Pinki Devi vs Aditya Kumar Chandel

Heard learned counsel for the appellant on the point of limitation.

This Interlocutory Application has been filed for condonation of delay of 60 days in filing the appeal. The appeal is filed by the appellant wife, against the order dismissing her application for setting aside the ex-parte decree of dissolution of marriage, passed against her.

It is stated in the limitation petition that she was not having the sufficient means for filing the appeal, due to which there was delay of 60 days in filing the appeal.

In that view of the matter the delay in filing the appeal, is hereby, condoned.

This Interlocutory application is accordingly, allowed.

F.A. (D.B.) No. 395 of 2018

Heard learned counsel for the appellant wife and the learned counsel for the respondent husband.

This appeal is directed against the order dated 1.10.2013, passed by the learned Principal Judge, Family Court, Palamau at Daltonganj, in Misc. Case No. 02 of 2011, whereby the application filed by the appellant wife for setting aside the ex-parte decree of dissolution of marriage, passed against her, has been dismissed by the Trial Court below.

The impugned order clearly shows that there was an ex-parte decree of dissolution of her marriage in Matrimonial Case No. 10 of 2008, passed on 14.7.2009. The application was filed on 24.10.2011, by the appellant for setting aside the said ex-parte judgement and decree. Hence there was a delay of two years and three months.

The point taken by the appellant wife in her petition for setting aside the ex-parte decree was that, after her marriage with the respondent in the year 2005, she was all along living with her husband, and concealing this fact, the notice was got issued at her parent's place. Though there is denial of the fact that the notice was even received by the father of the appellant, but the Court below has given the finding that the same was received by the father of the appellant. The Trial Court below has come to the conclusion that it is not the case of the petitioner that her father had got adverse interest against her, and accordingly, due to the service of notice upon him, the Trial Court has held that the appellant had got full knowledge about the case and no case was made out for setting aside the ex-parte decree.

As regards the limitation of two years and three months, the Trial Court has held that since the ex-parte judgement and decree was passed on 14.7.2009 and the application for setting aside the ex-parte decree was filed on 24.10.2011, there was delay of about two years and three months, and in view of the fact that the petitioner had full knowledge about the matrimonial suit and she did not appear to contest the case deliberately, there was no case for condonation of the delay. Another point taken by the Trial Court below is that the limitation application was filed belatedly at the arguments stage, and as such it could not be entertained.

Learned counsel for the appellant submitted that the impugned order passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, the fact remains that according to the appellant's case, she was all along living with her husband and concealing this fact the notice was sent to her parent's place. It is submitted by the learned counsel for the appellant that though it is disputed that the notice was ever received by the father of the appellant, but for arguments sake, even if it is accepted that the same was served upon the father of the appellant, this does not mean that the notice was served upon the appellant also, who admittedly is a major, and no adverse inference could be drawn simply for the fact that it was not stated that her father had got adverse interest against her. It is further submitted by learned counsel for the appellant that the limitation petition filed by the petitioner could not have been dismissed by the Trial Court below, in the manner it has been dismissed, simply on the ground that it was filed at the arguments stage, or on the ground that the appellant was having the knowledge about the proceeding in the Court below, and she had not appeared deliberately. Accordingly, it is argued that the impugned order cannot be sustained in the eyes of law.

Learned counsel for the respondent husband, on the other hand, submits that it is false to say that the appellant was living with him, rather she was living with her parents and the notice was served upon the father of the appellant, and it shall be deemed to have been validly served upon the appellant as well. It is further argued by the learned counsel for the respondent that there is no illegality in the impugned order in not condoning the delay as well, in view of the fact that the limitation petition itself was filed belatedly.

Having heard learned counsels for both the parties and upon going through the record, we find that admittedly it is not the case of either of the parties that the notice was served upon the appellant personally. Even, according to the respondent's case, the notice was served upon the father of the appellant, which according to the appellant's case was never communicated to her. The impugned order reveals the fact that the father of this appellant was examined as a witness, and he has denied his signature on the acknowledgement of the notice. The learned Principal Judge of the Family Court below has himself compared the signature of the witness on the acknowledgement of the notice, with his signature on his deposition, and has given the finding that both the signatures are the same. This clearly shows that the Court below has wrongly assumed the role of handwriting expert, and in spite of the specific denial of the signature by the witness, has given a finding against him. This apart, even if it is assumed for the arguments sake, that the notice was served upon the father, this could not have been taken by the Trial Court below also as the valid service of notice upon the appellant personally, particularly, in view of the fact that the appellant had attained the majority and she is a separate legal entity in herself, apart from her father, and everyone else. The service of notice on father, or even on any other family member, could not be taken as service of notice on the appellant as well, simply because it was not stated that her father had any adverse interest against her. The Trial Court below has committed a manifest error of law in giving such a finding. As such, the application filed by the appellant for setting aside the ex-parte decree could not have been dismissed on this ground.

The other grounds for dismissing the application filed by the appellant, that the application was time barred, and the limitation could not be condoned in view of the fact that the appellant had full knowledge about the matrimonial suit and she did not appear to contest the case deliberately, and that the limitation application was filed belatedly at the argument stage, also suffer from inherent illegality, in view of the fact that the notice served upon the father of the appellant could not be taken as service of notice on the appellant as well. Thus no knowledge could be imputed against the appellant from the date of the ex-parte decree. As such, the rejection of the limitation petition by the Trial Court below on the ground that the appellant was having the notice of the proceeding, cannot be sustained in the eyes of law. The limitation petition could not have been dismissed also on the ground that it was filed at the arguments stage. Even if it was filed it was filed in the arguments stage, the same had to be properly decided and adjudicated in accordance with law and could not be dismissed, simply for the reason that it was filed belatedly.

For the aforesaid reasons, we find that the impugned order dated 1.10.2013, passed by the learned Principal Judge, Family Court, Palamau at Daltonganj, in Misc. Case No. 02 of 2011, cannot be sustained in the eyes of law, which is accordingly, set aside. The matter is remanded back to the Trial Court below, for passing the order afresh, in view of the findings given by us hereinabove, and in accordance with law, within a period of two months for the date of communication of this order.

This appeal is accordingly, allowed, with the direction as above.