Dawood v. Zubaida

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 10TH JUNE 2010 / 20TH JYAISTHA 1932 Mat.Appeal.No. 546 of 2009(F) ---------------------------OP.225/2007 of FAMILY COURT, KASARAGOD .................... APPELLANT/RESPONDENT: --------------- DAWOOD, AGED 25 YEARS, S/O. BEERAN, DAWOOD MANXIL, OLIYATHADKA, KUDLU VILLAGE, KASARGODE TALUK AND DIST. BY ADV. SRI.JAWAHAR JOSE RESPONDENT/PETITIONER --------------- ZUBAIDA B.A., D/O. D.M. ABDULLA, RESIDING AT MAVUVALAPPIL HOUSE, BENDICHAL P.O., THEKKIL, KASARGODE TALUK AND DIST. ADV. SRI.K.V.SOHAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **R.BASANT & M.C.HARI RANI, JJ.** ********************** ## **Mat.Appeal No.546 of 2009** ********************* Dated this the 10[th] day of June, 2010 ## JUDGMENT ## BASANT, J. Can a recalcitrant litigant be permitted to take advantage of the alleged inadequacy in the service of notice when it is clear as day light that he had full knowledge of the proceedings and opportunity to participate in the same? This question arises for consideration in this appeal. 2. This appeal is preferred by the appellant through his power of attorney holder, his father, against dismissal of applications to condone the delay of 330 days and to set aside an exparte order of divorce passed against him under Section 2 of the Dissolution of Muslim Marriages Act, 1939. 3. To the skeletal facts first. The marriage took place on 18.07.2004. The wife claimed divorce under Section 2 of the Dissolution of Muslim Marriages Act in a petition filed in 2007 - as O.P.No.225 of 2007. The appellant/husband was employed abroad. Notice could not be personally served on him. Attempt was made to effect service by affixture at the place of permanent 2 **Mat.Appeal No.546 of 2009** residence of the appellant in India. The notice was affixed. To that affixture, the father of the appellant, his present power of attorney holder, was a witness. The appellant did not appear even thereafter. It was, in these circumstances, that on 15.01.2008, an exparte decree was passed against the appellant dissolving the marriage. Long later, after the lapse of about a year, the appellant filed an application to set aside the exparte order. That application was preferred by him through his father/power of attorney holder. Along with that application, he filed another application to condone the delay of 330 days in filing such application. 4. The applications were opposed. The father of the appellant examined himself as PW1. Ext.A1 photocopy of the passport of the appellant was marked. The court below on an anxious consideration of all the relevant circumstances came to the conclusion that the appellant had full knowledge of the proceedings and that he had deliberately not participated in the proceedings. The court took the view that the evidence tendered by PW1 is insufficient to come to a conclusion that the appellant was wrongly set exparte. The long delay of 330 days was not sufficiently explained, opined the court. The court had before it 3 **Mat.Appeal No.546 of 2009** the undisputed circumstance that the appellant had married again during the subsistence of the earlier marriage. The court further took the view that the appellant does not deserve a further opportunity to contest the proceedings. Accordingly the court proceeded to pass the impugned order. It is this common order that is assailed in this appeal. 5. The learned counsel for the appellant submits that the appellant, at the relevant time, was residing abroad at his place of employment and he was not available in India. This fact was known to the respondent/wife. In spite of knowledge of that fact, she did not take any steps to get service effected at the place of residence of the appellant abroad. Instead, she only took steps to get service effected at his place of residence in India. When personal service could not be effected, she attempted to get service effected by affixture. The fact that service by affixture was effected and the fact that PW1, the father of the appellant, who later on obtained power of attorney from him, was a witness to the affixture is of course not disputed. Still later publication was taken out in an edition of the Kerala Kaumudi news paper. 6. According to the learned counsel for the appellant, notice ought to have been taken to the place of residence of the 4 **Mat.Appeal No.546 of 2009** appellant abroad. According to him, effecting service at the place of permanent residence of the appellant in India is incorrect, improper and insufficient. Service by affixture, to which PW1 was a party, cannot, in these circumstances, cure the defect/inadequacy in service. The mere fact that the father of the appellant had knowledge of service of notice by affixture at a time when he was not the power of attorney holder of the appellant cannot, under any circumstances, affect the plea of the appellant that there has been no proper service and the court was wrong in setting him exparte. The publication in the news paper in an edition which has circulation only at his place of permanent residence in India is not sufficient and cannot be held to be adequate. In support of these contentions, the learned counsel for the appellant heavily relies on the following decisions. **Great Punjab Agro Industries Ltd. v. Khushian** [92005) 13 SCC 503], **Rabindra Singh v. Financial Commr.** [(2008) 7 SCC 663], **Naresh Chandra Agarwal v. Bank of Baroda and other** s [(2001) 3 SCC 163] and **Chathu v. Gopalan** [1981 KLT 103]. 7. The learned counsel for the respondent/wife on the other hand contends that there is absolutely no merit in the 5 **Mat.Appeal No.546 of 2009** contentions raised by the appellant. The learned counsel relies on the second proviso to Order 9 Rule 13 of the Code of Civil Procedure, which we extract below: “13. Setting aside decree ex parte against defendant -- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: [Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had 6 **Mat.Appeal No.546 of 2009** notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. (Explanation--Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.)” (emphasis supplied) The counsel contends that the appellant had full knowledge of the pendency of the proceedings. He had deliberately not appeared before court. He can by no stretch of imagination be heard to contend that he had no knowledge of the pendency of the proceedings. His father was a witness to the affixture. The father or the son does not have a case that information about the affixture was not known to the father or was not conveyed by the father to the appellant. It cannot be lost sight of that it is the very same father, who as the appellant's attorney, has tendered evidence before court as PW1. Did not PW1 inform his son, the appellant, of the affixture of the court's notice on his premises with him as a witness? If he did not, why did he not inform the appellant? If he did inform the appellant, why did the appellant 7 **Mat.Appeal No.546 of 2009** remain mute and inactive till 330 days elapsed from the date of the decree? No effective answers are forthcoming to all these queries. The inference appears to be irresistible that the appellant, who had no intention to contest the proceedings, is now belatedly making attempt to undo the successful efforts made by the respondent to obtain a decree. 8. The learned counsel for the appellant attempts to advance a contention that on merits the decree for divorce is not justified. The decree can be assailed only on the basis of the materials that are presently available. Attempt to import materials from other proceedings which are there cannot obviously be permitted by this Court. On the materials available, the decree for divorce appears to be absolutely justified. 9. The learned counsel for the respondent submits that the emptiness and hollowness of these contentions of the appellant against the exparte decree for divorce can be deciphered from the fact that he had admittedly remarried even while the petition was pending. We have been taken through the exparte evidence tendered by the wife in O.P.No.225 of 2007. It has been asserted by her that her husband is guilty of cruelty, that he has married again and that he is not desirous of 8 **Mat.Appeal No.546 of 2009** continuing the marriage. In the light of the decision in **Abdurahiman v. Khairunneesa** [2010 (1) KLT 891], the learned counsel for the respondent contends that attempt of the appellant to resist the claim for divorce is without any merit or substance. 10. We have considered all these contentions. We are satisfied that the second proviso to Order 9 Rule 13 of the Code of Civil Procedure must guide and control the controversy raised. It is crystal clear, nay there is not a semblance of doubt in the mind of the Court that affixture was attempted and effected at the permanent residence of the appellant in India in the presence of his father who, later on, has become his power of attorney holder. In the total absence of even a contention that PW1, the father of the appellant, did not convey the fact of affixture of notice to the appellant, the valiant attempt made belatedly to get the exparte order set aside, must be found to be without any merit. 11. The rationale of the second proviso to Order 9 Rule 13 must be alertly imbibed. The rule of natural justice universally accepted oblige the Courts in all refined societies to insist that no one should be visited with an adverse consequence unless he 9 **Mat.Appeal No.546 of 2009** has been given an effective and reasonable opportunity to be heard - to show cause against such an adverse order. Such salutary rule should not deliver any undeserved advantage to any recalcitrant litigant who does not make use of the opportunity which was made available to him. It would be inequitable to permit such party to exploit and take advantage of the salutary rule, when he really had knowledge of the proceedings and sufficient time and opportunity to appear and answer the claim. The inequitable nature of the appellant's claim is evident from the fact that PW1, the father of the appellant, the sole witness examined on his side conveniently does not assert that he who was a witness to the process of affixture did not convey the information to the appellant. Bona fides is not a virtue that we can discover or invent in the hands of the appellant. It will not be inapposite in this context to note the conduct of the appellant of marrying again while the matrimony with the respondent was subsisting and the entitlement of the wife for an order of divorce on that sole ground in the light of **Abdurahiman v. Khairunneesa** (supra), notwithstanding the fact that a decree for divorce has not now been granted on the ground of matrimonial cruelty. 10 **Mat.Appeal No.546 of 2009** 12. We do not find any merit in the challenge raised. The challenge raised in this appeal must, in theses circumstances, fail. 13. This Mat.Appeal is, in these circumstances, dismissed. ( **R.BASANT, JUDGE** ) ( **M.C.HARI RANI, JUDGE** ) rtr/