HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1582/2017

Baldev Singh S/o Preetam Singh, By Caste Jat Sikh, Resident Of
Nava, Tehsil And District- Hanumangarh

—-Appellant
Versus
Preena @ Manjeet Kaur D/o Angrej Singh W/o Baldev Singh, By
Caste Jat Sikh, Resident Of Maan, Tehsil Malot, District-
Muktasar, Punjab.

—-Respondent

For Appellant(s) : Mr. B.S. Sandhu, Mr. M.S. Champawat
For Respondent(s) : Mr. Mohan Lal

HON’BLE THE CHIEF JUSTICE PRADEEP NANDRAJOG
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

05/03/2019

1. This civil misc. appeal under Section 19 of the Family

Courts Act, 1984 has been preferred claiming the following relief:

“It is therefore prayed that this appeal may
kindly be allowed and order dated 17.04.2017 passed
by the learned Family Court, L.D. Kiradu, RHJS,
District Sriganganagar in Civil Misc. Case No.67/2013
(Preena @ Manjeet Kaur V/s Baldev Singh) may kindly
be quashed and set aside. And application filed by the
respondent under Order 9 Rule 13 R/w Section 151
CPC may kindly be rejected.

Any other relief, direction that Hon’ble Court may
feel just and proper in facts and circumstances of the
case may kindly be issued in favour of the petitioner.”

2. The pleaded case of the appellant is that in a divorce

petition filed by him, notices were issued by the learned trial court
(2 of 5) [CMA-1582/2017]

on 07.07.1986, which were served, but the respondent did not

choose to appear before the learned trial court. Thereafter, the

learned trial court proceeded ex parte and passed judgment and

decree dated 09.07.1987 annulling the marriage between the

parties.

3. The respondent, in the year 2013, had moved an

application under Order 9 Rule 13 CPC before the learned court

below for setting aside the ex parte judgment and decree dated

09.07.1987, which was allowed by the learned court below vide

the impugned order dated 17.04.2017, while setting aside the said

ex parte judgment and decree dated 09.07.1987.

4. At the threshold, learned counsel for the appellant has

demonstrated from the impugned order dated 17.04.2017 that the

respondent had claimed knowledge of the judgment and decree

dated 09.07.1987 from 13.04.2009, so as to explain the delay in

filing the application filed under Order 9 Rule 13 CPC in the year

2013.

5. Learned counsel for the appellant has also shown the

judgment and decree dated 09.07.1987, in which the learned trial

court had recorded that despite service, no one appeared for the

respondent.

6. Learned counsel for the appellant has further taken us

to copy of the judgment dated 15.12.1988 passed by learned

Judicial Magistrate, Ist Class, Gidderbaha, whereby the application

preferred by the respondent under Section 125 Cr.P.C. seeking

maintenance has been decided. Learned counsel for the appellant

has referred to para 5 of the said judgment, which reads as

follows:

(3 of 5) [CMA-1582/2017]

“5. First of all, I will take up the case of applicant No.1
Prina. Case of the respondent is that the applicant left
her matrimonial house after 5-7 days, whereas
according to applicant, she was turned out by the
respondent after five months of marriage. Respondent
had moved application for divorce which was pleaded
in the reply. During the pendency of the application,
the petition was decided and exparte divorce was
granted in favour of the respondent. Copy of judgment
of District Judge, Sri Ganganagar is Ex.R2. Desertion
was the ground taken in the petition. Respondent
refused to appear in the court and as proceeded
against exparte by the District Judge, Sri Ganganagar.
Even after the written reply of respondent, application
did not take any step to get the ex-parte decree set
aside. In this way, judgment Ex.R2 has become final
between the parties. In the said judgment, ground of
respondent Baldev Singh that the application Prina had
deserted him was accepted. Finding of civil court are
binding between the parties. In this way, I hold that
the applicant Prina herself is not willing to go and
reside with the respondent and that she has deserted
the respondent. Respondent has reasonable cause not
to maintain the applicant Prina. Accordingly,
application qua Prina applicant stands dismissed.”

7. Learned counsel for the appellant submits that the

learned court below had recorded the fact of the ex parte divorce

being brought to its knowledge by the appellant and the order of

divorce was on record as Exhibit-R/2 in the application seeking

maintenance under Section 125 Cr.P.C. filed by the respondent.

8. Learned counsel for the appellant further submits that

the order was brought on record by the appellant, and that, the

respondent had complete knowledge of the ex parte judgment and

decree dated 09.07.1987.

(4 of 5) [CMA-1582/2017]

9. Learned counsel for the respondent however, is not in a

position to refute the position that since the application seeking

maintenance under Section 125 Cr.P.C. was filed by the

respondent, which was decided on 15.12.1988, therefore, it

cannot be possible that exhibit to the same being contested by the

parties, was not in the knowledge of the respondent.

10. After hearing learned counsel for the parties as well as

perusing the record of the case, we are of the opinion that the

very premise of the impugned order dated 17.04.2017 is lost, as

the said order presumes the date of knowledge of passing of the

judgment and decree dated 09.07.1987 to the respondent to be

13.04.2009, while deciding the issue of delay in favour of the

respondent.

11. It is a clear factum that the ex parte judgment and

decree was passed against the respondent by a competent court

on 09.07.1987, and in that order, we see that the learned trial

court has recorded that the respondent has refused to accept the

notice, and thus, virtually the service was complete.

12. This Court also finds that learned counsel for the

respondent has not been able to refute knowledge of divorce

decree as recorded in the order passed by the learned court below

while deciding the aforementioned application under Section 125

Cr.P.C. vide order dated 15.12.1988. The learned court below in

the application of the respondent has clearly recorded Ex.2, which

was ex parte judgment and decree granted in favour of the

appellant on 09.07.1987.

13. The knowledge of passing of the aforementioned

judgment and decree dated 09.07.1987 has been claimed only
(5 of 5) [CMA-1582/2017]

after 13.04.2009, which is a blatantly false averment on the face

of it.

14. Apparently, the respondent had the complete

knowledge of the judgment and decree dated 09.07.1987 as the

said ex parte judgment and decree dated 09.07.1987 was Exhibit-

R/2 in the pleadings, as the same was recorded by the learned

court below in the factual narration, which has been quoted

hereinabove.

15. We thus do not find any reason why the ex parte

judgment and decree dated 09.07.1987 could have been

interfered with at such belated stage. Therefore, looking into the

extreme delay, which has not been explained, rather has been

wrongly mentioned by the respondent, we find sufficient reason

that the judgment and decree dated 09.07.1987 ought not to be

interfered with vide the impugned order dated 17.04.2017, after

an inordinate and unexplained delay.

16. In light of the aforesaid observations, the present

appeal is allowed, and while affirming the judgment and decree

dated 09.07.1987 passed by the learned trial court, the order

dated 17.04.2017 passed by learned Judge, Family Court,

Sriganganagar in Civil Misc. Case No.67/2013 (Preena @ Manjeet

Kaur V/s Baldev Singh) is quashed and set aside. The application

moved by the respondent under Order 9 Rule 13 read with Section

151 CPC accordingly stands rejected.

(DR. PUSHPENDRA SINGH BHATI),J (PRADEEP NANDRAJOG),CJ.

40-SKant/-

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