Man Mohan Singh vs Surrinder Kaur

(1) The petitioner is husband and the respondent the wife. The petitioner made an application under Section 9 of the Hindu Marriage Act in the

court of the District Judge, Jammu against the respondent. The respondent did not appear despite service and the court proceeded exparte against

her and ultimately passed an exparte decree in favour of the petitioner against the respondent. Some time later an application for setting aside the

decree was made to the District Judge, Jammu, who transferred the application for disposal to the Additional District Judge, Jammu, The

Additional District Judge allowed the application and set aside the exparte decree passed earlier by the District Judge, Jammu. The husband

impugns in this revision application the order of the Addl. District Judge setting aside the decree.

(2) In my opinion, the petition must succeed on a short point. An application under order 9 rule 13 C. P, C. which provision applies to the

proceedings under the Hindu Marriage Act, can be allowed or dismissed only by the court which passed the decree and no other court. Order 9

Rule 13 reads thus.

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

in to 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.

(3) It is unmistakeably clear from the above quoted rule that an application for setting aside the exparte decree has to be made to the court which

passed the decree and that the decree can be set aside only by the Court which passed the decree It is not understandable how a decree which

had been passed by the District Judge could have been set aside by the Additional District Judge.

(4) It was contended by Mr Avtar Singh that the addl. District Judge is a court of concurrent jurisdiction and therefore when an application for

setting aside the decree was transferred to him by the District Judge, the Additional District Judge was competent to dispose of that application

and set aside the decree if otherwise the facts of the case so warranted.

(5) The argument does not appear to be tenable because the rule speaks of the Court which passed the decree and not the court which had

concurrent jurisdiction to pass the decree. We have at Jammu three Sub Judges namely the city Judge, the Sub Judge C J. M and the Sub Judge

Jammu all of whom have concurrent jurisdiction to try suit of a particular value. But it does not mean that an exparte decree passed by the sub

Judge can be set aside by the City Judge.

(6) There appears to be a very well under stood principle behind this provision and that is that it is only that court which passed the exparte decree

which is supposed to know the circumstances in which the decree was passed. Further such a court is in a comparatively better and more

advantageous, position to decide whether the decree passed exparte can be set aside or not as that court already had an occasion to deal with the

case.

(7) In the present case even when the court of Addl. District Judge was court of concurrent jurisdiction in respect of matter which are assigned to it

by the District Judge, it remains a court having its existence and entity wholly different from that of the District Judge and cannot be any strict of

reasoning be considered to be the court which passed the decree.

(8) Mr. Avtar Singh relied on a judgment of this court in Ram Lal Vs. Ajit Kaur A. I. R. 1962 J&K 42.

(9) In that case what was held was that an application under the Hindu Marriage Act after the same had been instituted before the District Judge,

could be transferred for disposal to the Additional District Judge and that the court of the Additional District Judge was a District Court for

purposes of Hindu Marriage Act. That question is not however, in issue in this case. If the original application under Section 9 of the Hindu

Marriage Act had been transferred by the District Judge to the Additions District Judge; or disposal and if the Additional District Judge would have

passed an exparte decree in favour of the petitioner, there would have been no illegality in that but here the case is otherwise. The decree in the

present case having been passed by the District Judge he could not ask any other court to undo what he himself had done. The order of the

Additional District Judge therefore, setting aside the exparte decree passed by the District Judge was wholly without jurisdiction and so was the

order of the District Judge transferring the application under 0. 9. Rule 13 C. P. C. to the Additional District Judge, Jammu for disposal. The

power of the District Judge to assign the cases to the Addl, District Judge under the civil courts Act must be deemed to be subject to the

provisions of C. P. C. relating to jurisdiction pecuniary, territorial or otherwise.

(10) The revision application is accordingly allowed, the order of the Additional District Judge, Jammu, is set aside and the application for setting

aside the exparte decree transferred by the District Judge to the court of the Additional District Judge is transferred beck to the court of the District

Judge, who will now himself dispose of the same in accordance with law. Counsel for the parries shall appear before the District Judge, Jammu on

September 20. 1974 for further directions in the case.