1.This First Appeal is preferred against the judgement and decree passed by Additional District Judge, Ballia in Original Suit No. 315 of 2001 (Santosh Kumar Vs. Sunita Devi) decided on 06.09.2002 decreeing the suit of the petitioner for the relief of divorce.
2.The brief facts which give rise to this appeal are that original suit no. 315 of 2001 was filed by respondent-petitioner (hereinafter called the respondent) against Savita Devi opposite party-appellant (hereinafter called the appellant) for the relief of declaring the marriage between the parties as null and void. This petition was based on the allegation that the respondent belonged to District Ballia and is from a very reputed family having agricultural land, other business establishment, shops etc. The respondent has graduated from Allahabad University in May, 2000. The appellant's father came to the house of the respondent for the purpose of settling marriage of the appellant with the respondent and the marriage between the parties settled and on 24.02.2001, the marriage was solemnised with all Hindu Rites and the appellant came to the house of the respondent on 25.02.2001. Soon after the marriage, the behaviour of the appellant was unnatural and she refused to accept the food given to her. Even after persuasion, the food was not taken by the appellant. The family members of the respondents became doubtful to see the unnatural behaviour of the appellant and they also narrated this fact to the respondent and his father, but he did not pay any attention to the same. On 28.02.2001, the reception was organized in honour of the newly wedded wife but on 28.02.2001, the behaviour of the bride was so unnatural and she started talking irrelevant and also acted just like an unsound person and on 01.03.2001, the mental equilibrium of the appellant was so erratic that she threatened to commit suicide. The appellant was taken to the doctor and some medicine was also given to her. The matter was complained to the father of the appellant that they have committed a fraud upon the respondents family and his daughter was mentally unfit, even then, she was married to the respondent. Then, the appellant was taken back to her parents' house and there she was shown to the Banaras Hindu University Medical College and at the time of wedding, the appellant was not in a stable condition of his mind and due to the said erratic and mental disorder, there was no successful marital relationship between the parties and after one month, the parents of the appellant informed the petitioner's family that now the girl is completely cured and on that assurance, the appellant was taken back to her in laws house. Again she started behaving in an unnatural manner and then again she was sent back to her parents house and the respondent was compelled to file this petition for divorce.
3.The notices were issued to the appellant and the appellant appeared through her counsel and moved an application 13A challenging the maintainability of the petition under section 14 of the Hindu Marriage Act and also moved an application for awarding interim maintenance and for grant of expenses for litigation.
4.Then the matter was referred to the permanent Lok Adalat for settlement of dispute along with the other applications on 23.05.2002. The parties absented themselves from appearing before the permanent Lok Adalat and the matter was sent back to the concerned court with the direction that the file shall be produced on 25.07.2002.
5.An application was moved on 31.05.2002 by the respondent for fixing an early date and the court fixed 06.07.2002 in stead of 25.07.2002 and also directed that the appellant also be informed.
6.On 06.07.2002, since the appellant was not present, an application for amendment of the petition was heard and it was allowed ex parte.
7.On 27.07.2002, when the appellant was not present, the case proceeded ex parte.
8.An application to set aside the exparte order along with the affidavit was moved by the appellant on 03.08.2002 which was rejected and the court decreed the suit ex parte vide its judgement dated 06.09.2002. During the pendency of the application for setting aside ex parte hearing order, appellant also filed her counter statement and an affidavit.
9.Feeling aggrieved, the appellant preferred this appeal.
10.Notices were issued. The respondent put in appearance and also filed counter affidavit and the appellant filed rejoinder affidavit and after exchange of the affidavits, lower court record was requisitioned and after preparation of the paper book, finally the appeal was posted for final hearing on the date fixed.
11.Heard learned counsel for the parties.
12.Learned counsel for the appellant Sri Vishal Tandon submitted:-
That the judgement and decree passed by the Additional District Judge is an ex parte decree dissolving the marriage between the parties and declaring it as null and void, which is not tenable in the eye of law;
That the learned court below has not considered the pleading raised in the written statement filed by the defendant and completely failed to appreciate the legal plea taken by her in her written statement;
That in her statement, the appellant has clearly stated that the suit for the divorce has been filed with mala fide intention and all the allegations levelled in petition are baseless and concocted and the allegations of the petitioner that the appellant is of unsound mind is totally false and baseless;
That the appellant in fact is a lady of sound mind and is an educated lady and at the time of marriage, she was studying in B.A. Part-II and there is no question of any mental instability;
That the ground taken by the petitioner for obtaining divorce on the basis of mental instability was not at all proved by the petitioner by any cogent evidence;
That there was no cause of action arose to file the divorce petition and the petition was barred by provisions of section 14 of the Hindu Marriage Act and application to this effect was moved by the appellant. The trial court erred in deciding the suit ex parte without first deciding the application filed by the appellant;
That the order of proceeding ex parte was also illegal and the court has wrongly rejected the application moved by the appellant for setting aside the ex parte order on totally illegal considerations;
That the appellant has given cogent reason for her absence on the date fixed but the court has wrongly decided her application for setting aside the ex parte decree;
That even after proceeding ex parte, the Court has failed to consider the written statement and the affidavit filed by the appellant and decided the suit ex parte in an arbitrary manner;
That even if the court is deciding a case ex parte, the court may given reasons and also must satisfy the description of judgement. The present ex parte judgement is not supported by any reasons;
That the case is squarely covered by the judgement reported in AIR 1995 Allahabad 259 in the matter of Commissioner of Income Tax appellant Vs. Surendra Singh Pahwa and others and also A.I.R.2003 Supreme Court 2508 Ramesh Chand Ardawatia Vs. Anil Panjwani and lastly;
That the judgement passed by the court below is arbitrary, against the law and against the facts and deserves to be set aside and the appeal be allowed.
13.Counsel for the respondent submitted:-
That there is no illegality in the order passed by the court below;
That during the proceeding of the Suit, the appellant became absent and the court has left with no option but to proceed ex parte and after filing evidence by the respondent and his father, there was sufficient material on record to prove the case of the respondent and the court has rightly decreed the Suit;
That the written statement and the affidavit was filed after the case proceeded ex parte and the application moved by the appellant for setting aside ex parte hearing order was set aside. The court has rightly not taken into consideration the written statement and the affidavit filed by the appellant;
That the application for setting aside the ex parte order was moved after filing of the evidence by the respondent and there was nothing left for the Court to consider but only to pass judgement and the Court has thus rightly rejected the application of the appellant for setting aside the ex parte order;
That while refusing to set aside the ex parte order, the Court has rightly relied upon the judgement of the Apex Court reported in AIR 1964 Supreme Court 993 Arjun Vs. Mahendra Kumar, wherein it is clearly provided that when the proceeding in an ex parte suit is completed, the provisions of order 9 Rule 7 C.P.C. will not apply;
That the marriage between the parties was an outcome of fraud played by the father of the appellant as the appellant was not mentally fit and concealing this fact, she was forcibly married with the respondent. The counsel also referred to the photostat documents of treatment of the appellant;
That the appellant has not yet moved any application for setting aside the ex parte decree instead she has filed appeal before this Court and the appellate court is not empowered to look into the grounds on which application for setting aside the ex parte hearing was rejected and lastly;
That the appeal has no merits and deserves to be dismissed.
14.I am unable to accept the contention raised by the learned counsel for the respondent. First of all the person against whom an ex parte decree has been passed for default of appearance at the time of hearing has following courses/remedies open to him.
(i) He can file an appeal from ex parte order decree under section 96(2) C.P.C.
(ii) He may apply for review of decree under order 47 Rule 1 C.P.C.; or
(iii)He may apply under order IX Rule 13 for an order for setting aside the ex pare decree.
These remedies are concurrent in nature. It is not necessary for a person to first apply under order IX Rule 13 for setting aside ex parte decree. He has both options. He may file either appeal or review or an application for setting aside ex parte decree.
15.Though it is true that when a person against whom ex parte decree is passed does not apply under order 9 Rule 13 C.P.C. and chooses to file an appeal from decree, two questions may arose (1) whether the appellate court can consider the reason for defendant's non appearance at the hearing and determine whether the lower court was right in proceeding ex parte or (2) whether the only question which the appellate court can consider is as to whether the evidence on record is sufficient to support the ex parte decree. Whether the appellate court can see whether the decree can be sustained on merits.
16.In my view, it is clear that it is open to the defendant who has filed an appeal against ex parte decree under section 96 (2) C.P.C. to show from record as it stands that there is an order proceeding ex parte against him. Any error, defect or irregularity in doing so, the ex parte decree can be set aside for re-trial. However the appellate court can not consider or the defendant can not be allowed to show that he was prevented by sufficient cause from appearing at the hearing.
17.Now from the records court has to see whether the order to proceed ex parte was legal or without any error or defect.
18.From the order sheet it transpires that an application 13A was moved by the appellant challenging the maintainability of the petition as barred by section 14 of the Hindu Marriage Act and the court vide order dated 15.05.2002 referred the case to the permanent Lok Adalat fixing the date 23.05.2002.
19.On that date, before the permanent Lok Adalat no party put in appearance and the permanent Lok Adalat directed the file to be put up before the concerned court on 25.07.2002. However, an application on 31.05.2002 was moved by the respondent to fix some early date and the court fixed 06.07.2012 and also directed to inform the appellant. From the ordersheet it also transpired that no such information was sent to the appellant or her counsel. On 06.07.2012, the ordersheet shows that the appellant was not present. An application 19 C 2 for amendment of the petition was heard ex parte by which the petitioner has completely over hauled his petition. The order of 06.07.2012 also shows that there is overwriting on the date. Again the Court directed the respondent to carry out the amendment within a week. On 10.07.2002, the Court fixed a date. Either it was 27.07.2002 or 27.08.2002. It is not clear because there is overwriting in the order sheet on the date. From the bare naked eyes, the date appears to be 27.08.2002 and it has been interpolated with 27.07.2002. On 27.07.2002, when the case was presented before the Court, the Court in the absence of the appellant proceeded ex parte and fixed 03.08.2002 for ex parte hearing. There is again an interpolation in the date 03.08.2002. Thereafter the petitioner filed his affidavit. Again on 30.07.2002, another affidavit was filed and the application was moved on 01.08.2002 by the respondent to hear the arguments on 01.08.2002 in stead of 03.08.2002. On 03.08.2002, the appellant was present and moved an application along with affidavit for setting aside the ex parte proceeding order. On 03.09.2002, the appellant filed a written statement and an affidavit and the court also heard argument on her application for setting aside the ex parte proceeding order. On 06.09.2002, the Court rejected the application of the appellant for setting aside the ex parte order and simultaneously pronounced the ex parte judgement decreeing the suit of the petitioner. All the procedure adopted by the Court appears to be erroneous. First of all after expediting the petition and fixing an early date, no information was sent to the appellant. Secondly, on 25.07.2002, when the case proceeded ex parte, there appears to be some interpolation in the dates and possibility can not be ruled out that the office of the Court in connivance of the respondent made certain interpolation in the order sheet by interpolating the dates fixed by the Court. Thirdly, while deciding the application for setting aside the ex parte hearing, the Court has failed to consider that when the application for setting aside ex parte hearing was moved by the appellant, the proceedings of the ex parte hearing were not completed. The arguments were not heard as apparent from the ordersheet. The arguments were heard on 03.09.2002. Even on 03.09.2002, the order sheet clearly shows that the arguments were heard on the application moved by the appellant for setting aside the ex parte hearing. No arguments were heard on the petition on merit. Even if the application for setting aside ex parte hearing was rejected by the Court, the appellant has right to argue the case, but no opportunity was given to the appellant to submit her submissions. A bare perusal of the ex parte order dated 06.09.2002 by which the Court has refused to set aside the ex parte order, clearly shows that the Court has refused to set aside the order only on the ground that the proceedings in the suit has already completed but that was not the case. The court proceedings were not completed. The arguments were left. Thus, there was an error apparent in the order and the appellate court can rightly consider whether the order passed by the trial court refusing to set aside the ex parte hearing order was justified or not and from the ordersheet and the manner in which the case was conducted, it is clear that the office of the court did not act bona fidely. There is a smell of mala fide on the part of the office of the Court. There is clear interpolation in various dates. The appellant was not informed regarding the early fixing of the date. The court while rejecting the application fails to consider this aspect. Secondly, the order rejecting the application was also not legal. The court has failed to consider that the appellant belong to different State. She is a resident of Bihar and no information was sent to her at her parental house or to her counsel for expediting the petition.
20.Thus in view of the above, it is clear that the order rejecting the application for setting aside ex parte hearing was erroneous, illegal and unjustified.
21. Now so far as merit of the case is concerned, the contention raised by the counsel for the appellant has some force that even if the defendant absented himself on the date of hearing and the suit proceeded ex parte did not by itself entitle the plaintiff to get a decree in his favour. The court is under an obligation to apply its mind to whatever ex parte evidence or affidavit filed under order 19 of the Code is on record of the case and application of mind must be writ large on the face of record. This is possible only if the court directs itself to whatever material is on record of the case, analysis the same and then comes to any conclusion on the basis of evidentiary value of the ex parte evidence or affidavit brought on record by the plaintiff. The trial court ought to have on consideration of pleadings, formulated points for determination. The court has to take in mind that this is a divorce petition and divorce can be granted on certain grounds enumerated in section 13 of the Hindu Marriage Act and the Court has to give a categorical finding that the plaintiff has placed sufficient evidence and the plaintiff has proved any such ground mentioned in section 13 of the Hindu Marriage Act.
22.A bare reading of the impugned judgement shows that the Court after narrating the facts pleaded by the petitioner mentioned in a cursory way that the defendant is absent and further stated that in the absence of any material on record, to disprove the plaintiff case. The court decreed the same. This is totally beyond the description of judgement. The Court has to see whether by any evidence available on record, the plaintiff has been able to prove his case or not. Even in ex parte proceedings, the plaintiff has to prove the ground mentioned in Section 13 of the Hindu Marrage Act by cogent evidence. Even no doctor was produced to prove the treatment record of the appellant. The contention of the counsel for the appellants is squarely covered by the case law AIR 1995 Allahabad 259. The impugned judgement can not be sustained. Even an ex parte judgement should satisfy the description of the judgement as laid down in Order 20 Rule 4. The judgement for its sustenance must contain not only the findings on the points but must also contains what evidence consists of and how it does prove the plaintiff's case. A judgement unsupported by reasons is no judgement in the eye of law. It is well settled that reasons are the links between the material on record and the conclusion arrived at by the Court. Mere fact that the defendant absented himself on the date of hearing and the suit proceeded ex parte did not by itself entitle the plaintiff to get a decree in his favour. The court was under an obligation to apply its mind to whatever ex parte evidence or affidavit filed under order 19 of the Code is on the record of the case and the application of mind must be writ large on the face of record. This is possible only if the court directs itself to whatever material is on record of the case, analysis the same and then comes to any conclusion on the basis of evidentiary value of the ex parte evidence or affidavit brought on record by the plaintiff-appellant on 03.09.2002 and then the court was also under obligation to consider the case taken up by the appellant in her written statement and also the affidavit filed by her. The written statement and the affidavit can not be wiped out merely on the ground that case is proceeded ex parte.
23.Lastly it is strange that an application was moved by the appellant challenging the maintainability of the petition as the petition is barred by section 14 of the Hindu Marriage Act. Section 14 of the Hindu Marriage Act clearly provides that :-
14. No petition for divorce to be presented within one year of marriage.-
(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, 1[unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage:
Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented 2[before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 3[expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after the 4[expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the 5[expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the 6[said one year].
24.No petition for divorce can be presented within one year of marriage. Admittedly the marriage between the parties was solemnized on 24.02.2001 and the petition was filed on 29.10.2001 within a year. The court sent this petition for disposal before the permanent Lok Adalat and when the record was returned by the permanent Lok Adalat, the court proceeded ex parte without considering the maintainability of the petition. Thus in my opinion, the Court has also committed illegality in not considering this application even while passing the ex parte decree. The Court has not given any finding on the maintainability of this petition within a year. Section 14 further provided an exception that the Court may upon an application made to it in accordance with such rules as may be made by the High Court in that behalf allow a petition [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner. Thus in the present case court has also not taken the case as an exceptional and has totally ignored the provisions of section 14 of the Hindu Marriage Act.
25.Considering all the submissions as above, I am of the opinion, that the impugned judgement is not sustainable in the eye of law and is liable to be set aside. Even the order of the Court refusing to set aside the ex parte hearing order is illegal and erroneous as is apparent on the face of it and the Court was not justified in rejecting the application to set aside the ex parte hearing order and the court has no option but to remand the case to the court below for fresh trial. The appeal is liable to be allowed.
26.Accordingly the appeal is allowed. The judgement and decree dated 06.09.2002 passed by Additional District Judge, Ballia in Suit No. 315 of 2001 (Santosh Kumar Vs. Savita Devi) is set aside and the case is remanded to the lower court for trial afresh.
27.Before parting with this case, I am constrained to observe that the manner in which the court acted is highly regretful. From the records, it shows that the court has no control over its office. It is the duty of the officer of the Court to maintain a proper control over his offices. In the present case, there are various interpolation in the order sheet, which raises doubt on the integrity of the officials of the office of the Court and also of the officer of the court. It also appears from the record that this case has been decided in a hasty manner and possibility can not be ruled out that connivance of the officials of the office of the Court with the petitioner. Further as earlier pointed by me the manner in which the judgement was written by the officer is not a judgement in the eye of law and the writing of such type of judgement is deprecated.
Order Date :- 18 .10.2012 yachna