Santhamani vs S.N. Somasundaram

Swamikkannu, J.—This is a revision petition filed by the wife (respondent in O.P. 110 of 1976) alleging from the initial stage to this stage of

revision, that she had not received summons in this case of a petition that had been filed by her husband before the trial court under S. 13 of the

Hindu Marriage Act, 1955, praying for divorce, on the ground of adultery. Mr. M.R. Narayanaswami, the learned counsel for the petitioner,

submits that the signature found in Ex. C1, the postal acknowledgement, was contested as one not having been put by the petitioner herein, and as

a matter of fact, one V.D. Mahajan, a handwriting expert had been asked to submit his report and that the said report which was in favour of the

petitioner, was also submitted to the court, but for reasons best known to both sides, the same had not been accepted in this case.

The petitioner had examined herself as P.W. 1 and on behalf of the respondent, one Isaac, the postman concerned with Ex. C1, was examined

as R.W. 1, and one R. Govindaswami Pillai was examined as R.W.2. Ex. A is the draft later of Ex. B in the letter head of K.P. Muthuswami

Gounder and Brothers, filed on behalf of the petitioner. On behalf of the respondent, Exs. B1 to B4, were filed before the trial court. Ex. C1, dt.,

12th May, 1976 is the postal acknowledgment in O.P. 110 of 1976 filed by the respondent herein for divorce as mentioned above.

I.A. 1324 of 1977 in O.P. 110 of 1076, as already mentioned, was filed by the revision petitioner herein under O.9, R. 13, C.P.C., before the

trial court to set aside the ex parte order passed against her in O.P. 110 of 1976 on 9th July, 1976, which petition was filed, as already mentioned,

under S. 13 of the Hindu Marriage Act, 1955.

It is relevant in this connection to note that the above O.P.110 of 1976 was filed by the husband against his wife, the revision petitioner herein,

praying to pass a decree of divorce on the ground of adultery as mentioned above. Notice was ordered in the said petition by the learned Second

Additional Subordinate Judge, on 29th April, 1976, by 22nd June, 1976. The respondent, the revision petitioner herein, according to the trial

court, was served by post, on 12th May, 1976. This is the docket entry of the trial court, dt. 22nd June, 1976. Thereafter, on 22nd June, 1976, it

is seen from the entries in the docket of the petition ""Respondent called, absent, set ex parte. Evidence 28th June, 1976."" This entry was made on

22nd June, 1976 by the learned Subordinate Judge. On 28th June, 1976 the evidence of P.W.1 was recorded, Exs. A1 and A2 were marked,

and for further evidence at the request of the learned counsel for the petitioner, it was adjourned to 3rd July, 1976. This endorsement is found as

against the date 26th June, 1970 in the docket entry. On 3rd July, 1976, as the petitioner was not ready, the petition was adjourned to 9th July,

1976. On 9th July, 1976 P.W.2 was examined, and it was mentioned in the docket entry that the claim was proved and that the petition was

allowed as prayed for with costs. This entry is found as against the date 9th July, 1976 in the docket. It is needless to say that a separate order had

been written by the trial court as against which, it is common ground, no appeal has been preferred. The said order also does not contain any other

matter than the docket entry that is incorporated there. We are not very much concerned about that order, because it is only the judgment in

C.M.A. 70 of 1979 of the learned District Judge who sat in appeal against the order in I.A. 1324 of 1977, that is the subject of scrutiny under the

provisions of S. 115, C.P.C. We are now concerned in this revision petition with the question as to whether this Court could interfere by virtue of

the power vested with it under S. 115 of the C.P.C. to revise the judgment of the learned District Judge or to uphold the stand that had been taken

by means of the judgment in appeal made by the learned District Judge.

Mr. M.R. Narayanaswami, the learned counsel for the petitioner, attacked the judgment of the lower appellate court on the ground that it had

not applied its mind in the proper perspective with respect to the question that loomed large before it, but had taken into consideration many

extraneous matters which were not quite relevant and germane to the point at issue. In developing this argument Mr. M.R. Narayanaswami has

also gone deep into the pleadings. As a matter of fact, at one stage, his rhetoric contention was that the ratio decidendi imbedded in the decision of

the Supreme Court in Bipin Chander Jaisinghbhai Shah Vs. Prabhawati, with respect to standard of proof that is required with respect to animus

deserendi was not taken into consideration at all by the lower appellate court and when the decree is one which has the effect of completely

severing the matrimonial tie between spouses, the lower appellate court ought to have applied its mind in dealing with the order of the trial court in

appeal and viewed the matter in the proper perspective. In other words, Mr. M.R. Narayanaswami contends that as per the provisions of S. 23 of

the Hindu Marriage Act, 1955, the proof contemplated itself shows, the gravity of the question involved in a petition filed under S. 13 of the Hindu

Marriage Act, 1955, and the failure to have all these before it in construing the matter under O.9, R. 18, C.P.C., in the light of the provisions of

O.5, R. 9, C.P.C., clearly gives jurisdiction to this Court to interfere under S. 115, C.P.C., and nullify the effect of the decision that had been

rendered by way of judgment on appeal over the order that had been pronounced by the trial court in I.A.1324 of 1977. In this regard, Mr. M.R.

Narayanaswami has also taken me through the contents of Ex.C1. His main point of attack with respect to this document is that when the signature

said to have been put by P.W.1 in it had been stoutly denied by her in her evidence and when there is an expert opinion available in the records,

though not exhibited as evidence, is it not the duty of the trial court to have exercised its jurisdiction under S. 169 of the Indian Evidence Act,

1872, and got itself enlightened so as to decide the question relating to the aspect of setting aside the ex parte decree that had been pronounced by

it. This question that emanates as a point of law cannot be brushed aside lightly as one which is without substance, especially when there is an

attack on the signature found in Ex.C1 emanating from the petitioner, who is alleged to be the author of the same. It is common ground that the

opinion expressed by the handwriting expert which of course formed part of the testimony here as a material by way of evidence available on

record, had not been exhibited. The opinion of the handwriting expert was to the effect that the signature found in Ex.C1 is not the one put by the

person who signed the subsequent signatures which were the subject-matter of scrutiny by him. The rhetoric contention that had been pressed into

service by Mr. M.R. Narayanaswami is that the failure to take into consideration the said report thus submitted before the court by a competent

expert relating to handwriting ought to have been the subject matter of action or proceeding by the court itself by putting relevant questions to the

relevant witnesses who were available and the failure to exercise such a jurisdiction vested with it both under S. 165 of the Indian Evidence Act,

1872 as well as suo motu especially when the opinion of the expert is available before court and there is a categorical assertion on the part of

P.W.1 that the signature found in Ex.C1 is not her signature, requires this Court to interfere with the judgment which is subject matter of this

revision, viz, the one pronounced on appeal by the learned District Judge. This Court had perused both the judgment under revision as well as the

order that has been responsible for the emanation of the C.M.A. before the lower appellate court.

The point for consideration is, whether the failure to take into consideration the expert opinion offered by the handwriting expert which is

available on record of course not as evidence, but as one that bad come into existence during the course of the proceedings, in that it came into

existence subsequent to the filing of the petition at the instance of the petitioner herein, requires the court itself to take into consideration the

genuineness or otherwise of the plea thus emanating from P.W.1 regarding her signature found in Ex.C1 especially when Ex.C1 is a court

document.

Mr. S. Gopalaratnam, the learned counsel for the respondent vehemently contends that the argument advanced on behalf of the petitioner herein

cannot be upheld by this Court in view of the fact that it is for the petitioner herein to prove that the signature found in Ex.C1 is not her signature,

and it is not for the courts suo motu to indulge in an enquiry which is extraneous to the point at issue. In other words, he submits that the jurisdiction

contemplated under S. 165 of the Indian Evidence Act, 1872, cannot be said to have been in any way attracted in the present case. Mr.

Gopalaratnam also referred to the decision of this Court rendered by Venkataraman, J. in (Kotha Chelliah v. Alwariah Chetti and Sons) A.A.O.

178 of 1971.

Mr. M.R. Narayanaswami, the learned counsel for the petitioner, referred to the decision of this Court (Suryamurthy, J.) in Nataraja Iyer Vs.

Nacharammal, Both these decisions were with respect to O.5, R. 9 Cl.(2) of the C.P.C. (service of summons by post). It is submitted by Mr.

Gopalaratnam that the view taken by Venkataraman, J. has to be (sic) applied by this Court and that the view taken by Suryamurthy, J. is not

applicable to the facts of this case, because the said decision emanated on the basis of facts which are distinguishable from the facts in the present

case, Mr. Gopalaratnam also referred to the decision in Anaithalayan v. Marudamuihu 1953 1 M.L.J. 302 : 66 L.W. 151 for the proposition that

the failure to take an acknowledgment or to affix the summons as contemplated under O.5, R.17, C.P.C. is cured by the proviso to O.9, R. 13,

C.P.C., enacted in Madras, though the provisions of O.5, R. 17 may be mandatory.

O.9, R. 13 of the C.P.C. as amended by the Madras High Court, reads as follows�

13(1). 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 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.

Provided further that no court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of

summons, if it is satisfied that the defendant had notice of the date of hearing, and had sufficient time to appear and answer the plaintiff''s claim.

(2) The provisions of S. 5 of the Indian Limitation Act 1908 shall apply to applications under sub-R.(1).

Explanation : Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground

other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree.

O.5, R. 9 of the C.P.C. reads as follows�

9 (1) Where the defendant resides in India, whether within or without the jurisdiction of the court in which the suit is instituted, the court may direct

the proper officer to cause a summons under this order to be addressed to the defendant at the place, where he ordinarily resides or carries on

business or works for gain, and sent to him by registered post prepaid for acknowledgment.

(2) Where the summons is returned unserved or the defendant does not appear on the day fixed in the summons, the court may direct that

summons shall be delivered or sent to the proper officer to be served by him or one of his subordinates on the defendant.

(3) The proper officer may be an officer of a court other than that in which the suit is instituted and where he is such an officer, the summons may

be sent to him by post, or in such other manner as the court may direct.

(4) Notwithstanding anything contained in sub-rule (1), where proceedings in court are taken for�

(i) issue of an injunction, or

(ii) punishment of a party for contempt of court, or

(iii) bringing to sale any property in execution of a decree or order of court, notices shall be served only in the manner provided for in sub-clause

(2).

In the instant case, as already mentioned, we are not concerned with the issue involved in the petition and as the case had been disposed of ex

parte, we need not go in to the averments made in the petition or the contentions raised in the counter. What we are now concerned is, whether the

ingredients of O.9, R. 13, C.P.C. have been satisfied so as to set aside the ex parte decree that had been passed by the trial court. Viewing the

entire submissions that have emanated from either side as well as the record available by way of evidence now before this Court, this Court comes

to the conclusion that the judgment under revision requires treatment under S. 115 of the C.P.C. favourable to the petitioner, viz., the wife

(respondent in the O.P.). When the wife, the revision petitioner herein, has specifically averred and also went into the box as P.W.1 and deposed

to the effect that the signature found in Ex. C1 is not her signature, however much there might have been evidence let in by the other side or there

was a flagrant failure on the part of the petitioner, (P.W.1) to examine her father who was available in the very precincts of the court, it does not in

any way afford as a ground for the failure of the trial court to exercise its jurisdiction under S. 165 of the Indian Evidence Act, 1872, and put some

questions and to get the report of the hand writing expert exhibited as a court exhibit and proceed in the matter and arrive at a decision. This is

what exactly is contemplated by the procedural law of the land in conjunction with the basic principles of the law of evidence, viz, the Indian

Evidence Act, 1872. If this is not a case to be dealt with under S. 165 of the Indian Evidence Act what else can be the case to be dealt with by

means of interrogatories ? The Court has got the power to probe into the matter of course, well within its jurisdiction and come to a conclusion

independent of the extraneous circus ancees that may come and indulge in wheeling the actual state of affairs. This is what is expected of by the

provisions of the CPC as due process of law. In the instant case, it is a gross failure to exercise the jurisdiction vested with the trial court, in that the

trial court has failed to make use of the provisions under S. 165 of the Indian Evidence Act, and further enlighten itself, irrespective of the fact

whether evidence was made available by either side or not, in order to get at the truth with respect to the entire aroma that had been created due

to the existence of a signature which is alleged to be not the petitioner''s signature.

Mr. Gopalaratham, the learned counsel for the respondent, finally submitted that for sending the summons, it is not the respondent herein, viz,

the husband, who is responsible, but it is the court and its office which sends summons through post, and as such, there cannot be any stigma

attached to the proceedings which had been actually initiated at the instance of an officer of the court, viz., the Nazir''s section, or any other officer,

who is responsible for posting the same. In other words, he submits that the evidence of the postman as R.W.1 is sufficient to dispel any doubt

relating to the signature in Ex. C1, because the specific evidence emanating from R.W. 1 is to the effect that the signature was put in his presence

by P.W. 1, and that in token of the same, another person''s signature was also obtained on it. Who is that another person? There is certainly a

vacuum around the signature that is found in Ex.C1 is it a male or a female ? Who is he ? Why no question had been put under S. 16 of the Indian

Evidence Act by the trial court to R.W.1, with respect to this ? Can the court simply keep quiet on what has emanated and discuss about the same

later on in its judgment ? Certainly not. The provisions under S. 165 of the Indian Evidence Act had been incorporated for the purpose of enabling

the Court to get enlightened then and there with respect to any reasonable doubt that is created in its judicial mind. As a matter of fact, a reading of

S. 165 of the Indian Evidence Act, 1872 clearly shows that not only relevant, but even irrelevant questions can be asked, provided that the

question emanates at the spur of the moment from the court so as to get itself enlightened, because there is nothing like enlightenment in a case by

way of evidence recorded at the instance of the court itself when the court finds it difficult to get at the crux of the matter, especially when both

sides are unable to help it. Therefore, when this strong weapon with which the court is armed under S. 165 of the Indian Evidence Act, 1872, is

not utilised for proper purposes under the critical circumstances, certainty, it amounts to failure to exercise the jurisdiction with a court which

requires interference by this Court.

The next point that is urged by Mr. S. Gopalratnam, the learned counsel for the respondent, is that the certified copy of the expert''s report

was available with the revision petitioner herein on 25th November, 1978 itself, there is absolutely no explanation offered by the revision petitioner

herein as to why she had kept quiet till 12th January, 1979, the day on which she had been examined as P.W.1. I am unable to find any substance

in this argument because the document is not before this Court now at this stage as a piece of evidence. The fact remains that it forms part of the

immaterial record. Mention is made in this order, not by way of appreciating any evidence or contents therein, but as a fact of the existence of the

same in the record of this case. Under the circumstances, the contention in this regard is rejected as untenable. I have absolutely no ground to

disbelieve the evidence of P.W.1, who is the wife and in whose absence this O. P. had been ordered setting her ex parte and disrupting her

sacramental union with the respondent. Nothing has been brought to my notice even at this stage by the learned counsel for the respondent as to

why the evidence of P.W. 1 should not be believed. The evidence available on record, both oral and documentary, clearly shows that her petition

ought to have been allowed by the lower courts by believing her evidence. But, both the courts below have missed the salient features of the prayer

that had been emulating from the wife (the revision petitioner) and have proceeded to discuss something which is absolutely not germane to the

point. As already stated, no convincing reason had been given by both the courts below for rejecting the evidence of P.W. 1, when she his

specifically stated that summons had not been received by her. Her evidence had not been properly put to test for disbelieving the same. This

makes this Court to allow the petition in toto and set aside the order refusing the prayer for setting aside the ex parte decree in the O.P. Under

these circumstances, the revision petition fallowed. There will be no order as to costs.