Rajiv Saxena vs Subha Saxena (Smt.)

A.K. Sharma, J.

Arguments heard.

Petitioner has filed this revision petition u/s 115 of C.P.C. against order dated 27.02.2012 passed in M.J.C. No. 8/11 by learned Additional District Judge, Datia, setting aside ex-parte decree by relying application filed under Order 9 Rule 13 read with Section 5 of Limitation Act by respondent Smt. Subha Saxena. Ex-parte decree has been passed for divorce against respondent Smt. Subha Saxena on petition filed by petitioner/husband Rajiv Saxena. Notice of which has been sent to the wife at her address at village Aagodha, district Ferozabad. Further the paper publication was also made by mentioning address of Aagodha, district Ferozabad, while the plaintiff himself has mentioned in cause title of the application that the present residence of his wife is at Kotla Road, Tilak Nagar, Ferozabad, U.P. It is an admitted fact that no notice has been sent to the wife at her present address at Ferozabad.

Learned counsel for the petitioner has submitted that the wife and her father has given contradictory statement but this does not affect their case. The plaintiff himself has given her present address as Kotla Road, Tilak Nagar, Ferozabad, U.P. where no summons were sent for appearance.

Learned counsel for the petitioner has drawn attention towards provisions of Order 9 Rule 13 of C.P.C. and submitted that an ex-parte decree cannot be set-aside on the ground of irregularity in service of summons. If the defendant had the notice of date of hearing and sufficient time to appear and answer the plaintiffs claim.

In support of his arguments, he has cited judgment of Hon''ble Apex Court passed in the matter of Sunil Poddar and Others Vs. Union Bank of India, and judgment of this Court passed in the matter of Javed Khan Vs. Avtar Singh, and another judgment of this Court passed in the matter of Shri Sharda Prabandhak Samiti, Maihar and another Vs. Indrasen Jali, . In the present case, petitioner was fully aware that his wife is living at Ferozabad as he has mentioned her present address at Ferozabad in the petition but no notice has been sent even after the notice sent to village Aagodha is unserved to the address of wife at Ferozabad, therefore, the mischief of petitioner cannot be allowed for giving him benefit of judgments cited above. The matter relates to matrimonial dispute in which personal service of his spouse is necessary. Even Court was duty bound to see that the notice has been sent to the wife where she is living at the time of filing of the petition or to the address which has been mentioned in the petition. Therefore, learned trial Court is justified in passing the impugned order in setting aside the ex-parte decree. Therefore, petition is dismissed.