IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY THE SEVENTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE A.GOPAL REDDY and THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR CIVIL MISCELLANEOUS APPEAL NO : 842 of 2009 (Appeal under Order 43 Rule 1 and 2 CPC and Section 28 of Hindu Marriage Act against the order/decree in OP no. : 332 of 2005 dated 22/06/2009 on the file of the court of the Additional Senior Civil Judge, Guntur) Between: Meda Prabhakar Rao S/o Devadanam R/o Bavaji Nagar, 5th lane, Sangadigunta, Guntur - 3. ..... APPELLANT AND Meda Ali Tatta Lakshmi W/o Prabhakar Rao R/o ST Colony, Near Bavajinagar, Sangadigunta, Guntur - 3. .....RESPONDENT Counsel for the Appellant:MR.MD.SALEEM Counsel for the Respondent No.: . The Court delivered the following JUDGEMENT: THE HON’BLE SRI JUSTICE A.GOPAL REDDY AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CMA No.842/2009 ORAL JUDGMENT (per the Hon’ble Sri Justice A. Gopal Reddy) This appeal by the appellant-husband is directed against the orders of the I Additional Senior Civil Judge, Guntur dt. 22-6-2009 passed in IA No.841/2006 in HMOP No.332/2005, whereunder petition filed under order IX Rule 13 CPC to set aside the ex parte decree of divorce obtained by the appellant-husband on 27-1-2006 was allowed. For the sake of convenience, the appellant herein will be referred to as “the husband” and the respondent herein will be referred to as “the wife”. The husband instituted the above OP against his wife to dissolve the marriage solemnized between them on 6-10- 2004 by granting a decree of divorce, in which he obtained an ex parte decree on 27-1-2006. On coming to know of the same, the wife filed the above IA stating that both of them fell in love with each other three years prior to their marriage. Since there was resistance from the family members of both the parties, she gave a representation to the Superintendent of Police, Guntur on 27-9-2004, who forwarded the same to the Circle Inspector of Police. Whereupon, the husband also gave a representation on 4-10-2004 stating that he is in absolute love with her and he is ready to lead the conjugal life and wanted a legal marriage to be performed. Due to the fear from his family members, the husband seeks protection from the police. The Circle Inspector, West Circle, Guntur gave assurance and the marriage was performed at the intervention of the police and a certificate was also given to that effect. They are happily leading marital life. The brother of the husband is a Mandal Revenue Officer, who created lot of trouble. All the members of the husband are not having good terms, as the husband studied MBBS and was doing house-surgeon, and she studied upto intermediate. The husband set up a family at Mosque street in the house of one Apparao situate at Railpet, Guntur for a period of one year where they lived happily. Thereafter, the husband shifted the house to RTC Colony, Guntur, where they lived for two months. The husband had informed her that he is going for higher studies to Kakinada and asked her to stay with her grand parents. She turned down the said request. At the instructions of her husband, she had taken a room and living separately at Kakinda. The husband has created confidence in her and she followed without any second thought. While so, the husband brought some papers to her while both of them were living at Railpet, Guntur in the month of November, 2005 and took her signature representing that he would initiate legal proceedings against her parents since they were quarelling with him and he also signed underneath her signature. She was living with her husband till the end of May, 2006. On 29-6-2006 some of the relatives of her husband told her parents that he had married another girl on 23- 6-2006 at Pedakakani temple. Thereupon, she met her parents and made enquiries about the second marriage. On coming to know of her husband filing HMOP seeking divorce and obtaining ex parte decree on 27-1-2006 she filed the present petition to set aside the ex parte decree stating that her husband played mischief on her as well as on the court and obtained her signature by suppressing true facts. The respondent-husband filed a counter opposing the petition. During the course of enquiry before the trial court, the wife examined herself as P.W.1 and her father was examined as P.W.2. Exs.A-1 toA-6 were marked on behalf of the wife. The husband examined himself as R.W.1 and his father was examined as R.W.2. Ex.B-1 to B-4 were marked on behalf of the husband. Exs.X-1 toX-8 were marked by the court. The trial court after considering the evidence adduced by the parties concluded that the husband followed the Process Server without there being any direction given by the court nor any request made by the Process Server and it fillips the wife’s contention that her husband brought the Process Server and introduced her as his friend and asked her to sign the notice to enable him to initiate legal proceedings against her parents. The husband did not adduce any evidence either by filing affidavit of the Process Server or by examining him. There is no unnaturality in the wife’s contention that she was honestly misled by the husband while getting her signature on the notice served relating to the main petition, and it is for the husband to give explanation what propelled him to follow the Process Server in the absence of any direction given by the court or express request from the Process Server and no sufficient explanation is forthcoming from the husband, and holding so set aside the ex parte decree of divorce passed against the wife. Learned counsel for the petitioner strenuously contended that in the absence of any application condoning the delay in filing the application, the trial court ought not to have entertained the application filed by the wife under Order IX Rule 13 CPC. We do not see any force in the contention put forth by the learned counsel for the appellant-husband. It is well settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior (S.P.CHENGALVARAYA NAIDU V. JAGANNATH=(1994) 1 SCC 1). When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be performed for the other side cannot claim to have vested right in injustice being done because of non deliberate delay. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. (COLLELCTOR, LAND ACQUISITION, ANANTNAG V KATIJI (AIR 1987 SC 1353=(1987) 2 SCC 107). Once the trial court satisfied that the appellant-husband played fraud in obtaining an ex parte decree, it is its duty to set aside the ex parte decree and restore the suit to its original file, and decide it on merits, and it accordingly do so. No illegality is discernible in the discretion exercised by the trial court in allowing the petition filed under Order IX Rule 13 CPC. The Civil Miscellaneous Appeal fails and is accordingly dismissed. _______________ A. GOPAL REDDY, J __________________ B. CHANDRA KUMAR,J Date:17-08-2007 kmr