IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 546 of 2009()
1. DAWOOD, AGED 25 YEARS,
... Petitioner
Vs
1. ZUBAIDA B.A., D/O. D.M. ABDULLA,
... 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.
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Mat.Appeal No.546 of 2009
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Dated this the 10th day of June, 2010
JUDGMENT
BASANT, J.
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
substance.
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,
fail.
13. This Mat.Appeal is, in these circumstances, dismissed.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/