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Judgment
R.C. Chavan, J.—This appeal is directed against the order passed by the learned Civil Judge, S.D., Mhapusa rejecting the appellant''s application for setting aside ex-parte decree of divorce.
It is the case of the appellant that she has been residing with the respondent and has 3 children. The bailiff of a Civil Court sought to serve upon her a summons of the divorce petition filed by the respondent husband. Since she was illiterate, she refused to receive it and the bailiff then, pasted it on the front part of the house. She informed her husband, respondent, who took away the summons and told her not to worry. The respondent then, got ex-parte decree of divorce and started harassing her to leave the matrimonial home. Only then, she realised that a decree has been passed against her on 19.4.2003 and, therefore, filed an application for having it set aside in January 2004, claiming that she got knowledge of the decree only on 18.12.2003. There is no dispute that both parties reside together at the same address.
The learned trial Judge held that the petitioner had not made out a case for setting aside the ex-parte decree and that she had been duly served and failed to remain present in the Court. He, therefore, rejected the application by the impugned order.
I have heard both the learned Counsel for the appellant and respondent. Learned Counsel for appellant, amongst other things, sought to rely upon amended provision of Rule 17 of Order V of CPC to the following effect.
If on the date fixed such party is not present, another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address of that party by registered post prepaid for acknowledgment (which prepayment shall be made within one month from the date originally fixed for hearing) and such service shall be deemed to be as effectual as if the notice or process had been personally served.
He submitted that in view of this provision, though the appellant had remained absent, the Court ought to have sent a copy of notice, summons or other process by Registered Post A.D. to the appellant before proceeding further in the matter. Learned Counsel for the respondent submitted that though the rule requires that another date shall be fixed and process shall be sent, this use of word ''shall'', does not necessarily indicate that the provision is mandatory. According to him, the provision is directory. For this purpose, he relied on judgment of Supreme Court in State of Haryana v. Raghubir Dayal reported at 1995 SCC 133 wherein, in context of use of word ''shall'' in Section 4 of the Land Acquisition Act, the Supreme Court observed that clause was not mandatory. This does not, however, answer the question as to why the learned Judge should have deviated from this procedure. Even if the provision is directory, it does not follow that a Court may ignore the provision altogether and refuse to follow it. For not following the directory provision, some reasons ought to have been given. The learned Counsel for the respondent submitted that since this question was not raised before the trial Court, there was no occasion for the trial Court to give any reason.
In any case, when amendment to Rule 17 of Order V made by this High Court requires that notice should be given if party is not present and in the absence of any reason given by the learned trial Judge for not following this provision, it would not be possible to sustain the order refusing to set aside ex-parte decree of divorce. This is on the assumption that this amendment was in force at the time when the ex-parte decree was passed, since learned Counsel for the respondent could not show that it was not so in force. In view of this, appeal is allowed. The impugned order is quashed and set aside. The application of the appellant for setting aside exparte decree of the divorce passed against her, is allowed. The decree of divorce passed in Matrimonial Petition No. 72/02/C dated 19.4.2003, is set aside. The petition is restored to the file of the learned Judge, who shall decide it afresh after giving appellant an opportunity to file written statement, and shall take such evidence as the parties may tender and then decide matter after hearing parties. In order to avoid repeat of situation, which led the parties to this Court, the parties are directed to appear before the Court on 30.9.2008 at 10.00 a.m.