JUDGMENT
S.K. Dubey, J.
1. This appeal under Order 43 Rule l(d) of the
Code of Civil Procedure, read with Section 28 of the Hindu Marriage Act, 1955
(for short the ‘Act’), is against the order dt. 24.10.89 passed in Misc. Civil
Case No. 7/1987, whereby the District Judge, Dewas dismissed the application
of the appellant/defendant under Order 9 Rule 13, C.P.C, for setting aside the
ex-parte decree dated 19.3.1987 passed for dissolution of marriage in Civil Suit
No. 24-A/86.
2. Brief facts leading to this, appeal are thus: that the respondent
plaintiff, the husband of the appellant/defendant, instituted a suit Under Section
13(1) (ia) & (ib) of the Act for dissolution of marriage. Of the suit the summons were not served in the ordinary manner as well as by the registered post. The registered envelope was received back with the postal endorsement of ‘in
complete address’. On the application of the respondent, under Order 5 Rule
20 (1-A) of C.P.C. the Court ordered for effecting service by way of publication. The publication was made in ‘Daily Prasaran’, wherein the date 22,1.1987
was fixed for hearing and appearance of the respondent. On 22.1.87 the
Presiding Officer was on leave, therefore the clerk of the Court adjourned the
case to 28.1.87. On 28.1.87 the Court adjourned the case to 28.2.87, no this
day too the Presiding Officer was on leave, hence, the clerk of the Court fixed
the case to 9.3.87. On 9.3.87 the Court did not proceed ex-parte against the
appellant/defendant and adjourned the case to 13.3.87 marking absence of the
appellant/defendant.
3. The appellant having come to know from her neighbour that
the publication has been made, sent an application by registered post, which
was received by the Court on 22.1.87, the date fixed for appearance, making a
prayer therein to supply the copy of the plaint so that the appellant/defendant
may attend and defend the case. The appellant also sent a self-addressed
stampped envelope so as to receive the reply, but, no order was passed on this
aplication on 22-1-87 and on 9.3.87.
4. On 13.3.87 the Court rejected the application and proceeded exparte. On 19.3.87 the statement of the respondent/husband was recorded and
ex-parte decree for dissolution of marriage was passed on the aforesaid two
grounds.
5. The appellant having come to know, filed an application under
Order 9 Rule 13 C.P.C. for setting aside the ex-parle decree. That application
was opposed on various grounds taking plea of limitation and to the proviso of
Order 9 Rule 13 C.P.C. contending that the defendant had the notice of the
date of hearing and had sufficient time to appear and answer the claim, therefore, the irregularity in service will not affect the validity of the ex-parte
decree.
6. The Trial Court dismissed the application as barred by time, as
having not been filed within 30 days from the date of passing of the ex-parte
decree.
7. It is this order which has been challenged in appeal.
8. Shri R.S. Kochatta, Counsel for the appellant, Shri S.S. Samvatsar
Counsel for the respondent, heard. ‘
9. After hearing Counsel, I am of the opinion that this appeal has
to be allowed and the ex-parte decree has to be set aside, for the reasons hereinafter to follow.
10. The law is settled that as far as possible the personal service is to
be affected, but, the defendant who is served by publication, appears and makes
a prayer to supply a copy of the plaint to contest the suit, the Court is bound
to order to supply the copy of the plaint so as to enable the defendant to
know, the concise statement thereof and the particular claim brought by the
plaintiff against him, and make up the mind against the claim, that is why
Order 5 Rule 2 of C.P.C. provides that annexing copy of plaint to summons
is mandatory and if, the summons are searved without supplying the copy of
the plaint, the service cannot be deemed to be valid. See a Division Bench
decision of this Court in the case of Smt, Chhutbai and Another v Madanlal and
Another, AIR 1989 MP 330.
11. It was contended that the defendant on service by affixture
having gathered knowledge was bound to appear and the Court is not obliged
to send a copy of the plaint, therefore, the ex-parte decree was rightly passed.
True, the defendant ought to have appeared on 22.1.1987, but nothing was
done on 22.1.87, as the Presiding Officer was on leave, hence, the case was
adjourned by the clerk of the Court to 9.3.87 which was not the date for hearing and the party’s absence on that date did not give jurisdiction to Court to Proceed ex-parte, which is the consistent view of this Court. See 1991 MPLJ 329, Sushila Bai v. Ram Nihore Jagatdhari Prasad Patel, 1986 C.C.LJ. Note 39, Mohanlal Brijlal Partnership Firm v. Manga, and 1978 Vol. I MPWN, Note 443, Kranti Kunar Jha v. Dr. J.B. Shrivastave.
12. In case of Kranti Kumar Jha (supra) this Court relying on AIR
1964 MP 261, Nanda Dayaram v. Rajaram, has observed that in the absence
of the Presiding Judge, the Court should be deemed to have been closed for
judicial functioning, or say, as if a date had been fixed which happened to be a
holiday, if a summons issued for a date which happened to be a holiday, the
defendant was under no obligation to appear on that day or on the following
day to find out for which date the case stood adjourned. The summons could
not be treated as a proper summons under Order 5 Rule 1 C.P.C. therefore, a
party may wait for another notice.
13. In view of this, in my opinion, the Court was having no jurisdiction to proceed with the case against the defendant ex-parte,
14. In such a case plea of limitation under Article 123 of the Limitation Act was not available to the respondent, as there was no service, however,
the however, the defendant having remained in belief that the defendant will
get the response waited, but, to her ill luck, the ex-parte decree was passed. In
such circumstances, there was a sufficient cause for the non-appearance of the
defendant on the date fixed by the Court, to which the defendant was not
noticed.
15. Therefore, even if the application was filed beyond 30 days from
the date of the decree, after the knowledge of the ex-parte decree, the application cannot be said to be beyond time. Even assuming, the application was
beyond time, the facts entitle the defendant to the benefit of Section 5 of the Limitation Act, which are made out in the application under 0.9 Rule 13
C.P.C.
16. It is trite that while considering an application under Order 9
Rule 9 or 13, generous construction should be placed on the enactment to
restore a suit or to set aside ex-parte decree for the default of appearance of a
party, and a party should not be deprived of hearing, unless there is something
equivalent to misconduct or gross negligence.
17. In case of Collector, Land Acquisition, Ananinag and Another v.
Mst. Katiji and Others, AIR 1987 SC 1353, the apex Court while considering a
case of condonation of delay on an application Under Section 5 of the Limitaion Act, observed that the approach should be liberal aad justice oriented and
for that laid down six principles; one of them is, when substantial justice and
technical considerations a repitted against each other, cause of substantial
justice deserves to be preferred for the other side cannot claim to have vested
right in injustice being done because of a non-deliberate delay, as a litigant
does not get benefit by resorting to delay, in fact he runs a serious risk.
18. As the facts of the case speak, the appellant was honestly intending to defend the case, but remained in the belief that a notice and response
will be received from the Court; in such circumstances, the interest of justice
required that even the delay, if any, in filing the application under Order 9
Rule 13 C.P.C. ought to have been condoned. Therefore, in my opinion, the
Court below proceeded with erroneous approach and acted illegally in not condoning the delay in filing the application under Order 9 Rule 13 C.P.C.
19. In the result, the appeal is allowed, application under Order 9 Rule
13 C.P.C. is allowed, as a result of that the ex-parte decree passed in Civil Suit
No. 24-A/86 is set aside. Now the Trial Court shall proceed with the case
expeditiously, as it relates to the matrimonial dispute, which has to be decided
expeditiously, therefore, it is directed that the parties shall appear before the
Trial Court on 25.3.1992 for that no fresh notice shall be issued to the parties.
The Trial Court shall see that the suit, so filed, is disposed of as far as practicable within a period of six months from 25.3.1992. Record of the Court below
be sent to the concerned Trial Court. No costs.