Civil Revision No.4835 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.4835 of 2011 Date of Decision:11.08.2011 Rajan Kumar ......Petitioner Versus Neelam Rani .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Suveer Sheokand, Advocate, for the petitioner. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, which require to be noticed for the limited purpose of deciding the sole controversy, involved in the instant revision petition and emanating from the record are, that Rajan Kumar son of Sant Lal-petitioner husband filed a divorce petition against his wife Neelam Rani-respondent-wife. Although, the respondent was not served, ex parte proceedings were ordered against her. Consequently, the divorce petition was accepted and ex parte decree of divorce, dissolving their marriage was passed, by the matrimonial court, by means of ex parte decree dated 07.04.2008. 2. As soon as, the respondent-wife came to know about the ex parte decree, she moved an application for setting aside the same, under Order 9 Rule 13 read with Section 151 CPC, inter alia, on the ground that she was never served and ex parte proceedings were illegally ordered against her. 3. The petitioner husband contested the prayer of the respondent wife and filed the reply, in which, it was stated that since she refused to accept the notice, so, ex parte proceedings were rightly ordered against her. 4. The trial Judge, after taking into consideration the entire material on record, accepted the application and set aside the ex parte decree of divorce dated 07.04.2008, by virtue of impugned order dated 30.05.2011. Civil Revision No.4835 of 2011 2 5. Aggrieved by the impugned decision of the trial Judge, the petitioner husband preferred the present revision petition, under Article 227 of the Constitution of India. 6. After hearing the learned counsel for the petitioner, going through the record with his valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the instant petition in this context. 7. As is evident from the record that the trial Judge passed the ex parte decree of divorce dated 07.04.2008 and the respondent wife moved an application for setting aside the same, invoking the provisions of Order 9 Rule 13 CPC, which postulates that, in any case, in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree passed against him. 8. As is clear that, the trial Judge has recorded a finding of fact that as the mandatory provisions of Order 5 Rule 17 CPC were not complied with, therefore, ex parte proceedings were wrongly ordered against her and rightly accepted the application(Annexure P-8), by way of impugned order dated 30.05.2011, the operative part of which is, as under:- “From the perusal of the judicial file of HMA No.174 of 2007, it is evident that notice was issued to applicant Neelam Rani by the Court for 30.1.2008 to appear in the above said divorce petition which was filed against her by her husband Rajan Kumar. On 30.1.2008, applicant Neelam Rani was proceeded against ex parte on the ground that she refused to accept the service and then the case was fixed for ex parte evidence of Rajan Kumar and finally ex parte decree of divorce was passed in favour of Rajan Kumar on 7.4.2008. From the perusal of the summon which was issued for 30.1.2008 to Neelam Rani, it is evident that the concerned process server made report of refusal on the back of said summon. From the perusal of report of process Civil Revision No.4835 of 2011 3 server whose certified copy is Ex.RW2/B, it is evident that the concerned process server made simple report of refusal on the part of Neelam Rani, without getting her identified from any independent person like her neighbour or any other respectable of her mohalla. In case of refusal to accept the summons, the process server should have affixed a copy of summons on the outer door or some other conspicuous part of the house in which applicant was ordinarily residing, but in the case in hand the process server failed to do so as is required u/o 5 rule 17 CPC. In these circumstances, the aforesaid report of refusal made by process server, was illegal and cannot be sustained in the eyes of law. It is evident that applicant Neelam Rani was never personally served in this case. Thus, there are sufficient grounds to set aside the ex parte decree dated 7.4.2008, the reason being applicant was not served personally or in accordance with law in aforesaid divorce petition and, thus, she was not in knowledge about the pendency of the said divorce petition. And when she came to know about the passing of ex parte decree, she immediately approached the court concerned for setting aside of said decree, without any delay within 30 days from the date of knowledge.” 9. Learned counsel for the petitioner did not point out any material, much less cogent, to contend that how and in what manner, any interference is warranted in the impugned order of the trial Judge. 10. Meaning thereby, the trial Judge has recorded the valid grounds, in accepting the application under Order 9 Rule 13 CPC, filed by the respondent wife. Such order, containing the valid reasons, cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as contemplated under Article 227 of the Constitution of India, unless the same is perverse and without jurisdiction. As, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner, therefore, the impugned order is hereby maintained in the obtaining circumstances of the case. 11. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition is hereby dismissed as such. August 11, 2011 (MEHINDER SINGH SULLAR) seema JUDGE Civil Revision No.4835 of 2011 4 C.M.No.19347-CII of 2011 in Civil Revision No.4835 of 2011 Present: Mr.Suveer Sheokand, Advocate, for the petitioner. **** Application is allowed as prayed for. August 11, 2011 (MEHINDER SINGH SULLAR) seema JUDGE