Smt. Sunita Rani Wife Of Shri ... vs Chuhar Singh
2021 Latest Caselaw 5109 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                       ON THE 29th DAY OF OCTOBER, 2021
                                    BEFORE




                                                                                       .
                HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA





                FIRST APPEAL FROM ORDER No.32 OF 2021.
          Between:-





          SMT. SUNITA RANI WIFE OF SHRI NARAIN DEV, DAUGHTER
          OF SHRI MOHAN LAL, PRESENTLY RESIDING AT HOUSE
          NO.762, VILLAGE KISHANGARH, NEAR PUNJAB NATIONAL
          BANK, CHANDIGARH-160101.





                                                                        .....APPELLANT
          (BY MS. NEELAM KAPLAS, ADVOCATE)
          AND

          NARAIN DEV SON OF SHRI NAND LAL, RESIDENT OF

          VILLAGE DAKOLAR, TEHSIL RAMPUR BUSHAHR, DISTRICT
          SHIMLA, H.P.

                                                                      ......RESPONDENT
          (NONE)


          1
              WHETHER APPROVED FOR REPORTING ?      Yes.

                           This appeal coming on for admission after notice this day, the Court
               passed the following :




                                              JUDGMENT

The instant appeal, under Order 43 Rule 1 (d) of the

Code of Civil Procedure, has been maintained by the appellant

for quashing and setting aside the impugned order dated

10.7.2019, passed by the learned District Judge, Kinnaur, Civil

Division at Rampur Bushahr, in CMP No.358 of 2016 with a

prayer to allow the instant appeal.

2. Brief facts giving rise to the present appeal as per the

appellant-respondent is that an application, under Order 9 Rule

13 of the Code of Civil Procedure for setting aside the ex-parte

judgment dated 13.3.2012, vide which, ex-parte divorce decree

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

has been passed by the learned District Judge, Kinnaur at

Rampur Bushahr. In the said petition, the present petitioner,

who was respondent in the learned Trial Court (hereinafter

.

referred to as 'wife') that she was not duly served, summons

were issued through Speed Post, on the wrong address, as the

wife was never resided on the given address. This fact was very

much in the knowledge of the husband. The husband got

procured false and frivolous reports on the summons with the

assistance of Process Serving agency. The wife was residing in

House No.1638 near Killa Manimajra, Chandigarh, since the day,

when she was hurl out of the matrimonial house by her husband.

The wife maintained a complaint before the concerned Police

Station, Panchkula, regarding threatening of life by her husband

to withdraw the execution proceedings instituted by her for

maintenance order. Thereafter, the wife came to the house of

her husband and asked her to withdraw the application filed by

her against him before the Police, as he has already contracted

second marriage after obtaining ex-parte decree of divorce on

13.3.2012. Thereafter, the wife approached the learned Court

below and maintained the instant petition for setting aside the

ex-parte judgment. The learned Trial Court dismissed the

application of the wife, under Order 9 Rule 13 of the Code of Civil

Procedure for setting aside the ex-parte judgment, dated

13.3.2012.

3. Feeling aggrieved, the impugned order dated

10.7.2019, passed by the learned First Appellate Court, wife

maintained the instant appeal.

4. Ms. Neelam Kaplas, learned counsel for the appellant

has argued that the wife was not residing at the given address,

where the so called service was effected, on the basis of

.

presumption that the Speed Post/Registered letter has been

delivered, as the time of 30 days' has been elapsed. She has

argued that the wife was not knowing this fact and only to get

the ex-parte decree of divorce. Even though, the learned Trial

Court without application of mind that presumption should not

have been taken in divorce petition, and hence proceeded ex-

parte against the wife and so, the order of ex-parte is required to

be recalled after setting aside the ex-parte decree of judgment.

In support of her arguments, she has relied upon the judgment in

Jagdeep Singh vs. Chuhar Singh, passed by the Hon'ble

High Court of Punjab & Haryana at Chandigarh, decided on

17.1.2018, on this aspect.

5. After hearing learned counsel for the appellant and

going through the entire record of the case carefully, which has

come on record, this Court finds that Speed Post/Registered

letter was sent, on the given address of the wife, though earlier

the wife was residing, but thereafter she was not residing on the

said address, which has come on record from the evidence, the

presumption has been taken that she has been served, which is

incorrect, when there is a divorce petition. The grant of decree

of divorce petition on the basis of just presumption of service

and in these circumstances, when the wife was not residing on

the given address, where the Speed post/Registered letter was

sent, the ex-parte order dated 10.7.2019 is required to be

recalled, to meet the ends of justice.

6. The net result of the above discussions is that the ex-

parte decree granted against the wife is required to be set aside

after setting aside the ex-parte order dated 10.7.2019.

.

However, the learned Trial Court is required to proceed with the

matter in accordance with law. Petitioner-wife, who is

respondent in the learned Trial Court directed through learned

Counsel to appear before the learned Trial Court on

26th November, 2021.

7. In view of the above, the instant petition is disposed of

in the aforesaid terms, so also the pending application(s), if any.

Record of the learned Court below be sent back immediately.

                                      ( Chander Bhusan Barowalia )
      th
    29 October, 2021                          Judge
    (CS)