Citation Codes

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citation codes

Case Number

C.O No. 1123 of 2009

Attorney(S)

For the Petitioner : Mr. Bidyut Kr. Banerjee,
Mr. G.K Thakur.
For the Opposite Parties. : Mr. Ayan Banerjee,
Mr. Raja Guin.

Judges

The Hon'ble Justice Jyotirmay Bhattacharya

Acts

Code of Civil Procedure including the provision of Order IX of the Code of Civil Procedure
Order 8 Rule 5 of the Code of Civil Procedure, provision contained in Order 9 Rule 13
provisions contained in Section 21 read with Section 28(1) of the Hindu Marriage Act.
SECTION 21 A HINDU MARRIAGE ACT
Section 28(1) of the Hindu Marriage Act, as the said provision
provision of Section 28(1) of the Hindu Marriage Act
Order 9 Rule 13 of the Code of Civil Procedure.
Order 8 Rule 5 of the Code of Civil Procedure
ARTICLE 227 CONSTITUTION OF INDIA
8 Rule 5 of the Code of Civil Procedure
Order 9 Rule 13 of the Code of Civil
HINDU MARRIAGE ACT
Order 21, Rule 90
Order 9 Rule 13

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Smart Summary

Judgment Summary — Jyotirmay Bhattacharya, J.

Court: High Court (judgment delivered by Jyotirmay Bhattacharya, J.)
Procedural Posture: Revisional application under Article 227 challenging an order of the learned Trial Judge setting aside an ex parte divorce decree.
Key Statutes & Rules Referenced: Order 9 Rule 13, Order 8 Rule 5, Code of Civil Procedure; Section 21 and Section 28(1), Hindu Marriage Act.

Factual and Procedural Background

The petitioner (husband) filed a matrimonial suit for divorce in the Court of the learned District Judge at Uttar Dinajpur. The suit was subsequently transferred to the Court of the learned Additional District Judge, Fast Track Court, 2nd Court at Raiganj. An ex parte decree was passed in the suit on 10th January, 2006 (order no. 16).

The opposite party (wife) filed an application under Order 9 Rule 13 of the Code of Civil Procedure seeking to set aside the ex parte decree; the application was registered as Misc. Case No. 1 of 2006. She explained her non-appearance by alleging that her advocate's clerk failed to update his diary (not recording the last two dates fixed for ex parte hearing after transfer), and that she was not informed of those dates. The husband contested the application, alleging mala fides and seeking its rejection.

Evidence was led by both parties: the lawyer's diary was produced and the advocate's clerk testified that he was unaware of the transfer to the Fast Track Court and therefore did not update the diary or take effective steps on the last two dates. The learned Trial Judge found that the opposite party was prevented by sufficient cause (attributable to the lawyer's clerk) from appearing and set aside the ex parte decree, restoring the suit to its original file.

The petitioner challenged the propriety of that order by filing a revision under Article 227 of the Constitution of India.

Legal Issues Presented

Whether the learned Trial Judge was justified in setting aside the ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure on the ground that the defendant's non-appearance was due to the negligence of her advocate's clerk.
Whether an application under Order 9 Rule 13 to set aside an ex parte decree in a matrimonial suit is maintainable when a decree in a matrimonial suit is appealable under Section 28(1) of the Hindu Marriage Act — i.e., whether Section 28(1) ousts the remedy under Order 9 Rule 13 in such cases.

Arguments of the Parties

Petitioner / Husband's Arguments

The husband's principal challenge focused on maintainability: he argued that decrees in matrimonial suits (whether contested or ex parte) are appealable under Section 28(1) of the Hindu Marriage Act and therefore the wife should have challenged the decree by way of appeal; the application under Order 9 Rule 13 was, according to him, not maintainable.
He alleged that the wife was not interested in reconciliation and that her application was mala fide and filed only to prolong litigation.
He relied on two High Court decisions (Bombay and Guahati) in support of the proposition that Order 9 Rule 13 cannot be invoked in certain circumstances to set aside decrees in matrimonial matters.

Opposite Party / Wife's Arguments

The wife explained her non-appearance as caused by the negligence of her advocate's clerk who failed to update his diary after the suit was transferred to the Fast Track Court; she was not informed of the dates fixed for ex parte hearing.
She sought relief under Order 9 Rule 13, claiming the failure to appear was beyond her control and therefore sufficient cause existed to set aside the ex parte decree.
She produced the advocate's diary and examined the clerk in support of her claim; those materials were relied upon by the Trial Judge when setting aside the decree.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tejbai Tejshi v. Smt. Gangubai Dinanath Ulvekar, 2002 Vol. 104(1) Bombay L.R. 137	Held that where a decree is passed under Order 8 Rule 5 of the CPC, Order 9 Rule 13 cannot be invoked to set aside such a decree because such a decree is not to be regarded as an ex parte decree for the purposes of Order 9 Rule 13.	The Court distinguished this precedent: it found Order 8 Rule 5 was not the basis for the decree in the present case (the decree here followed ex parte evidence after non-participation by the defendant), and therefore the Bombay decision was not applicable to the facts before it.
Anjan Kumar Kataki v. Smt. Minakshi Sarma, AIR 1985 Guahati 44	Interpreted Section 21 read with Section 28(1) of the Hindu Marriage Act and concluded that Section 28(1) is mandatory so that all decrees (contested or ex parte) must be challenged by appeal under Section 28(1) and cannot be set aside under Order 9 Rule 13 of the CPC.	The Court expressly disagreed with this view. It refused to follow the Guahati decision's conclusion that Section 28(1) excludes the remedy under Order 9 Rule 13 and explained reasons for non-concurrence in the judgment.
Smt. Bimala Debi v. Aghore Chandra Mallick, AIR 1975 Cal 80 (Full Bench)	Held that where a decree has been dismissed for default and an appeal is preferred, the Appellate Court would have to go by the record and would generally have no material to determine whether the appellant was prevented by sufficient cause from appearing before the Trial Court; therefore the appeal alone may not be an effective remedy in such cases.	The Court relied on this Full Bench decision to support the proposition that an application under Order 9 Rule 13 before the Trial Court is an effective and available remedy to set aside an ex parte decree, and that Section 28(1) of the Hindu Marriage Act does not by necessary implication exclude that remedy.

Court's Reasoning and Analysis

The High Court reviewed the Trial Judge's findings and the evidence on record (lawyer's diary and the clerk's testimony) and found no perversity in the Trial Judge's order setting aside the ex parte decree. The central elements of the Court's legal analysis are as follows:

Fact assessment: The Trial Judge correctly found that the wife's non-appearance was due to sufficient cause — specifically, the negligence of her advocate's clerk who failed to update diary entries after the suit's transfer. The Court accepted the Trial Judge's factual conclusions based on the materials.
Agency and fairness principle: The Court reasoned that a party should not be penalized for the default of her engaged lawyer or the lawyer's clerk when she had reposed confidence in that lawyer to defend her suit. Where the default is attributable to the lawyer's servant, relief under Order 9 Rule 13 is available to mitigate injustice to the affected party.
Statutory interpretation — relationship between Section 21 of the Hindu Marriage Act and the CPC: The Court noted Section 21 makes the CPC applicable to matrimonial proceedings, including the provisions of Order IX.
Interaction of Section 28(1) (appeal) with Order 9 Rule 13: Although Section 28(1) makes decrees in matrimonial suits appealable, the Court held that Section 28(1) does not by necessary implication oust the remedy under Order 9 Rule 13. The Court emphasized practical considerations: an appeal court generally must decide on the record and would lack material to assess whether the appellant was prevented by sufficient cause from appearing at trial; hence appellate remedy can be illusory in such circumstances.
Reliance on precedent: The Court relied on the Full Bench decision in Smt. Bimala Debi to reinforce the proposition that trials courts should be permitted to hear applications under Order 9 Rule 13 to set aside ex parte decrees because the Appellate Court is not well-placed to adjudicate the sufficiency of cause when records lack evidence on that point.
Distinguishing contrary authority: The Court reviewed the Bombay decision and explained that it was concerned with decrees passed under Order 8 Rule 5; since the present decree was not recorded as having been passed under Order 8 Rule 5 and instead followed ex parte evidence after defendant's non-participation, the Bombay principle did not apply. The Court also expressly disagreed with the Guahati decision's categorical exclusion of Order 9 Rule 13 in matrimonial matters on the basis of Section 28(1).

Holding and Implications

HOLDING: The revisional application under Article 227 is rejected; the High Court declined to interfere with the Trial Judge's order setting aside the ex parte decree and restoring the suit to file. The Court held that Order 9 Rule 13 of the Code of Civil Procedure can be resorted to for setting aside an ex parte divorce decree even though such decree is appealable under Section 28(1) of the Hindu Marriage Act.

Implications:

Direct effect: The Trial Judge's order setting aside the ex parte decree is upheld and the suit was restored to its original file; the revisional challenge fails.
Remedial principle affirmed: The judgment affirms that a defendant in a matrimonial suit who can demonstrate sufficient cause for non-appearance (for example, through the negligence of the defendant's lawyer or the lawyer's clerk) may seek relief under Order 9 Rule 13 rather than being restricted solely to an appeal under Section 28(1) of the Hindu Marriage Act. The Court reasoned that an appeal alone may not furnish adequate material for the appellate court to determine sufficiency of cause.
Precedential note: The Court distinguished the Bombay decision where Order 8 Rule 5 was the relevant basis for the decree and disagreed with the Guahati decision to the extent that it holds Section 28(1) bars resort to Order 9 Rule 13. The Court relied on the Full Bench decision in Smt. Bimala Debi for support.
No further infirmity found: The High Court did not find perversity or any other ground to interfere with the Trial Judge's exercise of discretion in setting aside the ex parte decree on the facts presented.

Disposition: Revisional application dismissed. The Trial Court's order setting aside the ex parte decree is maintained. Certified copies to be supplied expeditiously if applied for.

Judge: JYOTIRMAY BHATTACHARYA, J.

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Sujit Paul v. Mousomi Paul (Poddar)

Jyotirmay Bhattacharya, J.:— The petitioner/husband filed a suit for divorce against his wife viz. the opposite party herein in the Court of the learned District Judge at Uttar Dinajpur. The said suit which was subsequently transferred to the Court of the learned Additional District Judge, Fast Track Court, 2nd Court at Raiganj, was ultimately decreed ex parte on 10th January, 2006 vide order no. 16.

The opposite party filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the said ex parte decree passed in Matrimonial Suit No. 53 of 2004. The said proceeding was registered as Misc. Case No. 1 of 2006. The reasons for her non-appearance before the Court on the date which was fixed for the ex parte hearing of the said suit was explained by the opposite party in her said application. It was alleged by her that such default was committed due to the laches on the part of her Advocate's clerk who failed to update his diary by not recording the last two dates which were fixed for ex parte hearing of the said suit by the Court where the suit was subsequently transferred for disposal. The opposite party, thus, claimed that the reasons which prevented her from appearing before the Court were absolutely beyond her control as she was never informed about the dates which were fixed for ex parte hearing of the suit, by her learned Advocate. Accordingly, she prayed for setting aside of the said decree.

The petitioner/husband contested the said proceeding by filing objection denying the averments made out by the opposite party in her said application. The husband stated therein that the wife is not at all interested in reconciliation and this application, according to him, was filed mala fide only to prolong the litigation. Thus, he prayed for the rejection of the said application.

The parties adduced evidence in support of their respective claims in the said proceeding. The lawyers' diary was proved in evidence which shows that the said suit was not entered in the lawyer's diary on last two occasions when the said suit was fixed for ex parte hearing. The lawyer's clerk was examined in the said proceeding. He stated in his evidence that he was not aware that the said suit was transferred to the Fast Track Court and as such, he could not update his diary by making entry of the dates fixed by the learned Transferee Court in respect of the said matrimonial suit. He further stated that for the aforesaid reason he could not take effective steps in the suit on last two dates.

Considering the facts and circumstances as aforesaid and the evidence of the parties, the learned Trial Judge held that the opposite party was prevented by sufficient reason from appearing before the Court on the date when the said suit was fixed for ex parte hearing. The learned Trial Judge observed that the lawyer's clerk was responsible for this unfortunate situation under which the said suit was decreed ex parte. The learned Trial Judge, thus, was pleased to set aside the said ex parte decree and restored the suit to its original file.

The propriety of the said order is under challenge under Article 227 of the Constitution of India at the instance of the petitioner/husband.

Heard Mr. Bidyut Kr. Banerjee, learned Senior Counsel appearing for the petitioner and Mr. Ayan Banerjee, learned Advocate appearing for the opposite party. Considered the materials on record including the impugned order.

Let me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts of the instant case.

On perusal of the materials on record including the pleadings and evidence of the parties, this Court does not find any perversity in the impugned order. The defendant engaged the lawyer to contest the said suit on her behalf. But if the suit is decreed ex parte due to negligence on the part of his lawyer and his clerk, she cannot be penalized for the default of her lawyer on whom she reposed full confidence for defending her said suit. Thus, when the learned Trial Judge set aside the ex parte decree under such circumstances, this Court sitting in this jurisdiction under Article 227 of the Constitution of India does not think it proper to interfere with the impugned order.

Of course, Mr. Bidyut Kr. Banerjee, learned Senior Counsel did not invite this Court to interfere with the impugned order on the ground of perversity therein. He challenged the impugned order on the ground of maintainability of the opposite party's application under Order 9 Rule 13 of the Code of Civil Procedure in the facts of the instant case. According to him a decree passed in a matrimonial suit under the Hindu Marriage Act, be it contested or ex parte, is appealable under Section 28(1) of the said Act and as such, the learned Trial Judge ought to have rejected the opposite party's said application for setting aside the said decree on the ground of its maintainability alone. In support of such submission he relied upon the following two decisions of different High Courts :

1. In the case of Tejbai Tejshi v. Smt. Gangubai Dinanath Ulvekar reported in 2002 Vol. 104(1) Bombay L.R 137.

2. In the case of Anjan Kumar Kataki… v. Smt. Minakshi Sarma…Opposite Party. reported in AIR 1985 Guahati 44.

On careful consideration of those two decisions, this Court finds that both the Hon'ble Bombay High Court and the Hon'ble Guahati High Court held that Order 9 Rule 13 cannot be applied for setting aside the ex parte decree under certain circumstances.

On perusal of the Bombay High Court's decision, this Court finds that Hon'ble Bombay High Court held that if a decree is passed by the learned Trial Judge by following the provision contained in Order 8 Rule 5 of the Code of Civil Procedure, provision contained in Order 9 Rule 13 cannot be invoked, for setting aside such decree as, according to the Bombay High Court, such decree passed under Order 8 Rule 5 of the Code of Civil Procedure cannot be regarded as an ex parte decree and as such, the said decree can be set aside under Order 9 Rule 13 of the Code of Civil Procedure.

This Court is of the view that the principle laid down in the said case has no application in the facts of the instant case as the decree for divorce was not passed under Order 8 Rule 5 of the Code of Civil Procedure in the instant case. Here in the instant case, the suit was fixed for ex parte hearing as the defendant neither filed any written statement in the said suit nor she took any step for participating in the trial of the said suit when the said suit was fixed for ex parte hearing. Under such circumstances, the plaintiff proved his claim in the said suit by ex parte evidence and the learned Trial Judge passed the ex parte decree by recording his satisfaction with regard to the evidence led by the plaintiff in the said suit.

Unlike in the Bombay case, it was not recorded in the divorce decree that the said decree was passed under Order 8 Rule 5 of the Code of Civil Procedure by the learned Trial Judge in the instant case. Thus, the principle laid down in the Bombay decision, in my view, has no application in the instant case.

Let me now consider the other decision cited by Mr. Banerjee, learned Senior Counsel as mentioned above. It is rightly pointed out by Mr. Banerjee that the facts of the case before the Hon'ble Guahati High Court was exactly the same as in the present case before this Court. There also an ex parte decree for divorce was passed on 31st March, 1977 by the learned District Judge at Dibrugarh and an application was filed for setting aside the said ex parte decree under Order 9 Rule 13 of the Code of Civil Procedure. The said application for setting aside the ex parte decree was allowed by the learned Trial Judge by overruling the objection regarding the maintainability of such an application raised by the plaintiff. But the Hon'ble High Court set aside the said decision of the learned Trial Judge by interpreting the provisions contained in Section 21 read with Section 28(1) of the Hindu Marriage Act. Hon'ble Guahati High Court ultimately came to a conclusion that Section 28(1) of the said Act being a mandatory provision, all decrees, be it contested or ex parte, are required to be challenged in appeal under Section 28(1) of the said Act and such mandatory provision of Section 28(1) of the Hindu Marriage Act cannot be regulated by Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree.

With due respect to His Lordship, this Court is unable to concur with the said views of His Lordship for the reasons hereinafter recorded.

Section 21 of the Hindu Marriage Act provides that subject to other provisions contained in this Act and to such Rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated as far as may be by the Code of Civil Procedure, 1908. The said provision makes it clear that the entire Code of Civil Procedure including the provision of Order IX of the Code of Civil Procedure is applicable to a Matrimonial Suit under Hindu Marriage Act. It is no doubt true that a decree, be it a contested one or ex parte, is appealable under Section 28(1) of the said Act, but the said provision does not provide that in case of an ex parte decree, a party aggrieved by the said decree cannot opt for setting aside the said decree under Order 9 Rule 13 of the Code of Civil Procedure. Though remedy for challenging such ex parte decree is available under the said Act by way of appeal, but such remedy by way of appeal is illusory, as the Appellate Court would have to go by records and to determine whether the appellant was prevented by sufficient cause from appearing before the Trial Court. Since the Appeal Court would have no material on record to render a decision on the sufficiency of the cause, the Appeal Court can give no relief to the appellant. On the contrary, if the reasons for such non-appearance can be explained before the Trial Court, the Trial Court can set aside the said decree under Order 9 Rule 13 of the Code of Civil Procedure to mitigate justice to a party who is affected by a decree due to no fault on his part. In this regard reliance can be placed on a Full Bench decision of this Hon'ble Court in the case of Smt. Bimala Debi v. Aghore Chandra Mallick reported in AIR 1975 Cal. 80 wherein it was held as follows :-

“15. The relevance of the observations of Mukherji, J. quoted above to the application under Order 21, Rule 90 has been dismissed for default and an appeal is preferred from the order of dismissal, the Appellate Court would have to go by the record as it stands and to determine upon the materials that are on record whether the appellant was prevented by sufficient cause from appearing before the Trial Court. It is obvious that the Appellate Court would have no material on record to render a decision on the sufficiency of the cause and can give no relief to the appellant.”

Thus, relying upon the said Full Bench decision of this Hon'ble Court, this Court has no hesitation to hold that Order 9 Rule 13 of the Code of Civil Procedure can be resorted to for setting aside the ex parte divorce decree even though such decree is appealable under Section 28(1) of the Hindu Marriage Act, as the said provision regarding appeal does not even by necessary implication excludes the application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree which is also a remedy available to the defendant for avoiding such decree.

Thus, this Court does not find any merit in this revisional application. The revisional application, thus, stands rejected.

Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.

JYOTIRMAY BHATTACHARYA, J.

Sujit Paul v. Mousomi Paul (Poddar)

Judgment Summary — Jyotirmay Bhattacharya, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner / Husband's Arguments

Opposite Party / Wife's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sujit Paul v. Mousomi Paul (Poddar)

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