CRA/1791/1997 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1791 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= LALITKUMAR BHAGWANJI DOSHI - Applicant Versus SARLABEN LALITKUMAR DOSHI - Opponent ========================================================= Appearance : MR RD DAVE for Applicant: MR MB GANDHI for Opponent: ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 25/06/2008 ORAL JUDGMENT 1. Heard learned counsels for the parties. The applicant has preferred this Civil Revision Application against the order dated 19/11/1997 passed by Learned City Civil Court, Ahmedabad in Restoration Application No. 787 of CRA/1791/1997 2/6 JUDGMENT 1996 allowing the Restoration Application filed by the respondent / original defendant. 2. Facts in brief deserves to be set out as under for appreciating the controversy in the matter. The marriage of the plaintiff and defendant had taken place on 30/5/1970 at Jamnagar. Thereafter they were residing at Bombay. Out of this wedlock the couple has one son and one daughter respectively aged about 34 years and 29 years. The plaintiff husband thereafter came to be transferred to Ahmedabad and husband & wife thus started residing at Ahmedabad. It was the case of the plaintiff husband that, on account of frequent quarrels the cohabition had become intolerable. The defendant was left of her own volition for Bombay to reside with her children in the same flat. The husband/plaintiff had to file Hindu Marriage Petition No. 385 of 1994 on 21/10/1994 in the City Civil Court, Ahmedabad seeking decree of divorce on the ground under Section 13 of Hindu Marriage Act, namely cruelty and desertion. The trial Court issued summons which was served by registered post A.D. on 6/12/1994. The defendant did not appear and after recording deposition of the husband, ex-parte decree for divorce came to be passed on 1/9/1995 in HMP No. 385 of 1995 resulting into dissolution of marriage between the plaintiff and defendant. As record indicate the plaintiff thereafter married one Bhavna Radhekishan Shah on 15/10/1995, i.e. after a period of 45 days from the date of decree. The defendant wife filed Restoration Application on CRA/1791/1997 3/6 JUDGMENT 21/10/1995 contending inter alia that she was not aware about filing of the suit and disputed her signature on the acknowledgment due card which was relied upon by the Court for proceeding ex-parte treating the summons as duly served upon the defendant wife. The defendant also raised contention with regard to jurisdiction of the trial Court. The application was opposed by the plaintiff husband and the objection/purshish came to be filed on 6/11/1995 wherein the plaintiff declared his second marriage with Bhavnaben and prayed for dismissal of the Restoration Application. 3. The trial Court on 19/11/1997 allowed the Restoration Application and set aside ex-parte decree passed in HMP No. 385 of 1995 dated 1/9/1995 and directed the suit be proceeded with. Against this order present Revision Application is preferred. 4. Shri Dave, learned counsel for the applicant / original plaintiff submitted that the summons was duly served as the signature of the defendant also could be verified from other undisputed documents duly signed by the defendant. Mere denial would not be sufficient to refute the strong presumption in favour of summons being duly served as the acknowledgment card bearing signature of the defendant wife was rightly relied upon by the concerned Court for proceeding ex-parte in the matter. Shri Dave also submits that the suit was filed on 21/10/1994 and ultimately the Court had to pass ex parte decree on 1/9/1995. Thus there was sufficient time gap between institution of suit and disposal of the matter ex CRA/1791/1997 4/6 JUDGMENT parte, which also should have weighed with the learned trial Court before ordering order of restoration application. 5. Shri Dave submits that the purshish where under plaintiff husband declared that after the appeal time had elapsed he contracted another marriage, also could have been weighed in its proper perspective while considering the restoration application. Even otherwise also the passage of time and development in the interregnum clearly indicate that the Civil Revision Application deserves to be allowed as the parties have put up with this circumstances since long and now reviving the suit and or permitting the suit to be proceeded with is likely to create a situation which certainly would not be in the interest of justice and may have very serious adverse impact upon the lives of not only the couple but those who are related to the couple in a different capacity. 6. Against this, the present situation if perpetuated, this does not in any way making much difference in the lives of either the couple or the relatives. Therefore also the Civil Revision Application deserves to be allowed. 7. Shri Gandhi, learned counsel for the respondent has supported the order of the trial Court passed below Restoration Application, however stated that despite of repeated letters and intimations sent to instructing Advocate Mr. P.D. Vyas appearing in the lower Court, Shri Gandhi is not getting any response or instructions in the matter. Shri Gandhi fairly stated that looking to the CRA/1791/1997 5/6 JUDGMENT age of both the parties who are about 56 and 55 years old, and considering the fact that they have separated since last many years, there is no possibility of reunion especially when the plaintiff got married to another lady before 11 years. Therefore, no purpose will be served by rejecting the Civil Revision Application. 8. This Court is inclined to allow the Civil Revision Application only keeping in view the development in the interregnum period and the approach of the parties to the litigation. The fact remains that the plaintiff contracted second marriage only after the lapse of period for filing appeal. The ex parte decree was passed in his favour and he was legitimately entitled to contract second marriage after lapse of period of appeal. The fact of second marriage of plaintiff was placed on record by purshish/reply and when second marriage is pleaded to be a valid ground for resisting restoration it was a duty cast upon the trial Court to record its unequivocal finding with regard to fraud and or signature not being tallying. In absence of any such unequivocal clear finding with regard to fraud and in absence of any other cogent evidence, refuting presumption in favour of the serving of the summons, the restoration order could not have been allowed by the trial Court. The Civil Revision Application therefore deserves to be allowed and is accordingly allowed. 9. In the result, the order dated 19/11/1997 passed by Learned City Civil Judge (Court No.13) below Restoration Application No. 787 of 1995 is hereby CRA/1791/1997 6/6 JUDGMENT quashed and set aside and the original decree for divorce dated 1/9/1995 passed in HMP No. 385 of 1994 by City Civil Court, Ahmedabad, is restored. Rule made absolute. No costs. [ S.R. BRAHMBHATT, J ] /vgn