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Dawood vs Zubaida B.A. on 10 June, 2010

Kerala High Court
Dawood vs Zubaida B.A. on 10 June, 2010




Mat.Appeal.No. 546 of 2009()

                      ...  Petitioner


                       ...       Respondent

                For Petitioner  :SRI.JAWAHAR JOSE

                For Respondent  :SRI.K.V.SOHAN

The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI

 Dated :10/06/2010

 O R D E R
               R.BASANT & M.C.HARI RANI, JJ.
                 Mat.Appeal No.546 of 2009
               Dated this the 10th day of June, 2010



Can a recalcitrant litigant be permitted to take advantage

of the alleged inadequacy in the service of notice when it is clear

as day light that he had full knowledge of the proceedings and

opportunity to participate in the same?

This question arises for consideration in this appeal.

2. This appeal is preferred by the appellant through his

power of attorney holder, his father, against dismissal of

applications to condone the delay of 330 days and to set aside an

exparte order of divorce passed against him under Section 2 of

the Dissolution of Muslim Marriages Act, 1939.

3. To the skeletal facts first. The marriage took place on

18.07.2004. The wife claimed divorce under Section 2 of the

Dissolution of Muslim Marriages Act in a petition filed in 2007 –

as O.P.No.225 of 2007. The appellant/husband was employed

abroad. Notice could not be personally served on him. Attempt

was made to effect service by affixture at the place of permanent

Mat.Appeal No.546 of 2009 2

residence of the appellant in India. The notice was affixed. To

that affixture, the father of the appellant, his present power of

attorney holder, was a witness. The appellant did not appear

even thereafter. It was, in these circumstances, that on

15.01.2008, an exparte decree was passed against the appellant

dissolving the marriage. Long later, after the lapse of about a

year, the appellant filed an application to set aside the exparte

order. That application was preferred by him through his

father/power of attorney holder. Along with that application, he

filed another application to condone the delay of 330 days in

filing such application.

4. The applications were opposed. The father of the

appellant examined himself as PW1. Ext.A1 photocopy of the

passport of the appellant was marked. The court below on an

anxious consideration of all the relevant circumstances came to

the conclusion that the appellant had full knowledge of the

proceedings and that he had deliberately not participated in the

proceedings. The court took the view that the evidence tendered

by PW1 is insufficient to come to a conclusion that the appellant

was wrongly set exparte. The long delay of 330 days was not

sufficiently explained, opined the court. The court had before it

Mat.Appeal No.546 of 2009 3

the undisputed circumstance that the appellant had married

again during the subsistence of the earlier marriage. The court

further took the view that the appellant does not deserve a

further opportunity to contest the proceedings. Accordingly the

court proceeded to pass the impugned order. It is this common

order that is assailed in this appeal.

5. The learned counsel for the appellant submits that the

appellant, at the relevant time, was residing abroad at his place

of employment and he was not available in India. This fact was

known to the respondent/wife. In spite of knowledge of that fact,

she did not take any steps to get service effected at the place of

residence of the appellant abroad. Instead, she only took steps

to get service effected at his place of residence in India. When

personal service could not be effected, she attempted to get

service effected by affixture. The fact that service by affixture

was effected and the fact that PW1, the father of the appellant,

who later on obtained power of attorney from him, was a witness

to the affixture is of course not disputed. Still later publication

was taken out in an edition of the Kerala Kaumudi news paper.

6. According to the learned counsel for the appellant,

notice ought to have been taken to the place of residence of the

Mat.Appeal No.546 of 2009 4

appellant abroad. According to him, effecting service at the

place of permanent residence of the appellant in India is

incorrect, improper and insufficient. Service by affixture, to

which PW1 was a party, cannot, in these circumstances, cure the

defect/inadequacy in service. The mere fact that the father of

the appellant had knowledge of service of notice by affixture at a

time when he was not the power of attorney holder of the

appellant cannot, under any circumstances, affect the plea of the

appellant that there has been no proper service and the court

was wrong in setting him exparte. The publication in the news

paper in an edition which has circulation only at his place of

permanent residence in India is not sufficient and cannot be held

to be adequate. In support of these contentions, the learned

counsel for the appellant heavily relies on the following

decisions. Great Punjab Agro Industries Ltd. v. Khushian

[92005) 13 SCC 503], Rabindra Singh v. Financial Commr.

[(2008) 7 SCC 663], Naresh Chandra Agarwal v. Bank of

Baroda and others [(2001) 3 SCC 163] and Chathu v.

Gopalan [1981 KLT 103].

7. The learned counsel for the respondent/wife on the

other hand contends that there is absolutely no merit in the

Mat.Appeal No.546 of 2009 5

contentions raised by the appellant. The learned counsel relies

on the second proviso to Order 9 Rule 13 of the Code of Civil

Procedure, which we extract below:

“13. Setting aside decree ex parte against

defendant — In any case in which a decree is passed

ex parte against a defendant, he may apply to the

Court by which the decree was passed for an order

to set it aside; and if he satisfies the Court that the

summons was not duly served, or that he was

prevented by any sufficient cause from appearing

when the suit was called on for hearing, the Court

shall make an order setting aside the decree as

against him upon such terms as to costs, payment

into Court or otherwise as it thinks fit, and shall

appoint a day for proceeding with the suit;

Provided that where the decree is of such a

nature that it cannot be set aside as against such

defendant only it may be set aside as against all or

any of the other defendants also:

[Provided further that no Court shall set aside a

decree passed ex parte merely on the ground that

there has been an irregularity in the service of

summons, if it is satisfied that the defendant had

Mat.Appeal No.546 of 2009 6

notice of the date of hearing and had sufficient time

to appear and answer the plaintiff’s claim.

(Explanation–Where there has been an appeal

against a decree passed ex parte under this rule, and

the appeal has been disposed of on any ground other

than the ground that the appellant has withdrawn

the appeal, no application shall lie under this rule for

setting aside that ex parte decree.)”

(emphasis supplied)

The counsel contends that the appellant had full knowledge of

the pendency of the proceedings. He had deliberately not

appeared before court. He can by no stretch of imagination be

heard to contend that he had no knowledge of the pendency of

the proceedings. His father was a witness to the affixture. The

father or the son does not have a case that information about the

affixture was not known to the father or was not conveyed by the

father to the appellant. It cannot be lost sight of that it is the

very same father, who as the appellant’s attorney, has tendered

evidence before court as PW1. Did not PW1 inform his son, the

appellant, of the affixture of the court’s notice on his premises

with him as a witness? If he did not, why did he not inform the

appellant? If he did inform the appellant, why did the appellant

Mat.Appeal No.546 of 2009 7

remain mute and inactive till 330 days elapsed from the date of

the decree? No effective answers are forthcoming to all these

queries. The inference appears to be irresistible that the

appellant, who had no intention to contest the proceedings, is

now belatedly making attempt to undo the successful efforts

made by the respondent to obtain a decree.

8. The learned counsel for the appellant attempts to

advance a contention that on merits the decree for divorce is not

justified. The decree can be assailed only on the basis of the

materials that are presently available. Attempt to import

materials from other proceedings which are there cannot

obviously be permitted by this Court. On the materials available,

the decree for divorce appears to be absolutely justified.

9. The learned counsel for the respondent submits that

the emptiness and hollowness of these contentions of the

appellant against the exparte decree for divorce can be

deciphered from the fact that he had admittedly remarried even

while the petition was pending. We have been taken through the

exparte evidence tendered by the wife in O.P.No.225 of 2007. It

has been asserted by her that her husband is guilty of cruelty,

that he has married again and that he is not desirous of

Mat.Appeal No.546 of 2009 8

continuing the marriage. In the light of the decision in

Abdurahiman v. Khairunneesa [2010 (1) KLT 891], the

learned counsel for the respondent contends that attempt of the

appellant to resist the claim for divorce is without any merit or


10. We have considered all these contentions. We are

satisfied that the second proviso to Order 9 Rule 13 of the Code

of Civil Procedure must guide and control the controversy raised.

It is crystal clear, nay there is not a semblance of doubt in the

mind of the Court that affixture was attempted and effected at

the permanent residence of the appellant in India in the

presence of his father who, later on, has become his power of

attorney holder. In the total absence of even a contention that

PW1, the father of the appellant, did not convey the fact of

affixture of notice to the appellant, the valiant attempt made

belatedly to get the exparte order set aside, must be found to be

without any merit.

11. The rationale of the second proviso to Order 9 Rule 13

must be alertly imbibed. The rule of natural justice universally

accepted oblige the Courts in all refined societies to insist that

no one should be visited with an adverse consequence unless he

Mat.Appeal No.546 of 2009 9

has been given an effective and reasonable opportunity to be

heard – to show cause against such an adverse order. Such

salutary rule should not deliver any undeserved advantage to any

recalcitrant litigant who does not make use of the opportunity

which was made available to him. It would be inequitable to

permit such party to exploit and take advantage of the salutary

rule, when he really had knowledge of the proceedings and

sufficient time and opportunity to appear and answer the claim.

The inequitable nature of the appellant’s claim is evident from

the fact that PW1, the father of the appellant, the sole witness

examined on his side conveniently does not assert that he who

was a witness to the process of affixture did not convey the

information to the appellant. Bona fides is not a virtue that we

can discover or invent in the hands of the appellant. It will not

be inapposite in this context to note the conduct of the appellant

of marrying again while the matrimony with the respondent was

subsisting and the entitlement of the wife for an order of divorce

on that sole ground in the light of Abdurahiman v.

Khairunneesa (supra), notwithstanding the fact that a decree

for divorce has not now been granted on the ground of

matrimonial cruelty.

Mat.Appeal No.546 of 2009 10

12. We do not find any merit in the challenge raised. The

challenge raised in this appeal must, in theses circumstances,


13. This Mat.Appeal is, in these circumstances, dismissed.



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