Civil Revision No. 6566 of 2007 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 6566 of 2007 Date of decision: 21.01.2009. Manjeet Singh ...Petiitioner Versus Smt. Reena ...Respondent CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. S.K.Garg Narwana, Advocate, for the petitioner. Mr. Kunal Chhoker, Advocate for the respondent. ***** S.D.ANAND, J. The petitioner is in revision against the order dated 6.10.2007 vide which the learned Trial Judge set aside the exparte decree dated 7.6.2006. The circumstances, relevant for disposal of the controversy may be indicated hereunder in the first instance:- The petitioner-husband Manjeet Singh filed a plea under Section 13 of the Hindu Marriage Act (hereinafter referred to as “the Act”) to obtain dissolution of his marriage with respondent-wife who (respondent- wife) entered appearance (through her learned counsel), for the first time, on 28.1.2005 and the matter was adjourned to 17.2.2005 for the presence of the parties in the context of making of reconciliation endeavour. On the adjourned date, the petitioner-husband appeared but the wife did not appear. Her brother turned up and informed the Court that she was unwell. Civil Revision No. 6566 of 2007 -2- **** The matter was adjourned to 3.3.2005. On that date too, the respondent- wife was not present and the matter was adjourned to 28.3.2005 for production of the parties. On that date, the parties are not noticed to have appeared to have appeared. However, a duly engaged counsel appeared on behalf of the wife and the matter was adjourned to 11.4.2005 for the presence of the parties for effecting reconciliation. The wife did not appear on 11.4.2005. Ultimately, both the parties appeared in person (with their respective counsel) on 28.4.2005. The Court noticed that reconciliation efforts had been made but there was no fruitful result thereof. The matter was adjourned to 26.5.2005 for filing of written statement. On filing of written statement on 2.9.2005, the matter was adjourned to 29.9.2005 for filing of replication and framing of issues. After the issues came to be framed on 29.9.2005, the matter was adjourned to 17.11.2005 for the evidence of the petitioner-husband. No evidence was present on that date and the matter was adjourned to 1.2.2006. On that date (i.e. 17.11.2005) the respondent appeared in the Court in person. On 1.2.2006 too the respondent-wife appeared in person. Two witnesses on behalf of the petitioner-respondent were present. There was a request for adjournment by the respondent-wife on the plea that her counsel was not available on that date. The matter was adjourned to 23.3.2006 subject to payment of Rs.200/- as costs. It was made clear in the order that it would be for the respondent-wife to ensure the presence of her counsel or else evidence shall be recorded in the absence of her counsel. On 23.3.2006, the costs of adjournment (imposed on 1.2.2006) were paid. Two witnesses on behalf of the petitioner were present but could not be examined as the respondent-wife filed an application for adjournment as her counsel was unwell. The matter was adjourned to 24.4.2006. None appeared on behalf Civil Revision No. 6566 of 2007 -3- **** of the respondent on that date through out the day and exparte proceedings were ordered against her. The matter was adjourned to 7.6.2006 for recording of exparte evidence of the petitioner. On the adjourned date, the exparte evidence adduced by the petitioner-husband was recorded, arguments were heard and the petition was allowed exparte. The respondent-wife filed an application under Order 9 Rule 13 of the C.P.C. on 8.9.2006. As the plea filed was apparently time barred, the respondent-wife applied for condonation of delay by averring that grant of exparte decree came to her notice on 20.8.2006 only when “a common relative of the parties who told the respondent that the petitioner has obtained an exparte divorce against the respondent”. She applied for the certified copies of judgment and decree on 24.8.2006. The copies were supplied to her on 28.8.2006. It was on perusal thereof that it came to her notice that her counsel did not enter appearance on 24.8.2006. Further averment is that she had been told by her counsel that she need not appear in person and whenever her presence is required, she would be informed accordingly. The plea raised thereby is that she refrained from appearing in person only on account of instructions of her counsel. Learned Trial Judge accepted the presentation made by the respondent-wife and set aside the impugned exparte decree. It was held that period of limitation would be reckoned with effect from the date of knowledge i.e. 28.8.2006. On that premise, it was held that plea for setting aside having been filed on 8.9.2006 was within limitation. Learned counsel, appearing on behalf of the petitioner- husband, argues that entire approach of the learned Trial Judge was inappropriate in view of the fact that the respondent-wife was fully in the know of pendency of the proceedings and it was for her to have stayed in Civil Revision No. 6566 of 2007 -4- **** touch with proceedings of that case. The plea is resisted by the learned counsel for the respondent who argues that, in view of the non appearance of the learned counsel, the Court ought to have issued a fresh notice to the respondent. It is also argued that a such like controversy need not be disposed on technicalities. Reliance, in support of the advocated view, is placed on K.Ganesan Vs. Sukunthalal and others 2001(2) Apex Court Journal 396 (S.C.), Ranjeet Kumar Vs. Sarla Devi 1989 Civil Court Cases 479 (Rajasthan), Pravinchandra Vs. Murli Agro Products Ltd. 2005 (3) Civil Court Cases 614 (Bombay), Rajesh Kumar Vs. Des Raj Arora and others 2006(2) Civil Court Cases 708 (P&H) and Veerpal Kaur Vs. Rashpal Singh 2006 (4) Civil Court Cases 92 (P&H). I have heard Mr. S.K.Garg Narwana, learned counsel for the petitioner and Mr. Kunal Chhoker, learned counsel appearing for the respondent and have carefully gone through the record. The impugned order deserves to be set aside. The reasons therefor are as under:- The respondent-wife was duly represented by a counsel. She twice changed Counsel midstream. She had been herself appearing in person on certain dates of hearing. She was, thus, in the know of the fact of pendency of the petition against her. In that view of things, she cannot, at all, be heard to plead that the fact of exparte decretal petition came to her notice on 28.8.2006. She was hotly contesting the petition. As a normal person, she would be expected to stay in constant touch with her learned counsel. It is neither here nor there for her to aver that she stayed away from the proceedings on the advice of her Counsel who informed her that her presence was not required. Assuming, for the sake of arguments Civil Revision No. 6566 of 2007 -5- **** that she rightfully accepted the advice given by the counsel, even then she could not be expected to be oblivious of the proceedings in the case. The petition, after all, pertained to her matrimonial life. It is not expected that a spouse would leave things completely in the hands of the counsel and would not like to stay in touch with the goings-on at the trial. Even otherwise, as per own averment of the respondent-wife, the certified copies of the impugned judgment and decree were delivered to her on 28.8.2006. Inspite thereof, application under Order 9 Rule 13 C.P.C. came to be filed on 8.9.2006. The facts are apparent enough to indicate that the respondent-wife had not been acting bonafide in the entire context. Reliance, placed by the learned counsel for the respondents upon Veerpal Kaur's case, Rajesh Kumar's case, Peravinchrda's case, K.Ganeshan's case and Ranjeet Kaur's case (supra), is misconceived. In Veerpal Kaur's case, the exparte proceeding against the wife had been ordered on the basis of a report of refusal recorded by the Process Server. In Rajesh Kumar's case, exparte proceedings were ordered on the basis of fact that the registered AD cover issued in the name of the defendants had not been received, served or unserved, for a period of more than one month. The inference authorised by the provisions of Order 5 Rule 19 CPC was invoked. The defendants were deemed to have been duly served and were ordered to be proceeded exparte. In Pravinchandra's case too, the defendant was a company. The service had been effected upon a named employee of the company. On point of fact, it was found that the named employee aforementioned was not authorised to receive the summons. The circumstances under which the exparte proceedings were ordered in K.Ganesan's case are not apparent from the judicial pronouncement. Learned counsel cannot, thus, draw any parity between the facts in that Civil Revision No. 6566 of 2007 -6- **** cases and the case before this Court. In Ranjeet Kaur's case, exparte proceedings were ordered on the basis of substituted service. All these cases are differently placed because in the case before this Court, the respondent-wife had been duly served and she had entered appearance through a counsel and in person as well. In the light of the fore-going discussion, it is apparent that impugned order cannot be sustained. The petition shall stand allowed. The impugned order shall stand quashed. The stay order dated 18.12.2007 shall stand vacated. The vacation of stay order shall be communicated to the Court concerned forthwith. January 21, 2009 (S.D.Anand) Pka Judge