WATI v. RATTAN SINGH

Judgment

#1. By way of present appeal, challenge has been laid to the order By way of present appeal, challenge has been laid to the order By way of present appeal, challenge has been laid to the order By way of present appeal, challenge has been laid to the order dated 11.01.2010 passed by the learned Additional District Judge, Jhajjar, 11.01.2010 passed by the learned Additional District Judge, Jhajjar, passed by the learned Additional District Judge, Jhajjar, Order IX whereby the application preferred by the appellant-wife under Order IX whereby the application preferred by the appellant whereby the application preferred by the appellant , seeking setting aside of the Rule 13 of the Code of Civil Procedure, 1908, seeking setting aside of the , seeking setting aside of the Rule 13 of the Code of Civil Procedure, 1908 ex parte judgment and decree dated 14.06.2002 ex parte judgment and decree dated d under Section 13 14.06.2002 passed under Section 13 of the Hindu Marriage Act, 1955 (for short, "the HMA"), was dismissed. of the Hindu Marriage Act, 1955 (for short, "the HMA"), was dismissed. of the Hindu Marriage Act, 1955 (for short, "the HMA"), was dismissed.

#2. , Briefly stating, , Briefly stating the marriage between the marriage between the marriage between the parties was the parties was the parties was solemnized according to Hindu rites and ceremonies and three children solemnized according to Hindu rites and ceremonies and three children solemnized according to Hindu rites and ceremonies and three children solemnized according to Hindu rites and ceremonies and three children were born out of the wedlock. The respondent were born out of the wedlock. The resp husband instituted a petition ondent-husband instituted a petition under Section 13 of the HMA seeking dissolution of marriage. Since the under Section 13 of the HMA seeking dissolution of marriage. Since the under Section 13 of the HMA seeking dissolution of marriage. Since the under Section 13 of the HMA seeking dissolution of marriage. Since the appellant failed to appear despite service, she was proceeded against ex appellant failed to appear despite service, she was proceeded against ex appellant failed to appear despite service, she was proceeded against ex appellant failed to appear despite service, she was proceeded against ex parte on 18.04.2002 and an ex parte decree of divorce came to be passed parte on 18.04.2002 and an ex parte decree of divorce came to be passed parte on 18.04.2002 and an ex parte decree of divorce came to be passed parte on 18.04.2002 and an ex parte decree of divorce came to be passed on 14.06.2002. against her on 14.06.2002. 1 1 FAO-345-2011 (O&M) 2011 (O&M)

#3. The appellant thereafter filed an application under Order IX The appellant thereafter filed an application under Order IX The appellant thereafter filed an application under Order IX The appellant thereafter filed an application under Order IX never served with the Rule 13 CPC on 20.08.2007, alleging that she was never served with the Rule 13 CPC on 20.08.2007, alleging that she Rule 13 CPC on 20.08.2007, alleging that she summons of the divorce petition. It was pleaded that the respondent had summons of the divorce petition. It was pleaded that the respondent had summons of the divorce petition. It was pleaded that the respondent had summons of the divorce petition. It was pleaded that the respondent had report by obtaining the signatures of one Suraj manipulated the service report by obtaining the signatures of one Suraj report by obtaining the signatures of one Suraj manipulated the service serving, Bhan, a water carrier in the school where the appellant-wife was serving, Bhan, a water carrier in the school where the Bhan, a water carrier in the school where the and had fraudulently secured the ex parte decree. It was further pleaded and had fraudulently secured the ex parte decree. It was further pleaded and had fraudulently secured the ex parte decree. It was further pleaded and had fraudulently secured the ex parte decree. It was further pleaded ed to reside that even after the decree of divorce, the respondent continued to reside that even after the decree of divorce, the respondent continu that even after the decree of divorce, the respondent continu with her and she came to know about the decree only in July, 2007, when with her and she came to know about the decree only in July, 2007, when with her and she came to know about the decree only in July, 2007, when with her and she came to know about the decree only in July, 2007, when one of her colleagues informed her that the respondent had nominated one of her colleagues informed her that the respondent had nominated one of her colleagues informed her that the respondent had nominated one of her colleagues informed her that the respondent had nominated another lady in his pension records. another lady in his pension records.

#4. he respondent contested the application and Upon notice, the respondent contested the application and he respondent contested the application and Upon notice, t ied all allegations of fraud. It was pleaded that the appellant had denied all allegations of fraud. It was pleaded that the appellant had ied all allegations of fraud. It was pleaded that the appellant had ied all allegations of fraud. It was pleaded that the appellant had deliberately refused to accept the summons . It was further contended that y refused to accept the summons. It was further contended that . It was further contended that the application filed after more than five years was hopelessly barred by the application filed after more than five years was hopelessly barred by the application filed after more than five years was hopelessly barred by the application filed after more than five years was hopelessly barred by limitation and no sufficient cause was e limitation and no sufficient cause - established either for non- The appearance before the matrimonial Court or for condonation of delay. The appearance before the matrimonial Court or for condonation of delay. appearance before the matrimonial Court or for condonation of delay. learned Additional District Judge, upon appreciation of the evidence led by learned Additional District Judge, upon appreciation of the evidence led by learned Additional District Judge, upon appreciation of the evidence led by learned Additional District Judge, upon appreciation of the evidence led by

the parties, dismissed the application, giving rise to the present appeal. the parties, dismissed the application, giving rise to the present appeal. the parties, dismissed the application, giving rise to the present appeal.

#5. arned counsel appearing on behalf of Learned counsel appearing on behalf of arned counsel appearing on behalf of arned counsel appearing on behalf of the appellant the appellant the appellant the appellant contended that the learned Court below failed to appreciate the evidence in contended that the learned Court below failed to appreciate the evidence in contended that the learned Court below failed to appreciate the evidence in contended that the learned Court below failed to appreciate the evidence in its correct perspective. It is argued that the appellant its correct perspective. It never served with argued that the appellant was never served with s the summons and the entire process of service stood vitiated by fraud. It is the summons and the entire process of service stoo the summons and the entire process of service stoo further submitted that the testimony of AW-1 Suraj Bhan, AW further submitted that the testimony of AW 2 (appellant) 1 Suraj Bhan, AW-2 (appellant) ever tendered to 3 sufficiently established that no summons were ever tendered to 3 sufficiently established that no summons and AW-3 sufficiently established that no summons . Learned counsel further argues the appellant. Learned counsel further argues that the Court below misread that the Court below misread the statement of AW 2 by wrongly concluding that the appellant had ement of AW-2 by wrongly concluding that the appellant had 2 by wrongly concluding that the appellant had 2 2 FAO-345-2011 (O&M) 2011 (O&M) knowledge of the ex-parte decree passed against her knowledge of the in the year 2002 passed against her in the year 2002 itself, whereas in fact, her statement merely referred to the year in which in fact, her statement merely referred to the year in which her statement merely referred to the year in which the decree was passed. It i passed. It is, thus, submitted that the application having s, thus, submitted that the application having ly, 2007, was within been filed immediately after acquiring knowledge in July, 2007, was within been filed immediately after acquiring knowledge in Ju been filed immediately after acquiring knowledge in Ju limitation and therefore, liable to be allowed. limitation and therefore, liable to be allowed.

#6. Per contra, learned counsel appearing on behalf of the Per contra, learned counsel appearing on behalf of the Per contra, learned counsel appearing on behalf of the Per contra, learned counsel appearing on behalf of the that the application respondent supports the impugned order and submits that the application respondent supports the impugned order and submits respondent supports the impugned order and submits itself was hopelessly barred by limitation, having been instituted after more itself was hopelessly barred by limitation, having been instituted after more itself was hopelessly barred by limitation, having been instituted after more itself was hopelessly barred by limitation, having been instituted after more parte decree. It is argued that the than five years from the passing of the ex-parte decree. It is argued that the parte decree. It is argued that the than five years from the passing of the ex appellant failed to substantiate her plea of acquiring knowledge in July, appellant failed to substantiate her plea of acquiring knowledge in July, appellant failed to substantiate her plea of acquiring knowledge in July, appellant failed to substantiate her plea of acquiring knowledge in July, by producing any cogent documentary evidence regarding the alleged 2007 by producing any cogent documentary evidence regarding the alleged by producing any cogent documentary evidence regarding the alleged by producing any cogent documentary evidence regarding the alleged change of nomination. It is further submitted that the appellant failed to change of nomination. It is further submitted that the appellant failed to change of nomination. It is further submitted that the appellant failed to change of nomination. It is further submitted that the appellant failed to examine the process server, who had effected service, and the testimony examine the process server, who had effected service, and the testimony examine the process server, who had effected service, and the testimony examine the process server, who had effected service, and the testimony of AW-1 Suraj Bhan also er case, as he never disputed 1 Suraj Bhan also did not advance her case, as he never disputed er case, as he never disputed his signatures on the summons. Learned counsel further contends that the his signatures on the summons. Learned counsel further contends that the his signatures on the summons. Learned counsel further contends that the his signatures on the summons. Learned counsel further contends that the Section 28 decree dated 14.06.2002 was independently appealable under Section 28 decree dated 14.06.2002 was independently appealable under decree dated 14.06.2002 was independently appealable under , and once the statutory remedy was not of the Hindu Marriage Act, 1955, and once the statutory remedy was not , and once the statutory remedy was not of the Hindu Marriage Act, 1955 in the prescribed period, the appellant could not circumvent the availed within the prescribed period, the appellant could not circumvent the in the prescribed period, the appellant could not circumvent the in the prescribed period, the appellant could not circumvent the statutory scheme by filing a belated application under Order IX Rule 13 statutory scheme by filing a belated application under Order IX Rule 13 statutory scheme by filing a belated application under Order IX Rule 13 statutory scheme by filing a belated application under Order IX Rule 13 CPC.

#7. I have heard learned counsel for the parties and perused the I have heard learned counsel for the parties and perused the I have heard learned counsel for the parties and perused the I have heard learned counsel for the parties and perused the paper-book.

#8. s case rests upon the allegation The foundation of the appellant's case rests upon the allegation s case rests upon the allegation The foundation of the appellant' that the respondent procured an ex parte decree by practising fraud in the that the respondent procured an ex parte decree by practising fraud in the that the respondent procured an ex parte decree by practising fraud in the that the respondent procured an ex parte decree by practising fraud in the matter of service . However, mere allegation of fraud of summons upon her. However, mere allegation of fraud . However, mere allegation of fraud is not sufficient. Fraud is required to be pleaded with specificity and proved is not sufficient. Fraud is required to be pleaded with specificity and pro is not sufficient. Fraud is required to be pleaded with specificity and pro 3 3 FAO-345-2011 (O&M) 2011 (O&M) The record reveals that although the by cogent and convincing evidence. The record reveals that although the The record reveals that although the by cogent and convincing evidence. appellant disputed the service report, she did not examine the process appellant disputed the service report, she did not examine the process appellant disputed the service report, she did not examine the process appellant disputed the service report, she did not examine the process server (Rameshwar), who had allegedly effected service upon her. The server (Rameshwar), who had allegedly effected service upon her. The server (Rameshwar), who had allegedly effected service upon her. The server (Rameshwar), who had allegedly effected service upon her. The service was thus consciously best evidence available to challenge the service was thus consciously service was thus consciously best evidence available to challenge the 1 Suraj Bhan. The Equally significant is the testimony of AW-1 Suraj Bhan. The Equally significant is the testimony of AW withheld. Equally significant is the testimony of AW appellant herself examined him in support of her case. However, he never appellant herself examined him in support of her case. However, he never appellant herself examined him in support of her case. However, he never appellant herself examined him in support of her case. However, he never 1), which recorded denied his signatures appearing on the summons (Ex.A-1), which recorded denied his signatures appearing on the summons (Ex.A denied his signatures appearing on the summons (Ex.A the part of the appellant. Once the witness admitted his the part of the appellant. Once the witness refusal on the part of the appellant. Once the witness signatures on the document, the burden heavily shifts upon the appellant to signatures on the document, the burden heavily shifts upon the appellant to signatures on the document, the burden heavily shifts upon the appellant to signatures on the document, the burden heavily shifts upon the appellant to establish that the endorsement itself was fabricated or procured by fraud. establish that the endorsement itself was fabricated or procured by fraud. establish that the endorsement itself was fabricated or procured by fraud. establish that the endorsement itself was fabricated or procured by fraud. No such evidence was brought on record. In thes No such evidence e circumstances, the In these circumstances, the learned Court below committed no error in holding that the appellant failed learned Court below committed no error in holding that the appellant failed learned Court below committed no error in holding that the appellant failed learned Court below committed no error in holding that the appellant failed to rebut the presumption attached to the official acts performed during the to rebut the presumption attached to the official acts performed during the to rebut the presumption attached to the official acts performed during the to rebut the presumption attached to the official acts performed during the course of judicial proceedings. The Hon'ble Supreme Court in course of judicial proceedings. A.V. The Hon'ble Supreme Court in A.V. Papayya Sastry v. Government of Andhra Pradesh Papayya Sastry v.