Court: Punjab and Haryana High Court
Bench: JUSTICE Mehinder Singh Sullar
Rakesh Kumar Vs. Shashi Bala On 19 February 2014
Law Point:
Civil Procedure Code, 1908 — Order 9 Rule 13 — Hindu Marriage Act, 1955 — Section 13 — Setting aside ex parte decree of divorce — Production of entire evidence of petitioner-husband is essential, to decide matrimonial dispute between parties and is legal requirement of fair trial — If adequate opportunities not granted to petitioner, then it will inculcate and perpetuate injustice to his case — No prejudice was going to be caused to respondent-wife, particularly when she could well be compensated with adequate costs in this connection — Taking into consideration matrimonial dispute between parties, Trial Court to have granted one more opportunity to petitioner to produce his evidence — Impugned order set aside.
JUDGEMENT
1. Tersely, the facts and material, culminating in the commencement, relevant for disposal of the instant petition and emanating from the record are that, initially petitioner-husband Rakesh Kumar son of Tirath Ram has instituted a divorce-petition against his wife respondent-Shashi Bala daughter of Dharam Pal, for dissolution of their marriage by way of a decree of divorce under Section 13 of the Hindu Marriage Act, 1955 (hereinafter to be referred as “the H.M. Act”). As, nobody appeared on behalf of the respondent-wife, therefore, ex parte decree of divorce was granted in favour of the petitioner-husband, by the matrimonial Court, by means of judgment and decree dated 16.4.2011.
2. Thereafter, the respondent-wife moved an application on 23.2.2013 for setting aside ex parte judgment and decree under Order 9 Rule 13, CPC. The petitioner-husband refuted the prayer of the respondent-wife, filed the reply and prayed for dismissal of the application. Ultimately, the evidence of the petitioner was closed by the Trial Court, by virtue of impugned order dated 1.2.2014 (Annexure P-1).
3. Aggrieved thereby, the petitioner has preferred the present petition, invoking the provisions of Article 227 of the Constitution of India.
4. At the very outset, in exercise of power conferred under Article 227 of the Constitution of India, I hereby exempt the issuance of notice to the respondent-wife, in order to save her from the expenditure of Counsel fees, litigation expenses in this Court and the delay in disposal of the petition, particularly when she can well be compensated with adequate costs in this context. Be that as it may, however, in case, the respondent-wife is aggrieved by the order, in any manner, she would be at liberty to file a petition to recall this order without accepting the costs.
5. After hearing the learned Counsel for the petitioner, going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, the instant petition deserves to be partly accepted in this context.
6. As is evident from the record that, the petitioner-husband has filed a divorce-petition against the respondent-wife, in the manner described hereinabove. Since, nobody appeared on behalf of the respondent, so, ex parte decree of divorce was granted in favour of the petitioner-husband vide judgment and decree dated 16.4.2011. Then, the respondent-wife filed an application for setting aside the ex parte decree under Order 9 Rule 13, CPC. The Trial Court closed the evidence by way of impugned order dated 1.2.2014 (Annexure P-1) by observing therein that sufficient opportunities were granted, but the petitioner-husband has failed to conclude his evidence.
7. Ex facie, it may be true that, sufficient opportunities were granted to the petitioner to conclude his evidence, but that ipso facto is not a ground, much less cogent, to negate the plea of the petitioner, to produce his evidence. The case remained pending for evidence of the respondent-wife and ultimately, it was adjourned to 25.1.2014 for evidence of the petitioner-husband for the first time, by the Trial Court vide order dated 18.1.2014. The evidence of the petitioner was closed by the Trial Court by way of order dated 1.2.2014. Thereafter, the case was adjourned to 11.2.2014 to summon the original file by means of interim order dated 4.2.2014. Here to me, the Trial Court appears to have committed a legal mistake in this regard. Once, the Trial Court adjourned the case to summon the original file, then it should have granted one more opportunity to the petitioner. To me, the production of entire evidence by the petitioner is essential, to decide the matrimonial dispute between the parties and is the legal requirement of fair trial. If adequate opportunities are not granted to the petitioner, then it will inculcate and perpetuate injustice to his case. Moreover, no prejudice was going to be caused to the respondent-wife, particularly when, she could well be compensated with adequate costs in this relevant connection. Taking into consideration the nature of matrimonial dispute between the parties, the Trial Court ought to have granted one more opportunity to the petitioner, to produce his evidence.
8. In the light of aforesaid reasons, the instant petition is partly accepted. Consequently, the impugned order dated 1.2.2014 (Annexure P-1) is hereby set aside. The Trial Court is directed to provide one more effective opportunity to the petitioner, to produce his entire evidence. However, this would be subject to the payment of Rs. 5,000 (Rupees five thousand) as costs, to be paid by petitioner-husband to the respondent-wife personally. At the same time, the payment of costs would be a condition precedent to further defend the application for setting aside the ex parte decree under Order 9 Rule 13, CPC.
Needless to mention that the instant order has been rendered only in the peculiar facts and special circumstances of this case and would not be relevant precedent in any other case.
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