Civil Revision No.1447 of 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Revision No.1447 of 2011(O&M) Date of Decision: March 1, 2011 Sohan Lal .....Petitioner v. Gurbax Kaur .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Vijay Rana, Advocate for the petitioner. ..... RAM CHAND GUPTA, J.(Oral) C.M.No.5802-03 CII of 2011 Requests for placing on record Annexures P1 to P7. The same are allowed subject to all just exceptions. Both the applications stand disposed of accordingly. Civil Revision No.1447 of 2011 The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 1.2.2011, passed by learned Additional District Judge, Jalandhar, Annexure P7, vide which application filed by respondent under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex parte judgment and decree dated 29.5.2008, passed by learned Additional District Judge, Fast Track Court Jalandhar, has been allowed. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned Additional District Judge, Jalandhar. Facts relevant for the decision of present revision petition are that a petition for divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred as the `Act') was filed by present petitioner- Civil Revision No.1447 of 2011(O&M) -2- husband against respondent-wife, in which respondent-wife was proceeded ex parte and ex parte judgment and decree was also passed in favour of present petitioner against respondent. For setting aside the ex parte judgment and decree, application was filed by respondent-wife, which was contested by present petitioner. Issues were framed. Evidence of both the parties was recorded. After hearing both the parties and after considering the entire evidence, the impugned order was passed by learned Additional District Judge, Jalandhar, setting aside the ex parte judgment and decree passed in favour of petitioner-plaintiff. It has been contended by learned counsel for the petitioner that the factum of pendency of divorce petition was in the knowledge of respondent-wife since the very beginning and he has also taken the said plea in other litigation pending between the parties. It has also been contended that service was duly effected by way of publication and hence, learned Additional District Judge, Jalandhar, has committed illegality in setting aside the said decree. Learned Additional District Judge, Jalandhar, allowed the application filed by respondent-wife for setting aside ex parte judgment and decree against her by observing as under:- “10. Perusal of the main petition filed by the respondent against the applicant goes to show that the applicant was shown to be resident of Village Ram Pur, Post Office Lambra, Tehsil and District Jalandhar. It is also revealed that the applicant was never served personally at any stage and she was proceeded against ex parte only when notice on the aforesaid address was published in the newspaper and she failed to appear. During his cross-examination, it was candidly admitted by respondent that in the cause title of the main petition on record, he gave only one address of the applicant and that was of Village Ram Pur. He also admitted that Gurbax Kaur is living at Jawala Nagar rightly from the year 1988 onwards. Once it was in the knowledge of the respondent that the applicant was permanently living at Jawala Nagar right from the year 1988 onwards it clearly shows that he intentionally and deliberately gave wrong Civil Revision No.1447 of 2011(O&M) -3- address of the applicant at the time of filing main divorce petition. Although he alleged that he also gave the addresses of the applicant of Jawala Nagar Colony at Maqsudan, Nurpur Colony, Jalandhar, and Saipur Colony, but perusal of petition goes to show that only one address of village Ram Pur was given. Thus, the respondent misled the Court at the time of obtaining order of substituted service by way of giving wrong address of the applicant. 11. Although it is proved on record that in another lis pending between the parties, the respondent filed replication, Ex.R1 on 24.1.2008 in which passing reference of pendency of one divorce petition was made, but neither the name of the court nor any of the details of title and next date in such divorce petition was given. From such passing reference without disclosing name of the court and next date of hearing the applicant was unable to know that such divorce petition was pending in the court of Sh.I.S.Bajwa, learned Additional District Judge, Fast Track Court, Jalandhar. It seems that the respondent deliberately suppressed this fact from the applicant so that she may not put appearance and contest the same. Thus, it cannot be said that the applicant gathered knowledge about the pendency of such petition from such vague averment in applicant Ex.R1. 12. Although the respondent has also proved on record one application Ex.R2 dated 17.9.1998, filed in a suit pending between the parties in the court of Civil Judge, (Junior Division), Jalandhar, in which passing reference of such judgment and decree of the court of Shri I.S.Bajwa, learned Additional District Judge, Jalandhar was given and copy of judgment and decree has been attached, but there is no document on record from the side of the respondent that at the time of filing such application, the applicant or her counsel were putting appearance or that such application was filed in their presence. Such application might have been filed intervening two dates and it was the duty of the Civil Revision No.1447 of 2011(O&M) -4- respondent to prove that such application was filed in the presence of applicant and her counsel. Hence the respondent has failed to prove that the applicant gathered information of ex parte judgment and decree of 17.9.2008 when such application Ex.R2 was filed in the other lis. So, keeping in view such circumstances there was no earlier occasion for the applicant to know about the passing of such ex parte judgment and decree than the first week of January 2009, when she approached her counsel and thus the present application was filed well within period of 30 days from the date of gaining knowledge and thus it was within the period of limitation. Once the respondent gave wrong address of the applicant, such substituted service through publication is illegal and thus the same cannot be said to be a valid service.” All the pleas which have been taken by petitioner-husband have been duly dealt with by learned Additional District Judge while passing the impugned order. The present petitioner-husband has himself admitted that respondent-wife has been residing at Jawala Nagar since the year 1988 onwards, however, he had given wrong address of respondent-wife at the time of filing of the main divorce petition. He had given her address of village Ram Pur instead of giving address of Jawala Nagar. No summons were sent for service of respondent-wife at her address of Jawala Nagar and hence, it has been rightly observed by learned Additional District Judge, Jalandhar, that the order for effecting substituted service by way of publication on the wrong address of respondent-wife cannot be said to have been passed legally. Rather the order has been obtained by misleading the Court. Hence, in view of the aforementioned facts, it cannot be said that any illegality or material irregularity has been committed by learned Additional District Judge, Jalandhar, in passing the impugned order and that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court. Moreover, law is well settled in Surya Dev Rai v. Ram Chander Rai and others 2004(1) RCR (Civil) 147 that mere error of fact or law cannot be corrected in the exercise of supervisory jurisdiction by this Civil Revision No.1447 of 2011(O&M) -5- Court. This Court can interfere only when the error is manifest and apparent on the face of proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law and that a grave injustice or gross failure of justice has occasioned thereby. Hence,| the present revision petition is, hereby, dismissed being devoid of any merit. 1.3.2011 (Ram Chand Gupta) meenu Judge