Deepika Kundi @ Kanta vs Smt Suman Dhiman

Dev Darshan Sud, J.—The appellant is aggrieved by the order passed by the Learned District Judge, Bilaspur, in an application under Order IX Rule 13 of the CPC filed by him, setting aside ex parte proceedings which have been instituted under Sections 7,8 and 9 of Guardian Wards Act for the custody of the minor Baruni. In proceedings under Order IX Rule 13 C.P.C, I am not entering into the arena of adjudication on the merits of the entire proceedings before the learned District Judge. However, what I find is that the learned Court on the basis of no evidence has made certain observations in the appeal which are only not sustainable but also harm the interest of the petitioner herein. In particular, Mr. Ajay Kumar, learned senior counsel appearing for the appellant has drawn my attention to paragraphs 4 and 7 of the judgment of the learned Court. In para-4, the learned Court holds:

I have heard the learned counsel for the applicant and also gone through the record of the case. The question which arises for consideration before this court is as to whether the applicant has made out a case for setting aside the exparte order dated 31.3.2009. At this stage, it would be relevant to reproduce Order 9, Rule 13 C.P.C. which reads as under:

Rule 13. Setting aside decree exparte against defendants. In any case in which a decree is passed exparte 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.

In drawing the conclusion, the learned court then says:

In the absence of any concrete material on record, the self serving statement of the applicant is not trustworthy and the same does not inspire confidence. No sufficient cause has been shown by the applicant for setting aside the exparte final order dated 31.3.2009. Hence, the application being devoid of merit deserves to be dismissed and the same is dismissed with no order as to costs.

Perhaps the learned District Judge did not consider the seriousness of the adjudication on merits on this allegation. Even if the evidence is ex parte, marriage has to be proved on the record of the case in accordance with law which needs no reiteration. {See: Kanwal Ram and Others Vs. The Himachal Pradesh Admn.,

It is to be established on record by leading cogent evidence which should not only be admissible in law but must prove the fact urged which in this case is the performance of the second marriage. Merely accepting an ex parte submission on the basis of document which is not proved but placed on the record as a mark, no finding can be given. The learned Judge should have been aware about the fact that such finding also renders the appellant herein open to criminal proceedings in addition to civil action as also departmental proceedings. This is the seriousness of the established findings on record. Under the circumstances, this cannot be allowed as I find no evidence on the record to establish this fact. I accordingly direct that the findings rendered on this issue shall be expunged from the judgment. In these circumstances, this appeal is disposed of with the following directions:

(a) The finding of the learned District Judge that a second marriage has been contracted by the appellant herein is quashed and set aside. The relevant portions of the judgment on this point shall be expunged. The finding in the judgment shall not be the basis of any proceedings which may have been instituted against the appellant on the administrative side or in any other proceedings civil or criminal in any court of law. The factum of the event actually having taken place, if any, has to be established by clear and cogent evidence.

(b) The custody of the minor shall remain with the respondent.

The appeal is disposed of.