JUDGMENT
G.S. Singhvi, J.
1. Petitioner Lakhwinder Singh has filed Civil Revision No. 3648 of 1993 against the order dated 25th November, 1992 passed by the Additional District Judge, Jind on an application filed by the respondent Palvinder Kaur for setting aside exparte decree dated September 3, 1987. Since, the revision petition has been filed after the expiry of the period of limitation, the petitioner has filed an application under Section 5 of the Indian Limitation Act, for condonation of delay.
2. A brief reference of the facts of the case is essential for proper appreciation of the claim made in the petition for condonation of delay in filing of the revision petition for the purpose of setting aside the order dated 25.11.1992, passed by the learned Additional District Judge, Jind.
3. The petitioner and the respondent were married in accordance with customs and the provisions of the Hindu Marriage Act. The petitioner Lakhvinder Singh filed a petition under Section 13 of the Hindu Marriage Act, 1955 for dissolution of marriage. His petition was decreed by the Court on 3.9.1987. The respondent filed an application sometime in the year 1990 for setting aside the exparte decree on the ground that notice of the petition filed by Lakhvinder Singh under Section 13 of the Hindu Marriage Act was never served upon her and that she had not signed vakalatnama or written statement allegedly filed on her behalf in the petition of Lakhvinder Singh. She pleaded that being an illiterate lady, she was not in a position to put her signatures. The respondent further pleaded that she had never engaged Sh. H.S. Lather, Advocate of Jind as her counsel and that Mr. Lather might have been engaged by Lakhvinder Singh and his family members to get the claim of Lakhvinder Singh accepted by the Court.
4. On the application filed by the respondent for setting aside the exparte decree, notice was issued to the petitioner. After notice was served on the petitioner a communication was received by the Court below from the Army Authorities that it was not possible to despatch Lakhvinder Singh to appear before the Court due to exigencies of service. Taking note of the communication received from the Army Authorities, the Court passed an order dated 7.11.1991 adjourning the case. At the same time, it directed that the Army Authorities be informed. The case was then adjourned on four dates to await a response from the Army Authorities. On 12.3.1992, the learned Additional District Judge directed the issuance of a notice by registered post to Lakhvinder Singh. On 25.3.1992, Lakhvinder Singh appeared before the Court to collect information regarding the next date of hearing. On 31.3.1992, Sh. S.S. Poonia Advocate appeared on behalf of the petitioner and requested for adjournment. On 2.4.1992 also, Sh. Poonia requested for adjournment so as to enable him to file a reply. On 6.4.1992, the Court recorded that reply had been filed. At the same time, the Court framed three issues. Statement of the respondent Palvinder Kaur was recorded by the trial Court on 14.5.1992 and the case was adjourned to 2.6.1992 for evidence of the respondent. It was adjourned to 24.7.1992, 5.8.1992 and 9.9.1992 for recording evidence of Lakhvinder Singh. On 16.10.1992, neither Lakhvinder Singh appeared before the Court nor his counsel. The Court took up the matter more than once and finally ordered exparte proceedings. On 6.11.1992, the Court passed the impugned order setting aside the decree dated 3.9.1987. In his order, the learned Additional District Judge, observed as under :-
“In the normal course, in matrimonial cases personal service of the respondent is insisted upon by the Courts. Substituted service is no good service in such cases. Perusal of the file would show that in the present case, the respondent now petitioner before me appeared through Shri H.S. Lather, Advocate, on the first date of hearing fixed for 14.8.1987. Not only Shri Lather appeared for Palvinder Kaur he filed written statement also. When the case was fixed by the court for conciliation proceedings for 2.9.1987 Lakhvinder Singh was put on the alter that his fraud will be exposed because he could not produce Palvinder Kaur in court for conciliation proceedings because Palvinder Kaur was not served in the divorce petition and Shri Lather was simply a front for her. So he persuaded Shri Lather to be absent from the court and the court passed an exparte proceedings order against the respondent in the divorce petition on 2.9.1987 and that thereafter, recorded exparte evidence of Lakhvinder Singh and chose to pass on exparte decree, setting aside of which is sought by Palvinder Kaur through the present petition.
The fact that Lakhvinder Singh has been playing fraud upon the court it transparent from the proceedings which took place before Shri A.P. Chowdhri, the then learned District Judge, Jind. Even in this court Lakhvinder Singh chose to appear filed reply, allowed Palvinder Kaur to lead evidence and when his turn came to rebut the same, he again absented and allowed exparte proceedings to be taken against him. This play was adopted by him just to escape from searching cross-examination which would he would have rejected had he appeared in court at this stage, so there is no scope for dissent that there was no proper service of Palvinder Kaur in the divorce proceedings and that the said decree is liable to be set aside.”
Against the order of the Additional District Judge, Jind, the petitioner Lakhwinder Singh filed the revision petition on 17.4.1993. In the application filed by him under Section 5 of the Limitation Act, he has stated that at the time of passing of the order dated 25.5.1992, he was serving in the special conditions in the disturbed State of Jammu and Kashmir. Even at the time of filing of the application, he was serving in the special conditions. He was not informed regarding the proceedings of the application and passing of the impugned order. He came to know of the impugned order only on 6.4.1993 when he enquired regarding his case from Jind Court. Thereafter, he immediately applied for the copy and contacted the counsel for filing Revision Petition which was finally submitted on 17.4.1993. To be precise, the statement made by the petitioner in his application reads as under :
“At the time of passing the impugned order, the applicant was serving under special conditions in the disturbed State of Jammu and Kashmir etc. Even the applicant has been serving in the special conditions since from filing the application by Palwinder Kaur Respondent. The applicant was not informed regarding the proceedings of the application and regarding passing of the impugned order. The applicant came to know regarding the impugned order only on 6.4.1993 when he enquired regarding his case from the Jind Court and immediately he applied for obtaining the certified copy of the impugned order which was supplied on the same day i.e. on 6.4.1993 to the applicant thereafter on 7.4.1993, the applicant engaged the under-signed counsel for filing Revision Petition against the impugned order.
5. However, in his affidavit dated 17.11.1993, which has been filed in support of the application for condonation of delay, Lakhwinder Singh has made the following statement:-
“The Deponent was not informed regarding the proceedings of the application and regarding passing of the impugned order. However, it is important to mention here that the Deponent only visited the District Court on 25.3.1992 and he engaged the Counsel and filed the reply but thereafter, he could not attend the proceedings of the case and he was not able to produce evidence because at that time, he was serving in the special conditions in the State of Jammu and Kashmir and the leave was not granted to him. The deponent come to know regarding the impugned order only on 6.4.1993 when he enquired regarding his case from the Jind Court and immediately he applied for obtaining the certified copy of the impugned order, which was supplied on the same day to the Deponent and thereafter, on 7.4.1993, in the evening hours, the Deponent engaged the counsel for filing revision petition against the impugned order. The petition was prepared on 8.4.1993 without any delay but it could not be filed on 8.4.1993 within court time, thereafter, the same was filed on 17.4.1993 because there were holidays from 9.4.1993 to 16.4.1993. Under the abovesaid circumstances, the deponent filed the revision petition without any in-ordinate delay and the same has been filed in good faith.”
6. In the reply to the application filed by the petitioner under Section 5 of the Limitation Act, the respondent has given details of the proceedings of the lower court from 2.11.1991 to 6.11.1992 and it has been pleaded by the respondent that the petitioner was fully aware of the proceedings of the application filed by the respondent-herein for setting aside of the exparte decree.
7. The argument of the learned counsel for the petitioner is that the petitioner was prevented from filing the revision petition within the period of limitation on account of the fact that he was posted in a disturbed area and was serving under special conditions. The learned counsel invited the court’s attention the provisions of ‘The India Soldiers (Litigation) Act, 1925 and argued that it was the duty of Court to have informed the petitioner about the proceedings instituted by the respondent and that even though, Lakhvinder Singh may have been represented by an Advocate on some dates and it was not permissible for the Court to pass an order for exparte proceedings merely because his counsel was not present on a particular date.
8. Another argument advanced by the learned counsel is that as soon as the petitioner acquired knowledge of the order passed by the learned Additional District Judge, he applied for certified copy of the order and filed the revision petition at the first available opportunity and therefore, delay in filing the revision petition should be condoned. On the other hand, learned counsel for the respondent vehemently argued that conduct of the petitioner Lakhvinder Singh demonstrates his total disregard for truth and, therefore, the court must discard his theory of knowledge about the order passed by the Additional District Judge. The learned Counsel argued that patently contradictory assertions made in the application filed under Section 5 of the Limitation Act and the affidavit of the petitioner totally negatives his claim that there is sufficient cause for condoning the delay.
Extracts of the application filed by the petitioner before this Court as well as his affidavit which have been reproduced above clearly show that while in the application, the petitioner has pleaded that he was not informed regarding proceedings arising out of the application filed by the respondent Palvinder Kaur and of the impugned order and that the applicant came to know regarding the impugned order only on 6.4.93, in the affidavit filed by him on 17.11.1993 the petitioner has stated that he had visited the District Courts on 25.3.1992 and engaged a counsel and filled the reply but, thereafter he could not attend the proceedings of the case and was unable to produce the evidence because at that time he was serving under special conditions in the State of Jammu and Kashmir and leave was not granted to him. The petitioner has not explained this patent contradiction in the application filed under Section 5 of the Limitation Act and the supporting authority. A perusal of the reply filed by the respondent to the application of the petitioner makes it crystal clear that the application filed by the petitioner under Section 5 of the Limitation Act does not contain true facts. Rather it contains an averment which is per se false and by making such averment the petitioner has been successful in mis-leading the Court to issue a notice in his favour. It is important to note that no affidavit was filed alongwith the application for condonation of delay and no justification has been given for not filing the affidavit on 17.4.1993. The petitioner’s assertion that he was totally unaware of the proceedings held in the Court of Additional District Judge, on the application of Palvinder Kaur is a patently false. In his affidavit the petitioner has tried to cover up his false assertion by raising the plea that he was serving under special condition and on that account he could not appear before the Court below. The very fact that the petitioner engaged a counsel filed reply and took part in the proceedings of the Court below completely negatives his assertion about lack of knowledge of the proceedings of the case pending before the Additional District Judge.
9. Argument of the learned counsel that the Court was duty bound to inform the petitioner even though he was represented by a counsel does not merit acceptance. Though the learned counsel has relied on the provisions of the Indian Soldiers (Litigation) Act, 1925, in my opinion provisions of that Act are of little help to the petitioner’s case.
10. Section 3 of the Indian Soldiers (Litigation) Act, 1925 specifies the circumstances in which an Indian Soldier is deemed to be serving under special conditions. Section 4 of the Act makes it obligatory for the person presenting any plaint, or application or appeal to any Court to State the facts in his plaint that he/she has reason to believe that any adverse party in an Indian Soldier serving under special conditions. Section 5 empowers the Collector to give a certificate about the inability of an Indian Soldier to participate in the proceedings. Section 6 requires that the Court should suspend the proceedings and give notice in the prescribed manner to the prescribed authority. Section 7 deals with postponement of the proceedings and Section 8 empowers the Court to proceed when no certificate is received. Section 11 deals with limitation. Sections 3, 4, 5, 6, 8 and 11 of 1925 Act, are reproduced below:-
3. Circumstances in which an Indian Soldier shall be deemed to be serving under special conditions-For the purpose of this Act, an Indian Soldier shall be deemed to be or, as the case may be, to have been serving-
(a) under special conditions – When he is or has been serving under war conditions or overseas, or at any place beyond India, or at any such place within India as may be specified by the Central Government by notification in the official Gazette.
(b) under war conditions – When he is or has been at any time during the continuance of any hostilities declared by Central Government by notification, in the official Gazette to constitute a state of war for the purpose of this Act or at any time during a period of six months thereafter:-
i) serving out of India
ii) under orders to proceed on field service.
iii) serving with any unit which is for the time being mobilised or
iv) serving under conditions which in the opinion of the prescribed authority, preclude him from obtaining leave of absence to enable him to attend a Court as a party to any proceeding, or when he is or has been at any other time serving under conditions service under which has been declared by the Central Government by notification in the official Gazette to be service under war conditions; and
(c) overseas when he is or has been serving in any place outside India (other than Ceylon) the journey between which and India, is ordinarily under taken wholly or any part by see.
Explanation–For the purpose of this section and with effect from the 3rd day of September, 1939, a soldier who is or has been a prisoner of war shall be deemed to be or to have been serving under war conditions.
Note (b)(iv)–Prescribed authority see Rule 3 of the Indian Soldiers (Litigation) Rules, 1938.
4. Particulars to be furnished in plaints, applications or appeals to Court–If any person presenting any plaint, application or appeal to any court has reason to believe that any adverse party is an Indian soldiers who is serving under special conditions, he shall state the fact in his plaint, applications or appeal.
5. Power of Collector to intervene in case of unrepresented Indian Soldier–If any Collector has, reason to believe that any Indian Soldier who ordinarily resides or has property in his district and who is a party to any proceeding pending before any court, is unable to appear therein, the Collector may certify the facts in the prescribed manner to the court.
6. Notice to be given in case of unrepresented Indian Soldier-(I) If a Collector has certified under Section 5 or if the Court has reason to believe, that an Indian Soldier, who is a party to any proceeding pending before it, is unable to appear therein, and if the soldier is not represented by any person duly authorised to appear, plead or act on his behalf, the Court shall suspend the proceeding, and shall give notice thereof in the prescribed manner to the prescribed authority.
Provided that the Court may refrain from suspending the proceeding and issuing the notice if:-
(a) the proceeding in a suit, appeal or application instituted or made by the soldier, alone or conjointly with others with the object of enforcing a right of pre-emption, or
(b) the interests of the soldier in the proceeding are, in the opinion of the court, either identical with those of any other party to the proceeding and adequately represented by such other party or merely of a formal nature.
(2) If it appears to the court before which any proceeding is pending that an Indian Soldier though not a party to the proceeding is materially concerned in the outcome of the proceeding and that his interest are likely to be prejudiced by his liability to attend, the Court may suspend the proceeding and shall give notice thereof in the prescribed manner to the prescribed authority.
8. Court may proceed when no certificate received :- If, after issue of a notice under Section 6, the prescribed authority either certifies that the soldier is not serving under special conditions or that such postponement is not necessary or fails to certify in the case of a soldier resident in the district in which the Court is situated, within two months or, in any other case, within three months from the date of the issue of the notice that such postponement is necessary, the court may, if it thinks fit, continue the proceeding.
11. Modification of law of limitation where Indian Soldier or his legal representative is a party. (IX of 1908)–In computing the period of limitation prescribed by Sub-section (2) of Section 10 of the Act the Indian Limitation Act, 1908, or any other law for the time being in force, for any suit appeal or application to a Court, any party to which is or has been an Indian Soldier, or is the legal representative of an Indian Soldier, the period during which the soldier has been serving under any special conditions, and, if the soldier has died while so serving, the period from the date of his death to the date on which official intimation thereof was sent to his next of kin by the authorities in India, shall be excluded.
Provided that this section shall not apply in the case of any suit, appeal or application instituted or made with the object of enforcing a right of pre-emption except where the said right accrues in such circumstances, and is in respect of agricultural land and village immovable property situated in any such area, as the Central Government may, by notification in the official Gazette, specify in this behalf.
Before the petitioner can claim the benefits of provisions of 1925 Act, he is required to establish that he was serving under war conditions or overseas beyond India or at any such place within India as may be specified by the Central Government. The expression “under war conditions” has been defined in Section 3(b). The petitioner has failed to establish as to how his case is covered by Section 3 of 1925 Act. Moreover, no certificate as envisaged under Section 5 was issued by the Collector, therefore, the Court below was not obliged to go in accordance with the provisions of 1925 Act.
11. That apart, in my considered opinion, the provisions of 1925 Act are not available to the petitioner for the simple reason that he was duly represented by an Advocate in the proceedings relating to the application filed by the respondent for setting aside ex parte decree. Mere failure of the Advocate to appear on behalf of the petitioner cannot entitle the petitioner to claim that the Court below should have suspended the proceedings. Above all, the petitioner has not placed on record any material before this Court to show that he was not granted leave by the Army Authorities for attending the Court proceedings in his own case. It has not been stated by the petitioner either in his application or the affidavit that he had applied for permission to leave the place of posting in order to attend the Court proceedings and his application was turned down. He has not given any details in this regard either in his application or the affidavit. He has not explained as to how did he appear in the Court of the Additional District Judge and engaged a counsel for contesting the case without being given permission by the authorities. The totality of the circumstances and the conduct of the petitioner are, in my opinion, sufficient to disentitle him to any relief. The petitioner has not approached the Court with clean hands and for this reason also, the delay of 42 days in filing of the revision petition does not deserve to be condoned.
12. Consequently, the application filed by the petitioner for condonation of delay is dismissed with costs of Rs. 2000/-.
13. Since, the application filed by the petitioner for condonation of delay has been rejected the main revision petition is also dismissed as time barred.