Shakuntla Devi vs. Kushla Devi

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

FAO (HMA) No. 128 of 2015 Reserved on: 17.10.2023 Date of Decision: 10th November, 2023

Shakuntla Devi & another
		Appellants
Versus
Smt. Kushla Devi
		Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.	ı Kai	nthla, Judge.
Whether approved for reporting? Yes
For the Appellants	:	Mr.<br>C.N.<br>Singh<br>and<br>Mr.<br>Arush<br>Matlotia, Advocates.
For the Respondent	:	Mr. V.S. Rathore, Advocate.

Rakesh Kainthla,Judge.

The present appeal is directed against the order dated 30.12.2014, passed by learned District Judge, Kangra at Dharamshala, District Kangra, H.P., vide which, an application under Order 9 Rule 13 of CPC filed by the respondent (applicant before the learned Trial Court) was allowed and the ex parte decree of divorce passed against her in HMP No. 54-P/III/2004, titled "Dhani Chand Vs. Kushla Devi" was set aside.(Parties shall

Whether reporters of the local papers may be allowed to see the judgment? Yes

hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that Dhani Chand, husband of the applicant filed a petition for dissolution of marriage, which was registered as HMP No. 54-P/III/2004 titled as "Dhani Chand vs. Kushla Devi. The notices were issued to the present applicant. The applicant could not be served for want of the correct address. The husband of the applicant filed an application under Order 5 Rule 20(IA) of CPC for service of the applicant through publication, which was allowed on 01.03.2007. The applicant was ordered to be summoned by way of publication. The notice was duly published in Amar Ujala on 24.03. 2007. However, none appeared on 02.04.2007 before the learned Trial Court. Hence, the learned Trial Court proceeded against the applicant ex parte and allowed the divorce petition under Section 13(1)(ia)(ib) of the Hindu Marriage Act. Dhani Chand died and the applicant applied for a grant of family pension. She was informed that she was not entitled to a family pension as her husband had divorced her. She filed an application under Order 9 Rule 13 of CPC for setting aside the ex parte decree.

It was asserted that there was no proper service of the applicant as the address shown in the petition was Village Bharmat, Near Holta Camp, Tehsil Palampur, District Kangra, H.P. whereas her correct address was Village Kir Chamba, Nagrota Bagwan, P.O. Hatwas, Tehsil & District Kangra, H.P. No summonses were served on her permanent address. The applicant would have defended the divorce proceedings, had she known about them. She came to know about the divorce when she was told by Army a Authorities that she was divorced by her husband. She inspected the record and found that she was proceeded ex parte. Therefore, it was prayed that the application be allowed and the ex parte decree be set aside.

3. The legal representatives filed a reply taking preliminary objections regarding lack of maintainability, respondent no. 2 being minor, the application being barred by limitation and the application having been filed against the dead person. The contents of the application were admitted to the extent that the Court had proceeded ex parte against the applicant on 02.04.2007 and Dhani Chand had expired on 12.08.2008. The applicant was not living with Dhani Chand and she was residing

with some other person that is why Dhani Chand had divorced her. Therefore, it was prayed that the application be dismissed.

4. A rejoinder denying the contents of the reply and affirming those of the application was filed.

5. Learned Trial Court framed the following issues on 09.04.2013.

• 1. Whether the applicant is entitled to the relief claimed, as alleged? OPP
• 2. Relief.

6. The parties were called upon to produce their evidence and the applicant examined herself (AW-1). Respondent No.2 examined himself (RW-1).

7. Learned Trial Court held that the address of the applicant was mentioned as resident of Village Bharmat, Near Holta, Camp, Tehsil Palampur, District Kangra, H.P. residing at that time in the house of Devraj. The applicant stated in her proof affidavit (Ext.AW-1/A) that she resides in Village Kir Chamba, Nagrota Bagwan, P.O. Hatwas, Tehsil & District Kangra, H.P. There was no reason to disbelieve her testimony. She was not properly served. Application for setting aside the ex parte decree is maintainable after the death of her husband. Therefore, the

application was allowed and ex parte decree of divorce was set aside. It was further held that the applicant (Kushla Devi) was a legally wedded wife and she was entitled to the family person.

8. Being aggrieved from the order passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court has no jurisdiction for setting aside the ex-parte order after the death of the applicant's husband. The applicant was served by way of publication. She did not appear before the Court despite due publication of the notice in the newspaper. The learned Trial Court did not consider the statement made by Dhani Chand. The applicant gave a permanent address of Village Choota Mani, P.O. Bharwarna, Tehsil Palampur, District Kangra, H.P. which shows that she has given different addresses at various stages of the proceedings. Dhani Chand was left with no option but to serve the applicant by way of publication in the newspaper. The application was filed against the dead person to claim pensionary benefits. It was not possible to file an application after the death of the husband. Therefore, it was prayed that the present application be allowed and the order passed by the learned Trial Court be set aside.

9. I have heard Mr. C.N. Singh and Mr. Arush Matlotia learned Counsel, for the appellants/original respondents and Mr. V.S.Rathore, learned counsel for the respondent/applicant.

10. Mr C.N. Singh, learned counsel for the appellants/original respondents submitted that the application for setting aside the ex parte decree is not maintainable after the death of the husband and the learned Trial Court erred in allowing the application. The applicant was served by way of publication. She did not say that she had not read the newspaper wherein the publication was published. Hence, he prayed that the order passed by the learned Trial Court be set aside.

11. Mr. V.S. Rathore, learned counsel for the respondent/applicant supported the judgment passed by the learned Trial Court and submitted that no interference is required with the same.

12. I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

13. It was laid down by the Supreme Court in R.Lakshmi vs. K. Saraswathi Ammal 1996 (6) SCC 371, that a wife is competent to

6

maintain an application under Order 9 Rule 13 of CPC, even though

the husband is dead. It was observed as under:-

"4. We are of the opinion that the wife should be and is competent to maintain the application under Order IX Rule 13. Even though the husband is dead, yet the decree obtained by him is effective in law and determines the status of the appellant. If the appellant says that it is an ex parte decree and ought to be set aside, her application has to be heard on merits. The decree of divorce determines her status as a wife apart from determining her rights in the properties of her deceased husband. This gives her sufficient locus standi and the right to contest the divorce proceedings even after the death of her husband."

14. This position was reiterated in Yallawwa v. Shantavva,

(1997) 11 SCC 159, wherein, it was held that:-

"6. ….The next question is whether after the decree of divorce is passed ex parte or bipartite against the other spouse whether the right to sue would survive for the spouse against whom such decree has been passed by the court and whether such a decree can be got set aside by the surviving spouse either by filing an appeal or by moving an application under Order IX Rule 13 CPC for getting it set aside if it is an ex parte decree. The answer to the question will depend upon the legal effects of such a decree of divorce passed by the trial court under Section 13(1) of the Hindu Marriage Act. It is obvious that so long as the decree is not passed and proceedings are at any stage prior to the decree, no rights or obligations of either spouse get crystallised. The marital status of both spouses remains intact as it was prior to the filing of the suit. But once a decree gets passed in such proceedings the rights and obligations of the respective spouses who are parties to such proceedings get crystallised under the orders of the

court. The marriage gets dissolved; the status of the spouses gets changed and they become ex-husband and exwife. As a result of such a decree of divorce, the marriage tie is snapped. Both of them become free to marry again as laid down by Section 15 of the Hindu Marriage Act. Not only that after such a decree when the spouses have ceased to be husband and wife and become ex-husband and ex-wife, the proprietary rights of both spouses also get affected. As per Section 8 of the Hindu Succession Act, if a male Hindu dies intestate, his widow would be entitled to inherit his property being a relative specified in Class I of the Schedule. Similarly, if the wife dies leaving behind her any property, as per Section 15 of the Hindu Succession Act, 1956, the property of the female Hindu shall devolve according to the rules set out in Section 16 — firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. Thus if a female Hindu dies leaving behind her children and husband, the husband also becomes entitled to inherit her property as first class heir. Consequently, because of a divorce decree when the spouses do not remain husband and wife, the mutual rights of inheritance in each other's property on the death of either of them get extinguished. Therefore, apart from the divorce decree destroying the erstwhile status of husband and wife, it has a direct impact on the property rights of the spouses concerned. Even that apart, as per Section 9 of the Hindu Adoptions and Maintenance Act, 1956, a Hindu widow is entitled to be maintained out of her deceased husband's estate and failing which by her father-in-law under circumstances laid down by the said section. Even this right will vanish after the decree of divorce when her husband dies after obtaining the said decree against her. It has also to be kept in view that when a decree of divorce gets passed against a spouse on the grounds of matrimonial misconduct mentioned in Section 13(1) of the Hindu Marriage Act, it attaches a social stigma on the spouse concerned. Such a spouse cannot be said to be left without any remedy to get such a finding vacated by filing an appeal

or if it is an ex parte decree to get it set aside by filing an application under Order IX Rule 13 CPC. Cause of action for getting such an adverse finding stigmatising the spouse concerned, cannot be said to be purely a personal cause of action against the departed spouse who was armed with a decree in his or her favour based on such a finding. When such legal effects flow from divorce decree, it cannot be said with any emphasis that proceedings for setting aside such a decree either by way of appeal or if it is an ex parte decree by way of application under Order IX Rule 13 CPC would also abate and such a right to sue for getting the divorce decree set aside by the aggrieved party whose status and proprietary rights get adversely affected by such decree would not survive to such an aggrieved spouse. It is also pertinent to note that as per Section 305 of the Indian Succession Act, 1925 an executor or administrator has the same power to sue in respect of all causes of action that survive the deceased and may exercise the same power for recovery of debts as the deceased had when living. Save and except the personal cause of action which dies with the deceased on the principle of actiopersonalis moritur cum persona i.e. a personal cause of action dies with the person, all the rest of the causes of action which have an impact on proprietary rights and socio-legal status of the parties cannot be said to have died with such a person.

7. The learned counsel for the appellant submitted one objection in connection with such proceedings. He submitted that if such an action survives and the challenge to a decree ex parte or bipartite for divorce is found to be maintainable at the instance of the aggrieved spouse against whom the decree has been passed then persons who are non-spouses will have to be joined in the litigation and this would go counter to Section 13 of the Hindu Marriage Act. This difficulty is more imaginary than real. Once a divorce decree is passed, the stage of launching any petition under Section 13(1) does not survive. It is true that Section 13 of the Hindu Marriage Act lays down that marriage whether solemnised before or after the commencement of

the Act may be dissolved by a decree of divorce on the grounds mentioned therein on a petition presented by either the husband or the wife. Thus, initially, when such a petition is to be presented, the person who presents such petition must be either the wife or husband and the other party would be the other spouse. But once these proceedings are initiated by the aggrieved spouse concerned, the trial then proceeds further. It is of course true that pending such trial if either of the spouses expires then, as seen earlier, the personal cause of action against the husband or the wife, as the case may be, dies with the departing spouse. As no rights are still crystallised by then against or in favour of either spouse, no proprietary effect or any adverse effect on the status of the parties would get generated by mere filing of such petition and the status quo ante would continue to operate during the trial of such petition. However, the situation gets changed once a decree of divorce follows in favour of either of the spouses whether such decree is bipartite or ex parte. Thereafter, as noted earlier, direct legal consequences affecting the status of parties as well as proprietary rights of either of them, as noted earlier, would flow from such a decree. Under these circumstances, if the aggrieved spouse who suffers from such legal effects of the adverse decree against him or her is told off the gates of the appellate proceedings or proceedings for setting aside such ex parte decree, the spouse concerned would suffer serious legal damage and injury without getting any opportunity to get such a decree set aside on legally permissible grounds. Consequently, it may be held that once the petition under Section 13 of the Hindu Marriage Act results into any decree of divorce either ex parte or bipartite then the aggrieved spouse concerned who suffers from such pernicious legal effects can legitimately try to get them reversed through the assistance of the court. In such an exercise, all other legal heirs of the deceased spouse who are interested in getting such a decree maintained can be joined as necessary parties. Section 13(1) of the Hindu Marriage Act can obviously come in the way of

such proceedings being maintained against the legal heirs of the decree-holder-spouse. A mere look at the ground of Section 13(1) will show that a Hindu marriage can be dissolved on the proof of matrimonial misconduct of a very serious nature as mentioned in the concerned grounds, namely, that the offending spouse, after the solemnisation of the marriage, has voluntary sexual intercourse with any person other than his or her spouse; or has treated the petitioner with cruelty; or has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or has ceased to be a Hindu by conversion to another religion; or has been incurably of unsound mind, or has been suffering continuously or intermittently from a mental disorder; or has been suffering from a virulent and incurable form of leprosy; or has been suffering from venereal disease in a communicable form; or has renounced the world by entering any religious order or has not been heard of as being alive for a period of seven years or more. These grounds to say the least, if found established, against the offending spouse would be serious matrimonial misconducts or incapabilities and such a spouse will go with a stigma for the rest of his or her life which will have serious pernicious consequences not only social but also legal, as we have noted earlier. If a decree of divorce on these grounds whether ex parte or bipartite is not permitted to be challenged by the aggrieved spouse, it would deprive the aggrieved spouse of an opportunity of getting such grounds re-examined by the competent court. It cannot, therefore, be said that after a decree of divorce is passed against a spouse whether ex parte or bipartite such aggrieved spouse cannot prefer an appeal against such a decree or cannot move for getting ex parte divorce decree set aside under Order IX Rule 13 CPC. Such proceedings would not abate only because the petitioner who has obtained such a decree dies after obtaining such a decree. The cause of action in such a case would survive qua the estate of the deceased spouse in the hands of his or her

heirs or legal representatives. Consequently in such appellate proceedings or proceedings under Order IX Rule 13 CPC, other heirs of the deceased spouse could be joined as opposite parties as they would be interested in urging that the surviving spouse against whom such decree is passed remains a divorcee and is not treated to be a widow or widower of the deceased original petitioner so that she or he may not share with other heirs the property of the deceased spouse. So far as the other heirs of the deceased spouse are concerned, they would certainly be interested in getting the decree of divorce confirmed by the appellate court or by the trial court by opposing application under Order IX Rule 13 CPC if it is an ex parte decree against the spouse concerned. It must, therefore, be held that when a divorce decree is challenged by the aggrieved spouse in proceedings whether by way of appeal or by way of an application under Order IX Rule 13 CPC for setting aside the ex parte decree of divorce, the right to sue survives to the aggrieved surviving spouse if the other spouse having obtained such decree dies after the decree and before an appeal is filed against the same by the aggrieved spouse or application is made under Order IX Rule 13 by the aggrieved spouse for getting such an ex parte decree of divorce set aside. Similarly, the right to sue would also survive even if the other spouse dies pending such appeal or application under Order IX Rule 13 CPC. In either case, proceedings can be continued against the legal heirs of the deceased spouse who may be interested in supporting the decree of divorce passed against the aggrieved spouse.

8. It is now time for us to refer to the decisions of different High Courts on which strong reliance was placed by either side. The learned counsel for the appellant in support of the alternative contention that proceedings under Order IX Rule 13 CPC would abate on the death of the husband who had obtained an ex parte decree against his wife relied upon a decision of the Madras High Court in the case of SaraswathiAmmal v. Lakshmi [AIR 1989 Mad 216 : (1989) 103 Mad LW 95] wherein a learned Single Judge no doubt

had taken the view which is canvassed by the learned counsel for the appellant. It has been observed by the learned Judge that where on application by the husband alleging that his wife deserted him intentionally and without any justification a decree of divorce was passed ex parte and the husband died subsequently on the passing of the decree, the wife could not seek to set aside ex parte decree thereafter by impleading the legal representatives of the deceased husband. The proceedings for divorce initiated by the deceased husband was purely personal to him and founded on the subsistence of the marriage between him and his wife and on his death the proceedings at whatever stage they were stood abated. When the husband alleged that his wife deserted him without any justification, that complaint was purely a personal complaint of the husband against his wife with which the husband's legal representatives had nothing whatever to do. The very basis for the initiation of proceedings for divorce was purely personal to the husband and when he died, there was no question of its survival in the estate of the deceased husband either for his benefit or for the benefit of the wife. The deceased husband was not seeking the enforcement of any right, which on his death, would vest in his heir at law or the representative of his estate. It is difficult to appreciate this line of reasoning. It is true that such a decree is passed in a petition moved by the husband on the ground of desertion by his wife. It is also true that these proceedings remain purely based on personal cause of action till they reach finality at the trial, but once a decree of divorce is passed certain legal effects regarding the status of parties and even proprietary effects flowing from such decree as noted earlier would arise as a direct consequence of such a decree. That will have a straight impact on the estate of the deceased husband or wife, as the case may be. Unfortunately, the learned Judge was not apprised of these legal pernicious effects flowing from the ex parte decree of divorce against the aggrieved spouse. That had led the learned Judge to assume that there were no

legal consequences of an ex parte decree on the other spouse. It is also not correct to observe that the legal representatives of the husband have nothing to do with these proceedings. As we have seen earlier, the proprietary right of other legal heirs of the deceased husband to get a full share in the deceased husband's property would get directly affected and curtailed if such a decree is set aside. On the other hand, such a right would get enlarged if such a decree is sustained in appeal or is maintained under Order IX Rule 13 CPC. The aforesaid decision of the learned Single Judge of the Madras High Court, therefore, must be held to be erroneous. In Bhan Kaur v. Isher Singh [AIR 1959 Punj 553: 60 Punj LR 136] a view similar to that of the learned Single Judge of the Madras High Court had been taken, which in our view also does not lay down the correct law. On the other hand, we find that a learned Single Judge of the High Court of Bombay in the case of Kamalabai v. Ramdas Manga Ingale [AIR 1981 Bom187: 1981 Hindu LR 793] has correctly held that where an appeal was filed by the wife against the decree of divorce and the respondent died during the pendency of the appeal, the appeal cannot be treated as having abated on the death of the respondent. It was further observed that where the position is not free from doubt equitable consideration must prevail and bearing in mind the nature of the conclusion, the far-reaching effect of the findings of the Court, both on personal status and property rights, it is desirable that the party aggrieved by the decree of the trial court must have the opportunity to have the findings reversed and this opportunity must be assured irrespective of the death of the respondent. For coming to the aforesaid conclusion, the learned Judge had relied upon the earlier decision of the Division Bench of the High Court in the case of Suhas Manohar Pande v. Manohar ShamraoPande[AIR 1971 Bom183: 1970 Mah LJ 788] and the decision of the Division Bench of the Andhra Pradesh High Court in the case of VempaSunanda v. VempaVenkataSubbarao[AIR 1957 AP 424: 1956 Andh LT 734: 1956 Andh WR 853]. It must, therefore, be held that after a

decree of divorce is obtained by the petitioning husband against his wife she has the right to file an appeal and such appeal does not abate on account of the death of the respondent-husband whether such death takes place prior to the filing of appeal or pending the appeal. Similarly, if an ex parte decree of divorce is obtained against the wife and thereafter if the husband dies, the aggrieved wife can maintain an application under Order IX Rule 13 CPC, even though the husband might have died prior to the moving of that application or during the pendency of such application. In all such cases, other legal heirs of the deceased husband can be brought on record as opponents or respondents in such proceedings by the aggrieved spouse who wants such decree to be set aside and when the other heirs of the deceased husband would naturally be interested in getting such decree confirmed either in appeal or under Order IX Rule 13 CPC. The second alternative contention as canvassed by the learned counsel for the appellant, therefore, stands rejected.

9. Before parting with the discussion on this point, we may mention that in a recent decision of a two-member Bench of this Court consisting of B.P. Jeevan Reddy and K.S. Paripoornan, JJ. in CAs Nos. 12664-65 of 1996 dated 22-9- 1996 the decision of the learned Single Judge of the Madras High Court in SaraswathiAmmal v. Lakshmi[AIR 1989 Mad 216 : (1989) 103 Mad LW 95] has been reversed and the learned Judges have taken the same view which we are inclined to take in the facts and circumstances of the present case."

10. Therefore, in view of the binding precedent of the Hon'ble Supreme Court, the submission that the petition for setting the ex parte decree does not lie after the death of the husband is not sustainable.

11. It was submitted that the application was hopelessly barred by limitation as the same was filed beyond the period of 30 days provided in Article 123 of the Limitation Act, 1963. Reliance was placed upon the judgment of this Court in Archna (Rachna) vs. Satish Kumar, AIR 2020 HP 75 in support of this submission. This submission is not acceptable. Explanation to Article 123 of the Limitation Act, clearly provides that service by way of publication will not be considered due service within the meaning of this Article. It was laid down by this Court in H.P.Financial Corporation Vs. M/S.Shivalik Forgings Private Limited and another 1999 (3) Shim. LC 155, that in view of the explanation to Article 123 of the Limitation Act a substituted service shall not deemed to be a due service:-

"12. Article 123, Limitation Act, 1963, provides for a period of limitation of thirty days for an application for setting aside the ex-parte decree. Such period of thirty days is to be reckoned from the date of the decree, and in the case where the summons or notice was not "duly served" on the defendant, from the date of knowledge of the ex-parte decree.

13. The 'Explanation' to Article 123, Limitation Act, 1963, provides that for the purpose of the article, substituted service under Rule 20 of Order 5, Code of Civil Procedure, shall not be deemed to be due service.

14. As stated above, the defendants/applicants were served

through substituted service within the meaning of Order 5, Rule 20, Code of Civil Procedure. Therefore, in terms of 'Explanation' to Article 123, Limitation Act, 1963, they would not be deemed to have been "duly served" and, as such, the period of limitation of thirty days will have to be reckoned from the date of knowledge of the ex-parte decree."

17. It was further held that even though the service by way

of publication may not be due service for computing the period of

limitation but the applicant has to show that he had no knowledge

of the proceedings. It was observed:

27. According to the defendant/applicant, he came to know about the execution proceedings and the ex-parte decree on 15.7.1995 when he was told about the same by one of his relations at Chandigarh. Though in the application for setting aside the ex-parte decree, the defendant/applicant has not given the name of his relation who informed him about the ex-parte decree or the pending execution proceedings, while appearing as AW-1 he has stated that he was informed by his cousin brother Surjit Singh of Jalandhar. This Surjit Singh has not been examined by the defendant/applicant. On his failure to do so, an adverse inference has to be drawn against him.Therefore, even if it be assumed that the defendant/applicant was not aware of the civil suit against him, he has failed to prove the date on which he derived knowledge of the decree and, as such, the application made for the setting aside of the decree dated 21.5.1990 cannot be said to be within time.Apart from pleading that they were not duly served, the defendants/ applicants have neither pleaded nor proved sufficient grounds either for the condonation of delay in making the application or for the setting aside of the ex-parte decree.

Neither the delay can be condoned nor the ex-parte decree can be set aside merely on the ground that there was no

"due service" within the meaning of Article 123, Limitation Act, 1963.

28. The High Court of Punjab and Haryana in Kanshi Ram Mohan Lal v. SmtBhagwan Kaur (AIR 1970 P&H 300) had the occasion to deal with the scope of the provisions contained in "Explanation" to Article 123, Limitation Act, 1963, and that contained in sub-rule (2) of Rule 20, Order 5, Code of Civil Procedure. It was held:-

"......The two provisions have to be so read as to avoid any conflict, and it is immediately apparent that the Explanation to Article 123, on its very words, has to be confined to that Article alone and for the purpose of limitation an ex-parte decree can be set aside within thirty days from its date, but, where there has been no due service, within thirty days from the knowledge of the decree. In the case of substituted service under Rule 20 of Order 5 it would not ordinarily be open to the party served under that rule to say that there was no due service, because subrule (2) of Rule 20 of Order 5 says specifically that such substituted service shall be as effectual as personal service. It is the rigour of this sub-rule which the Explanation to Article 123 is meant to meet, but only for the purpose of enablingthe person against whom an ex-parte decree has been passed to make an application to have the decree set aside.Once he is permitted to make an application for setting aside a decree in spite of service under Rule 20 of Order 5, the merit of the matter still remains for him to meet, that is to say, it still remains for him to prove that he was not duly served. If he fails in that, then while his application shall have been made within time but he would fail on the merit of his application. So the Explanation to Article 123 does not either abrogate in any way sub-rule (2) of Rule 20 of Order 5 or operate as a limitation of any kind of that sub-rule....."

29. The defendants/applicants in the present case have failed to prove that they were not duly served within the ambit of sub-rule (2) of Rule 20, Order 5, Code of Civil Procedure.

30. A similar view was taken in Satish Kumar Kohli v. Kiran

Bala, 1971 SCC OnLine P&H 221,wherein it was observed:-

"(8) Shri Aggarwal canvasses two propositions of law before me, first that the summons in this case were not 'duly served' within the meaning of Order IX rule 13 of the Code and that in view of the phraseology employed, it was not necessary for the appellant to allege or prove any sufficient cause for his non-appearance on the dates of hearing in Court. Secondly that there was no due service of the notices in the case and that the terminus a quo for the running of the period of limitation of 30 days prescribed in Article 123 is the date on which the appellant had knowledge of the decree. The last submission is based on the explanation to Article 123 and as long as the appellant could prove that he had filed the application within 30 days of his coming to know of the passing of the decree he cannot be nonsuited on the ground that his application was time-barred. There is, therefore, no quarrel with the last submission made by Shri Aggarwal. He would, however, like this explanation to guide us in the interpretation of the words 'duly served' occurring in Order IX, rule 13 of the Code. The opening clause of the explanation, however, suggests that it has been enacted only for the purposes of Article 123 of the Limitation Act. No such explanation was to be found in the corresponding Article 164 of the old Limitation Act No. 5 of 1908. The explanation may appear to have been inserted in the new Limitation Act as it was felt that in some cases the party filing a suit or appeal, etc., colluded with the process servers or postmen to get fictitious reports about evasion or refusal of the process by the defendant or respondent and that very often orders for substituted service followed such fictitious or collusive

reports in routine or as a matter of course. In order to prevent any miscarriage of justice, the explanation provided that in cases of substituted service, the date of the knowledge of the decree should furnish the terminus a quo for the running of the limitation period. There is, however, no authority in support of Shri Aggarwal's argument that this explanation would also govern the interpretation of the words 'duly served' in Order IX, rule 13. The argument that Article 123 and Order IX, rule 13 deal with the same matter and that the two provisions must receive a harmonious construction might have carried some weight had it not been for the fact that sub-rule (2) of Rule 20 of Order V which lays down, that substituted service shall be as effectual as if it had been made on the defendant personally remains unaffected by the recent changes in the law of limitation. It is obvious that the application of the explanation was confined by the Legislature to Article 123 with, the intention of leaving rule 20(2) unchanged. Definitions or explanations found in one Act cannot always be a safe guide for the construction of the provisions of another Act or Code and this would be more so when an explanation expressly says that it has been enacted only for the purposes of a particular article or section. There is no controversy over the interpretation of the words 'served' or 'service' when used in respect of a process issued by a Court and the words 'due' or 'duly' which have not been defined in the Code or the Limitation Act must receive ordinary dictionary meaning while we are Interpreting the provisions of the Code. The words 'duly served' In Order IX, rule 13 must, therefore, receive their ordinary dictionary meaning. According to Webster's International Dictionary 'duly' means in a due or proper or regular manner. According to Black's Law Dictionary, 'duly' means in a due or proper form or manner or according to legal requirements or according to law in both form and substance. So if we find, as I do in the present case, that the provisions of the Code have been properly complied with in effecting the appellant's service and there

are no defects or irregularities in observing the requirements of the law, the appellant would be taken to have been 'duly served' with notices in this case. To hold otherwise would render substituted service meaningless in most cases as the defendant could go on evading service and then have the ex parte decree set aside as a matter of course as long as he applied within time. He could go on spurning the process of Court thereby delaying the proceedings and after having forced the Court's hands to resort to substituted service make a mockery of that mode of service which has been declared by rule 20(2) to be as effectual as personal service. This would make it necessary for the appellant to satisfy the Court that he was prevented by any sufficient cause from appearing when the suit was called on various hearings. The evidence about any such sufficient cause for non-appearance which could satisfy the Court is conspicuous by its absence in the present case. The appellant had, therefore, failed to make out a good case for the setting aside of the ex parte decree. The appellant's male vanity had led him to ignore the imputations of adultery when his co-respondent living in the same house at Delhi had been stung deep enough to take up the defence of the case by putting in an appearance on a number of hearings in a Court situated hundreds of miles away.

(9) Even if for the sake of arguments only I were to accept Shri Aggarwal's submission, it would be necessary for the appellant to prove that he had applied in time for the setting aside of the ex parte decree. If the statute were to start running from the appellant's knowledge, the onus was on the appellant to prove when and how he had received information about the passing of the decree. This has been so held in Sohan Lal v. Poonam Chand, a ruling cited by Shri Aggarwal. Once the appellant had been fixed with the knowledge of the filing of the proceedings, it is too much to accept that he had no knowledge about the passing of the decree for a period of more than four months. Once a party has come to know of a pending case, he is supposed to keep himself informed about the progress of the

proceedings from date to date. The service effected by affixation under rule 17 could have been treated by the Court as due service under rule 19 of Order V of the Code and if ex parte proceedings had been taken on that service there was no question of the application of the explanation under Article 123 and the time would have started running from the date of passing of the decree and not from the date of the knowledge of the decree. It was only by way of abundant caution that the court had directed substituted service under Order V, rule 20 of the Code."

19. Therefore, the combined effect of Order 5 Rule 20 of CPC and Article 123 of the Limitation Act is that the service by way of publication will not be construed to be a due service for computing the period of limitation but the applicant has to establish that she had no knowledge of the proceedings.

20. The applicant asserted in the proof affidavit (Ext. AW-1/A) that she was residing at Village Kir Chamba, Nagrota Bagwan, P.O. Hatwas, Tehsil & District Kangra, H.P and her address was wrongly mentioned as Village Bharmat, Near Holta Camp, Tehsil Palampur, District Kangra, H.P. She denied in her cross-examination that she used to reside at Village Bharmat or that she had filed a false affidavit. She also denied that summons were served upon her parents' address.

21. A perusal of the record of the main petition shows that the summons issued at the Bharmat address was returned with

the report that Kushla Devi did not reside at Village Bharmat in the house of Devraj. This corroborates the version of the applicant that she did not reside at Village Bharmat and her address was incorrect.

22. Dhruv Chand (RW-2) did not state in his proof affidavit that Kushla Devi was residing with some other person at Village Bharmat. He stated in his cross-examination that he could not say that Dhani Chand had not deliberately mentioned the correct address of Kushla Devi as Village Kir Chamba, Nagrota Bagwan, P.O. Hatwas, Tehsil & District Kangra, H.P and had mentioned her address as resident of Village Bharmat, Near Holta Camp, Tehsil Palampur, District Kangra, H.P.

23. The statement of this witness shows that there is no denial of the averments of the applicant that she was not a resident of Village Bharmat, Near Holta Camp, Tehsil Palampur, District Kangra, H.P.

24. The applicant asserted that she came to know about the divorce when she received a letter written by the Army Authorities informing her that she was divorced by her husband. A copy of the letter dated 17.02.2009, has been annexed to the

application in which it was mentioned that as per the verification report, the applicant is not entitled to grant of family pension. This letter was sent at the address ofVillage Kir Chamba, Nagrota Bagwan, P.O. Hatwas, Tehsil & District Kangra, H.P. This letter corroborates the version of the applicant that she was residing in Village Kir Chamba, Nagrota Bagwan, P.O. Hatwas, Tehsil & District Kangra, H.P. Therefore, the learned Trial Court had rightly held that no efforts were ever made to serve her at Village Kir Chamba and the service effected upon the applicant was bad.

25. A heavy reliance was placed upon the fact that the notice was published in a Hindi newspaper i.e. Amar Ujala and there is no evidence that the applicant had not read the notice. An extract of the newspaper has been placed on record. It was mentioned that publication was made in the newspaper "Amar Ujala, Kullu News". The masthead also mentions Kullu News, even though the by-line of Dharamshala has been mentioned. The applicant was stated to be a resident of Dharamshala. Therefore, it is not clear from the newspaper, whether the publication was made in a newspaper circulating in the area, where the applicant was residing or not. It was laid down in Great Punjab Agro

Industries Ltd. v. Khushian, (2005) 13 SCC 503: 2005 SCC OnLine SC 1285 that publication has to be made in the newspaper circulating in the area where the defendant last resided. It was observed:

"The notice to the appellant is by way of substituted service. The substituted service was published in the Tribune and the Punjab Kesari which have circulation only in the State of Punjab. Admittedly, the appellant stays at Bombay. The newspapers in which the notice was published by way of substituted service, namely, the Tribune and the Punjab Kesari have no circulation in Bombay. Order 5 Rule 20(1-A) CPC enjoins that if the service of notice is by advertisement in the newspaper, it shall be in the daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided. In the instant case, the procedure prescribed under Order 5 Rule 20(1-A) with regard to substituted service has been violated. In the premises, it cannot be said that the summons upon the defendant were effectively served. In this view of the matter, the ex parte decree dated 16-4-1994 is set aside."

26. Therefore, no advantage can be derived from the notice published in the newspaper.

27. Thus, there is no infirmity in the order passed by the learned Trial Court holding that the applicant was not properly served.

28. It was submitted that the learned Trial Court erred in not relegating the parties to the divorce proceedings, which is a necessary consequence of setting aside the ex parte decree. This

submission cannot be accepted. It was laid down in Yallawwa's case(supra) that the matter cannot be proceeded further after the death of the husband because the cause of action for divorce is personal and does not survive to the legal representatives. It was observed:-

"10. Now remains the question as to whether the proceedings for divorce as restored by the High Court by its impugned order are required to be preceded further or the curtain must be dropped on the said proceedings. As the ex parte decree is found to be rightly set aside by the High Court, the marriage petition would automatically stand restored on the file of the learned trial Judge at the stage prior to that at which they stood when the proceedings got intercepted by the ex parte decree. Once that happens it becomes obvious that the original petitioner seeking a decree of divorce against the wife being no longer available to pursue the proceedings now, the proceedings will certainly assume the character of a personal cause of action for the deceased husband and there being no decree culminating into any crystallized rights and obligations of either spouse, the said proceedings would obviously stand abated on the ground that right to sue would not survive for the other heirs of the deceased husband to get any decree of divorce against the wife as the marriage tie has already stood dissolved by the death of the husband. No action, therefore, survives for the court to snap such a non-existing tie, otherwise, it would be like trying to slay the slain. At this stage, there remains no marriage to be dissolved by any decree of divorce. Consequently, now that the ex parte decree is set aside, no useful purpose will be served by directing the trial court to proceed with the Hindu marriage petition by restoring it to its file. The Hindu Marriage Petition No. 25 of 1989 moved by Shri Basappa,

the husband of the respondent, on the file of the Court of Civil Judge, Gadag will be treated to have abated and shall stand disposed of as infructuous. The appeal is disposed of accordingly. In the facts and circumstances of the case, there will be no order as to costs."

29. Therefore, in view of the binding precedents of the Hon'ble Supreme Court, the proceedings could not have been continued and the learned Trial Court had rightly declined to revive the proceedings.

Final order:

30. In view of the above, the present appeal fails and the same is dismissed.The record of the case be remitted back to the learned Courts below.

Pending miscellaneous applications, if any, also stand disposed of.

(Rakesh Kainthla) Judge

10th November, 2023 (Ravinder)