Exparte Divorce set aside 4 years after divorce !!,

Exparte Divorce set aside 4 years after divorce !!,

Meanwhile husband has re married and has a kid out of the next wedlock


Madras High Court

P.Krishna Kumari vs A.Kandasamy on 8 September, 2010


IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 08.09.2010

CORAM :

THE HONOURABLE Mrs.JUSTICE R.BANUMATHI

and

THE HONOURABLE Mr.JUSTICE G.M.AKBAR ALI

C.M.A. No. 739 OF 2010

P.Krishna Kumari .. Appellant

Versus

A.Kandasamy .. Respondent

Civil Miscellaneous Appeal filed under Section Order 43, Rule 1 (d) CPC against the order in I.A.No.1477 of 2008 in FCOP.No.2103 of 2004 on the file of I Additional Judge, Family Court, Chennai dated 21.12.2009. For Appellant : Mr.C.Rajan

For Respondent : Mr.M.A.Rua

JUDGMENT

R.BANUMATHI,J

Being aggrieved by the dismissal of her application filed in I.A.No.1477 of 2008 under Order IX Rule 13 CPC and declining to set aside the exparte order of divorce granted in F.C.O.P.No.2103 of 2004, Appellant-wife has filed this Civil Miscellaneous Appeal.

2. Marriage between the Appellant and Respondent was solemnized on 09.12.2002 at Tiruchendur according to Hindu rites and customs. After the marriage, Appellant and Respondent lived in Flat No.A-2, 2nd Floor, Southern Apartment, M.G.R.Salai, Saligramam, Chennai-93. According to Appellant, her father bought furniture, colour TV and household articles for the new Flat and had also given money for setting up residence. Spouses shifted their residence to Door No.132 & 133, A V M Avenue, 5th street, Virugambakkam, Chennai. Appellant has averred that after they shifted the residence to Virugambakkam, Respondent was very cruel to her and that he wanted to marry another lady. After writing to her father in Tiruchendur on 30.08.2004 Appellant left the matrimonial house and lived with her father. In the mean while, Appellant's father constructed a house in his own Plot at Vanagaram, Chennai and Appellant has been living there in the said house at Vanagaram, Chennai. Further case of Appellant is that on 12.5.2008, her father sent a relative cum-common friend one Velu to the Respondent's house and the said common friend came and told her father that Respondent had obtained exparte divorce order on the ground that Appellant is mentally ill and suffering from Schizophrenia. Appellant also averred that Respondent got the exparte order of divorce behind her back and that she came to know about the exparte order of divorce on 12.05.2008. Appellant has filed I.A.No.1477 of 2008 praying to set aside the exparte order of divorce in F.C.O.P.No.2103 of 2004 and praying that opportunity is to be given to her in the divorce petition.

3. Respondent resisted the Petition contending that Appellant is suffering from chronic Schizophrenia and that he tried to get divorce by mutual consent and given Police complaint to V2 Virugambakkam Police Station on 21.8.2004 in CSR No.230/2004. Respondent further averred that he decided to get divorce by mutual consent and issued legal notice to the Appellant on 22.08.2004 and inspite of receipt of the legal notice, Appellant never changed her attitude. Respondent further averred that Appellant has not cooperated in taking treatment and therefore, he filed Petition for divorce and when the Bailiff went to serve the notice, Appellant refused to receive the same and Bailiff had affixed the notice on the door in front of the house and after seeing the notice issued by the Court affixed on the door, Appellant left the home and never turned back. Respondent further averred that Appellant was well aware of the Court proceedings.

4. Pointing out issuance of Ex.R2  legal notice [22.08.2004] which was received by the Appellant, the Family Court held that contention of Appellant that she was not aware of the order passed in F.C.O.P is not acceptable and the said contention was rejected. Learned Family Court also observed that exparte order of divorce was passed on 09.11.2004 and Petition was filed on 14.05.2008 nearly after four years and the same was not accompanied by any petition to condone the delay and on those reasonings, dismissed the application I.A.No.1477 of 2008 filed under Order IX Rule 13 CPC.

5. Learned counsel for Appellant contended that procedure contemplated under Order V Rule 17 C.P.C and Order V Rule 19 CPC was not duly complied with and while so trial Court failed to consider that summons were not duly served. It was further contended that when there has been no service of summons in the O.P., and the Appellant was unaware of the proceedings in the Court prior to 12.5.2008, the trial Court ought to have held that there was no delay on the part of the Appellant in filing the petition to set aside the exparte decree. It was further submitted that when the summons was returned by the Bailiff stating that the Appellant refused to receive the summons, to substantiate the same, Bailiff was not examined and while so the trial Court erred in acting upon the mere endorsement made by the Bailiff. It was further argued that the trial Court had also taken extraneous circumstances like subsequent marriage of the husband, which are alien for consideration in a petition for setting aside the decree.

6. Learned counsel for Respondent submitted that knowing fully well that the Respondent had taken steps for obtaining divorce, Appellant left the matrimonial house. It was further argued that neither father of Appellant nor the said common friend - Velu was examined. The Appellant was duly served by affixture and therefore delay has not been properly explained and the trial Court rightly dismissed the application filed under Order IX Rule 13 C.P.C. declining to set aside the exparte decree.

7. We have carefully considered the rival submissions, materials on record and order of the Family Court. The following points arise for consideration: "(1) Whether the Appellant was duly served and whether Family Court was right in saying that service was sufficient?

(2) Whether the Family Court was right in saying that the Appellant was aware of the proceedings and the order passed in F.C.O.P.No.2103 of 2004 dated 9.11.2004? (3) Whether the Family Court was right in dismissing the Petition on the ground that the order in F.C.O.P.No.2103 of 2004 was passed on 9.11.2004 and Petition under Order IX Rule 13 C.P.C. was filed on 14.5.2008 nearly after four years and that the application was not accompanied by any petition to condone the delay."

8. Points No.1 to 3: The points for consideration narrow down to:- (i) whether there was due service of notice and (ii) whether there was sufficient cause for non-appearance of the Appellant on the date of hearing. Case of Appellant is that she left the matrimonial house even on 30.8.2004 and no notice was served upon her. Per contra, according to Respondent, Bailiff went to the house at Virugambakkam on 17.9.2004 and since Appellant refused to receive the notice, Bailiff affixed the same on the door. The Family Court referred to the endorsement made by the Bailiff in the notice, which reads as under: @gpujpthjpaplk; nehl;O!; rhh;t[ bra;a bfhLj;njd;/ mth; th';fp goj;Jtpl;L bgw ,ayhJ vd;W jpUg;gpf; bfhLj;J tpl;lhh;/@

Trial Court referred to return of Registered Post A.D. with an endorsement "not claimed". Family Court held that the service was sufficient and passed the exparte decree.

9. Order V Rule 17 C.P.C. deals with procedure when Defendant refuses to accept service, or cannot be found and service of notice by affixture. Service of summons by affixation would be valid if one or the other of the following conditions are satisfied, namely (1) if the defendant or his agent or such other person as is mentioned in Rules 13 to 15 refuses to sign the acknowledgment, or (2) if the serving officer after using all due and reasonable diligence cannot find the defendants and there is no agent or other person on whom service can be made. In case of return under Rule 17, the Court shall record a distinct declaration of service or order further service. The Process Server must use the due and reasonable diligence in finding the Defendant/ Respondent and make efforts to find out as and when the Respondent would be available next time. The Process Server should also mention in his report as to whom he contacted and by whom the house was identified.

10. Service by affixture by the Process Server even in the absence of witnesses can be deemed to be good and sufficient; but it is a question of forming opinion by the Court as to whether the service was sufficient. When the party denies service of notice through Process Server, the onus shifts to the petitioner/ Plaintiff, who should prove the essential ingredients of Order V Rule 17. In the present case, as pointed out earlier, the Family Court referred to mere endorsement by the Process Server that the Appellant had gone through the notice and refused to receive the same and thereafter he effected service by affixture. In view of the endorsement by Process Server, the trial Court raised presumption of proper service of notice. As per Order V Rule 17, the Process Server has to return the original to the Court with a written endorsement thereon or annexed thereto stating that he has so affixed the copy and the circumstances under which he did so and the name and address of the person by whom the house was identified. We find that the endorsement by the Process Server does not refer to the requisite details under Order V Rule 17 C.P.C. While so, in our considered view, the trial Court erred in raising the presumption of service of notice.

11. Order V Rule 19 C.P.C. provides for examination of the serving officer on oath. Order V rule 19 reads under:

"Examination of serving officer. - Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further inquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit." When no proof was adduced by affidavit or report that any attempt was made to serve personally, the Court should make an enquiry to ensure the correctness of the Process Server's report that he had served the summons by affixture on the dwelling house of the Defendant. Even when Process Server files his report, the Court has jurisdiction to examine the Serving Officer.

12. As provided under Order V Rule 19 C.P.C, the Family Court has not chosen to examine the Process Server, who tendered notice and that the Appellant had refused to receive the notice and the circumstances under which the affixture was effected. We feel that some reasonable time may elapse between actual tender of notice to the Appellant and her refusal and subsequent affixture. In the present case, we find no reference to any affidavit or report filed by the Process Server. In the absence of any affidavit or report filed by the Process Server as contemplated under Order V Rule 19 C.P.C, the trial Court should have resorted to Order V Rule 19 C.P.C. in examining the Serving Officer/ Process Server.

13. Let us now examine the actual endorsement made by the Process Server. To appreciate the rival submissions, following dates and events are relevant to be noted: Date of marriage : 9.12.2002

Date on which Appellant was taken to A.C.Hospital for check up : 25.3.2004

Date on which the Appellant was taken to Vijaya Hospital : 28.7.2004

Date on which the Appellant was taken to Dr.T.R.Suresh : 03.08.2004

Date of giving police complaint by Respondent (Ex.R.1) : 21.8.2004

Date of issuance of legal notice Ex.R.2 by Respondent to Appellant : 22.8.2004

Date of receipt of Legal Notice by Appellant:23.8.2004 (Ex.R.3)

Date on which the Appellant allegedly attended for treatment at Dr.T.R.Suresh : 28.8.2004

Date on which the Appellant left the matrimonial home : 30.08.2004

Date of filing matrimonial petition by Respondent : 13.9.2004

Date on which Bailiff went to residence for serving the notice : 17.9.2004


14. As pointed out earlier, in dates and events, the divorce petition was filed on 13.9.2004 and process server alleged to have gone to the residence on 17.9.2004 and served the notice on which date, the Appellant refused to receive the notice. Per contra, according to Appellant, she left the matrimonial house even on 30.8.2004. Whereas the case of Respondent is that he has taken the Appellant to Dr.T.R.Suresh, Psychiatrist on 28.8.2004. Dr.T.R.Suresh is said to have issued Ex.P.5 certificate, which the Appellant is said to have attested. Referring to Ex.P.5 (Ex.R.5) the Family Court observed that the said certificate issued by Dr.T.R.Suresh falsifies the Appellant's case that she left the house on 30.8.2004. Based upon Ex.P.5, the inference drawn by the Family Court that the Appellant must have been available in the matrimonial house on 17.9.2004 cannot be countenanced.

15. From the dates and events, it is seen that the Respondent had given a police complaint on 21.8.2004 and immediately thereafter he issued Ex.R.1 legal notice on 22.8.2004 seeking for divorce and the same was received by the Appellant on 23.8.2004 (Ex.R.3). Having lodged police complaint and having issued legal notice seeking for divorce, it is quite unbelievable that the Respondent would have taken his wife to the Hospital on 28.8.2004. In our considered view, based upon Ex.P.5, it cannot be presumed that the Appellant was available in the matrimonial house on 17.9.2004. In our considered view, the Family Court ought not to have placed reliance upon Ex.P.5 (Ex.R.5) to draw a presumption that the Appellant must have been available in the matrimonial house and that she was duly served with notice.

16. The Respondent sought for dissolution of marriage making serious allegations of mental disorder, chronic schizophrenia against the Appellant. For the Appellant, it was her life problem. While so, the Family Court ought not to have casually proceeded in the manner it did by simply referring to the Bailiff's endorsement. The procedure contemplated under Order V Rule 17 C.P.C. and Order V Rule 19 C.P.C. were not complied with. The Respondent has not established that the Appellant was duly served with notice.

17. The Family Court appears to have been swayed by two extraneous considerations (i) that the exparte order was passed on 9.11.2004 and petition was filed on 14.5.2008 nearly after four years and that it was not accompanied by any petition to condone delay. (ii) in the mean time the Respondent got married on 1.2.2008 and begot a child on 12.7.2009. In our considered view, both the above grounds are unsustainable. In the supporting affidavit, the Appellant has clearly averred that after she left the matrimonial house, she was in the fond hope of re-joining her husband and only on 12.5.2008 when the common friend - Velu informed her about the exparte divorce decree she came to know about the same and thereafter filed the petition to set aside the exparte decree. When the Appellant was not duly served with notice, she has filed the application within 30 days from the date of her knowledge. As the petition was filed within time from the date of knowledge, the Family Court was not right in saying that the petition was not accompanied with application for condonation of delay.

18. Since the Appellant was not duly served, there are bonafide reasons for the delay, which, the Family Court did not keep in view. When the Appellant was not duly served with the notice and being a matrimonial dispute, the trial Court ought to have set aside the exparte decree and afforded an opportunity to the Appellant to put forth her defence. In exercising discretion under Order 9 Rule 13 CPC, the discretion has to be judicially exercised according to justice and sound judgment. In our considered view, the trial Court fell in error in dismissing the Petition filed by the Appellant and declining to set aside the exparte decree. Since serious allegations of mental disorder/chronic schizophrenia are alleged against the Appellant, opportunity must be afforded to her to put forth her defence in the matrimonial petition and therefore we set aside the order of the Family Court.

19. In the result, the Order of the Family Court dated 21.12.2009 made in I.A.No.1477 of 2008 in F.C.O.P.No.2103 of 2004 on the file of I Additional Judge, Family Court, Chennai is set aside and the Civil Miscellaneous Appeal is allowed. The I Additional Judge, Family Court, Chennai is directed to restore the F.C.O.P.No.2103 of 2004 on file and afford reasonable opportunity to the Appellant to file her reply statement, and proceed with the matter in accordance with law. In view of the relationship of the parties, there is no order as to costs. (R.B.I.J.,) (G.M.A.J.,]

08.09.2010

Index : Yes

Internet : Yes

To

The I Addl.Judge

(Family Court)

Chennai.

R. BANUMATHI, J

and

G.M.AKBAR ALI,J

usk

Order in

CMA No.739 of 2010

08.09.2010




Source http://www.indiankanoon.org/doc/1481669/