Himachal Pradesh High Court
Date Of Decision: 14.05.2025 vs Ramesh Kumar on 16 May, 2025
Bench: Tarlok Singh Chauhan, Sushil Kukreja
2025:HHC:14257
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO (FC) No. 29 of 2025
Date of decision: 14.05.2025
Rajni ...Appellant
Versus
Ramesh Kumar ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting? No.
For the Appellant: Mr. Raju Ram Rahi, Advocate.
For the Respondent: Mr. Naveen K. Bhardwaj, Advocate
Tarlok Singh Chauhan, Judge (Oral)
The appellant has filed the instant appeal for setting
aside the order dated 31.12.2024 passed by the learned Principal
Judge, Family Court, Kangra at Dharamshala, H.P., in case CMA
No. 99 of 2022 whereby the the application filed by the appellant
for condonation of delay has been dismissed.
2. The appellant filed an application for setting aside
the ex parte decree of divorce dated 01.05.2017 and alongwith
that she filed a separate application under Section 5 of the
Limitation Act for condonation of delay in filing the application.
3. The learned Family Court dismissed the application
filed under Section 5 of the Limitation Act, by observing as
under:-
"12. Taking case in hand in the present case admittedly
many litigation's has been going on the parties including
under Section 125 Cr.P.C., the applicant-wife has admitted
in her cross-examination that she is given the same
address in present application. She has given the same
address in case filed under section 125 of Cr.P.C, and she
knows Advocate V.B. Kaistha. Thus the address given by
her is the same which is her permanent address therefore
it cannot be held that the address given in the petition by
the respondent was incorrect but perusal of the file shows
that despite summons being issued many time the
respondent could not be served but due to litigation
pending between the parties. The respondent had
contended that the applicant-wife had the knowledge of
the divorce petition despite which she was avoiding
service. The observation has also been made by the Court
on 02-07-2015, in the Zimni Order wherein, Ld. ADJ-1,
Dharamshala, had observed that the respondent is
avoiding service therefore, she cannot be served by
ordinary process, accordingly, she had served through
publication. On this order the applicant-wife was served
by publication in the newspaper which is "Dainaik Jagran"
which is also circulate in circulation in Shimla, the
publication had correctly made and after that the
applicant-wife has been proceeded exparte. There is
nothing in the pleadings or in the evidence of the
applicant-wife that the publication has not done made
correctly. In fact, the address of the applicant-wife is the
same as has been mentioned by the respondent-husband.
There is no document attached by the applicant showing
that she had obtained any copy of Pariwar Register in
which "talak ho chuka hai" has been written therefore,
despite having document it is not been produced in the
Court from which adverse inference can drawn against the
applicant-wife that no such document has been existed,
no date has been mentioned in the file that shows she
had the knowledge that she has been divorced and
divorce decree has been passed against her. She had also
not produced the original record of the certificate issued
in her favour that she was working in NGO and was not
present at home moreover, there is no denying the fact
that the address of Hamirpur, is her permanent address.
She is also not prove that on date of publication she was
not present at home in the absence of search record
cannot resume that she has reasonable ground to
condoned the delay. Accordingly, no reasonable ground
has been pleaded by the applicant. I do not find any
reasonable ground to condoned the delay as this is a
discretionary relief and it is settled law that the party
cannot be given benefit of her own wrong and she herself
tried to avoid the service despite having knowledge of the
present proceedings. Accordingly, the present application
is hereby disallowed. Disposed off. Be consigned to record
room after its due completion."
4. The order passed by the learned Family court is
clearly not sustainable. The mere fact that the appellant had
given the same address in the petition filed under Section 125
Cr.P.C. would not in any way indicate much less prove that she
was still residing at the given address. Moreover, it was for the
respondent to have duly proved on record that the appellant, in
fact, had the knowledge of divorce petition and has deliberately
avoided service.
5. The learned Family Court committed grave error in
relying upon the observations that had been made by the Court
on 02.07.2015, wherein the learned Additional District Judge-I,
Dharamshala had observed that the appellant was avoiding
service, more particularly, when it was this very order, which has
been assailed by the appellant in the application filed under
Order 9 Rule 13 CPC.
6. Pre judging the issue at the stage of deciding of the
application under Section 5 of the Limitation Act has not only
caused serious prejudice to the case of the appellant but would
also operate as res judicata while determining the application
filed under Order 9 Rule 13 CPC.
7. Clearly, in such circumstances, the order passed by
the learned Family Court on 31.12.2024 cannot sustain and is
accordingly set aside.
8. The learned Family Court shall now proceed to
decide the application filed by the petitioner under Order 9 Rule
13 CPC and while adjudicating the same, the Court shall be
guided by the ratio laid down in the following judgments:-
1. Mrs. Payal Ashok Kumar Jindal vs. Capt.
Ashok Kumar Jindal, 1992 SC (3) 116.
2. Smt. Yallawwa vs. Smt. Shantavva 1997 (11)
SCC 159
3. Smruti Pahariya vs. Sanjay Pahariya,
2009(13) SCC 338
4. FAO (FC) No. 42 of 2024, titled as Meena
Kumari vs. Narender Kumar, decided on
12.03.2025.
5. FAO(FC) No. 21 of 2024, titled as Champa
vs. Rajender Kumar, decided on 20.03.2025.
6.Suman Sharma vs. Sanjeev Sharma AIR 2024
HP 91.
9. The parties are directed to appear before the learned
Family Court on 18.06.2025.
10. The appeal is allowed in the aforesaid terms. Pending
application, if any, also stands disposed of.
(Tarlok Singh Chauhan)
Judge
(Sushil Kukreja)
14 th
May, 2025 Judge
(sanjeev)
