshani, AIR 1989 SC 1433.

MAT.APP.(F.C) 43/2016 Page 7

8. On the other hand, learned counsel for the respondent argued that the

facts and circumstances show that the appellant was very well aware of

the pendency of the proceedings under Section 125 CrPC. The parties

had last resided at Rajpura Road-Civil Lines where the notices were

served by the Court and the various reports show that the respondent had

intentionally avoided to receive the summons and his family members,

including his father and grandmother refused to take the summons and

informed the process server that he was staying at Chandigarh. They had

also given the appellant's Chandigarh address. The appellant's contention

therefore, that some fictitious lawyer had attended on behalf of his family

members and furnished wrong address, is without basis. Besides, the

court also issued summons at the Chandigarh address and a lawyer had

attended court proceedings on the appellant's behalf and made

submissions which the court found to be correct and supported by the

order of the High Court of Punjab and Haryana.

9. It is submitted that the facts and circumstances therefore clearly shows

that the appellant was duly served and was aware of pendency of the

proceedings before the family court and he had intentionally and

deliberately not attended the proceedings.

MAT.APP.(F.C) 43/2016 Page 8

10. We have given our due consideration to the rival contentions and

perused the record. The record clearly shows that the parties had last

resided at Rajpura Road, Civil Lines and the processes were sent to that

address, the appellant's family members refused to receive the notice.

They informed the process server that respondent had shifted to

Chandigarh. Not only this, one lawyer, Mr. Ashok Kumar, had appeared

in the court on behalf of the father of the appellant and moved an

application in which he gave the Chandigarh address of the appellant.

After repeated summons were sent to Chandigarh's address, an Advocate

attended the court on behalf of appellant to inform the court about certain

settlement proceedings going on in Chandigarh.

11. In view of these facts of the case, it cannot be said that the petitioner

was unaware of the pendency of the proceedings under Section 125

CrPC. The purpose of the service is to inform the opposite party of the

proceedings taken up in court by a party against him. If a party is

sufficiently aware of pendency of such proceedings in a court of law

against him, it is his duty to be diligent and careful and take steps to

attend those proceedings. If he does not do so and subsequently contests

that he was unaware of such proceedings, the burden is upon him to

MAT.APP.(F.C) 43/2016 Page 9 prove such fact. Here in this case, the appellant's family members, were

aware of the proceedings pending before this court. They first informed

the process server that he had shifted to Chandigarh and also gave the

address and then through an Advocate moved an application giving the

same address of the respondent of Chandigarh. It is not that the

appellant was disowned by his parents or was not on speaking terms or

that they were inimical towards him. The appellant nowhere says that his

family members had reasons to not inform him about the visit of process

server with summons to him at their address. Also, the appellant's

contention is that the address given by the Advocate was a fictitious

address. He thereby tried to show that he was not living in Chandigarh at

the given address. It was for him then to show, if he was not living at

the Delhi address and also not living at Chandigarh, what exactly was

the place he resided in. It is also a fact that during this period he was

participating in conciliation proceedings under the order of High Court

of Punjab & Haryana. Furtherance, the appellant offered to settle the

disputes with an amount of `13 lakhs to the respondent, during bail

proceedings before the Punjab & Haryana High Court. He clearly was

served through his father, the adult male member of his family at the

MAT.APP.(F.C) 43/2016 Page 10 address where he last resided with respondent, by affixation at his

Chandigarh address. As a result, an Advocate marked his attendance on

his behalf. In the light of these facts, we find no infirmity in the

impugned order. The appeal has no merit. The same is therefore

dismissed.

DEEPA SHARMA (JUDGE)

S. RAVINDRA BHAT (JUDGE)

JULY 29, 2016 sapna

MAT.APP.(F.C) 43/2016 Page 11