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Biswadeep Gupta vs Sulata Gupta on 12 June, 2019

IN THE HIGH COURT AT CALCUTTA

Civil Revisional Jurisdiction

APPELLATE SIDE

Before:-

THE HON’BLE JUSTICE RAJASEKHAR MANTHA

C.O. No.2880 of 2018

BISWADEEP GUPTA

VERSUS

SULATA GUPTA

For the Petitioner : Mr. Surojit Nath Mitra, Sr. Advocate.
Mr. Purnasish Gupta, Advocate.
Mr. Jayanta Kumar Mukhopadhyay,
Advocate.
Ms. Mary Dutta, Advocate.
For the Opposite : Mr. Probal Mukherjee, Sr. Advocate.
Party Mr. Ananya Neogi, Advocate.

Hearing Concluded on : 10.06.2019

Judgment On : 12.06.2019

Rajasekhar Mantha, J.:-

1.

The instant Revisional application is directed against judgment and

order dated 13th April, 2018 passed by the Learned Additional District

Judge, Fast Track Court-I, Howrah, in Miscellaneous Case No.16 of

2016 arising out of Matrimonial Suit No. 802 of 2015.
2

2. By the impugned order an exparte decree dated 8th December, 2015

was set aside under Order 9 Rule 13 of the Code of Civil Procedure

1908, read with Section 5 of the Limitation Act.

3. The facts relating to the case are inter alia that on 26th February,

1997 a marriage was solemnized according to Hindu rites and

Customs between the Revisionist, husband and the Opposite Party,

wife.

4. The parties initially lived at New Delhi and thereafter lived in Howrah

from the year 2000. Prior thereto on the 25th of November, 1997 a

male child was born out of the wedlock.

5. Disputes and differences arose between the parties and on 20th April,

2009 the Opposite Party left the matrimonial house alongwith their

minor son to stay at Lucknow with her mother and two brothers.

6. On the 4th January, 2010 the Revisionist went to Lucknow to bring

the O.P. back the OP and the minor son but was unable to do so as he

was not allowed to enter into the house of the opposite party.

7. The Revisionist thereafter filed Matrimonial Suit being MAT Suit No.

13 of 2010 in the Court of Learned District Judge, Howrah under

Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal

rights alongwith an application for custody of his minor son under

Section 25 of the Guardians and SectionWards Act, 1925.

8. The O.P. wife thereafter filed two applications before the Hon’ble

Supreme Court being T.P. Nos. 382 and 383 of 2010, under Section
3

24 of the Civil Procedure Code, for transfer of the aforesaid two

proceedings from Howrah to Lucknow.

9. The Hon’ble Supreme Court of India referred the parties to mediation.

In course of mediation the Opposite Party declared on the 18th July,

2011 that she would never go back to her matrimonial house with the

Revisionist. Failure of mediation accordingly was recorded.

10. As a consequence whereof the Revisionist on 17th October, 2011

informed the Hon’ble Supreme Court that he does not wish to proceed

with the suit for restitution of conjugal rights and custody any further

and two suits were dismissed by the Hon’ble Supreme Court.

11. The Revisionist thereafter instituted MAT Suit No. 802 of 2015 on the

27th August, 2015, seeking divorce on the ground of cruelty under

Section 13 of the Hindu Marriage Act, 1955. On the said date the

District Judge at Howrah fixed the 26th November, 2015 for service

return and acknowledgement and final of postal receipts.

12. After receipt of summons in MAT Suit 802 of 2015, on14th September

2015, the Opposite Party filed Transfer Petition (Civil) No.189 of 2015

before the Hon’ble Supreme Court of India on 18th November, 2015

seeking transfer of Matrimonial Suit No. 802 of 2015 from Howrah to

Lucknow. The said Transfer Petition was dismissed on 14thDecember,

2015 by the Hon’ble Supreme Court finding no grounds. The Transfer

Petition was admittedly neither served on the Revisionist nor notified

to the Court below.

4

13. The Opposite Party did not choose to enter appearance in the suit

either prior to or after dismissal of the said Transfer Petition. The

Opposite Party has stated in her application in the Court below that

she did not enter appearance because she was assured success in the

Supreme Court in the Transfer Petition. She also stated that she could

not come to Howrah to contest the suit due to ill the health of her

mother and her pre-occupation with her son who was sitting for the

final ISC Examination and that was fixed on February-March, 2016.

She also stated that she had no means to support litigation at

Howrah.

14. In the meantime, MAT Suit No.802 of 2015 was taken up by the Court

below which, upon being satisfied with service, heard and decreed the

suit ex-parte on the 8th of December 2015.

15. The Opposite Party after dismissal of the transfer petition is stated to

have contacted her present lawyers at Howrah. She stated that she

came to know on 25th January, 2016 for the first time that the suit

was decreed ex-parte on 8th December, 2015. The Opposite Party,

however, did not indicate as to when exactly she contacted her lawyers

at Howrah why she did not take steps in the suit since 14th

September, 2015.

16. Having come to know of the exparte decree the Revisionist is stated to

have instructed her lawyer at Howrah to prepare necessary application

praying for the ex-parte decree to be set aside. It is assumed the said

instructions were issued on the 25th January, 2016. There is no
5

explanation however as to what the Opposite party was doing from

14th December, 2015 after Transfer Petition No.189 of 2015 was

dismissed by the Hon’ble Supreme Court till 25th January, 2016.

17. The application for setting aside the exparte decree is stated to have

been received by the Opposite Party from her lawyers at Howrah on

the Email address of her brother on 7th February, 2016. The Opposite

Party took 17 days to finalise and affirm the said application under

Order 9 Rule 13 and despatched the same on 24th February, 2016 to

her lawyer at Howrah.

18. It however appears from the verification portion of the application that

the same was affirmed before a notary public at Lucknow on the 10th

February, 2016. There is no explanation as to why the Revisionist

waited until the 24th February, 2016 to despatch the same from

Lucknow to Howrah. The said application under Order 9 Rule 13 by

the Opposite Party was actually filed on 25th February, 2016 in the

Court below.

19. Alongwith the applicaton under Order 9 Rule 13 the Opposite Party

also filed an application under Section 5 of the Limitation Act.

20. After expiry of statutory period of waiting from the decree the

Revisionist on the 10th March, 2016 contracted a second marriage.

21. The Examination-in-Chief by way of affidavit was filed by the O.P.

Under Section 5 of the Limitation Act and she was cross-examined on

4th May, 2018 i.e. the same day on which the affidavit in chief was
6

field. The Revisionist also filed evidence in chief both to the

application under Section 5 of the Limitation Act and Order 9 Rule 13.

22. The Revisionist was also examined and cross examined on the same

day i.e. 4th May 2018. The Court below took up the application under

Section 5 of the Limitation Act alongwith the application under Order

9 Rule 13 and allowed the same vide the impugned order.

23. Extensive arguments has been made by the Revisionist as well as the

Opposite Party in respect of the impugned order. The Revisionist

would rely upon a judgment of a Co-ordinate Bench of this Court in

the case of SectionJahar Dey vs. Smt. Brojeshwari Saha, reported in AIR

2000 Cal 280, arguing that the application under Section 5 could not

have been heard alongwith the Application under Order 9 Rule 13 and

that too without separate Evidence being led.

24. The Revisionist would also rely upon a Division Bench Judgment of

this Court in the case of Jharna Rani Ghosh Vs. Prabir Kumar

Ghosh, reported in (2015) 2 CHN (Cal) 15, in similar facts a Division

Bench of this Court refused to set aside the ex-parte decree.

25. The Opposite party would rely upon the judgment of the Hon’ble

Supreme Court in the case of Parimal Vs. Veena @ Bharati,

reported in (2011) 3 SCC 545 and the case of G. P. Shrivastava Vs.

R. K. Raizada, reported in (2000) 3 SCC 54 on the princples to be

applied under Or 9 Rule 13 of the Code.

7

26. The first argument of the revisionist is centered around the Jahar Dey

(supra) decision of this Court. The revisionist would argue that

evidence in chief of the Opposite Party in the Court below was filed

specifically under the application for condonation of delay under

Section 5 of the Limitation Act. The Court below, according to the

Revisionist, therefore, could not have decided the Order 9 Rule 13 of

the CPC while deciding an application under Section 5 of the

Limitation Act and that too without any specific evidence being led on

the Order 9, Rule 13.

27. This Court notes the said argument as also the decision of a Single

Bench of this Court in the case of Jahar De (supra). It is true that the

evidence in chief filed by the Opposite Party was under Section 5 of

the Limitation Act and there was no mention that the same would also

be considered as common evidence for the application under Order 9

Rule 13 of the CPC, 1908. However, this Court notes that the

evidence in chief filed by the Revisionist in the Court below was both

under Section 5 as well as Order 9 Rule 13.

28. It is obvious that unless the application under Section 5 is decided

the need for decision on the application under Order 9 Rule 13 would

not arise. Considering the Jahar De (Supra) decision this Court holds

that it would depend on the facts and circumstances of each case as

to whether the two applications should be heard and disposed of by a

single order or by separate orders.

8

29. On the question as to whether the delay ought to have been condoned

and as to whether the exparte decree ought to have been recalled i.e.

whether the Opposite Party has been able to demonstrate sufficient

cause for not filing the application under Order 9 Rule 13 within time

and for being prevented from causing appearance in the Court below,

the impugned judgment however needs to be examined.

30. The expression ‘sufficient cause’ is used both in Section 5 of the

Limitation Act, 1963 as also under Order 9 Rule 13 but for different

purposes. Under Order 9 Rule 13 the language is “sufficient cause for

failure to appear when the suit was called on for hearing” and under

Section 5 of the Limitation Act the words are “sufficient cause for not

preferring the appeal or making the application within the time

prescribed”.

31. While assessing sufficient cause under Order 9 Rule 13 a defaulting

party’s subsequent diligence may in some cases be relevant to

ascertain the urgency with which he had approached the Court in

question. However the test of sufficiency of the cause which prevented

the litigant concerned from appearing before the Court despite

knowledge of the proceeding is however much more stringent.

32. Even while considering an application under Section 5, in a given

situation a Court may take a liberal approach but the requirement of

the demonstrating sufficient cause under Order 9 Rule 13 is stricter

and more intense than the approach to condonation of delay under
9

Section 5 of the Limitation Act. It would depend on the facts and

circumstances of each case and period of delay involved.

33. The stringency to be applied must essentially be viewed in the context

of rights accruing to the diligent opponent. Civil and commercial

rights which have accrued to a opponent can in most cases be

remedied and compensated monetarily. However, the matter assumes

a completely different perspective when the diligent party alters his

position irreversibly in a non-commercial context. While the

alternation of position by the diligent party per se cannot be the sole

consideration for the stringency of the test of sufficient cause, it would

be a vital consideration depending on the nature of the litigation

between the parties and the facts of such case.

34. In the instant case it is evident that the relations between the parties

and the Opposite Party had irretrievably broken down since the

Opposite Party wife stated before the Hon’ble Supreme Court that she

was not interested in living with the revisionist anymore. As a

consequence whereof the application under Section 9 of the Hindu

Marriage Act, 1955 was withdrawn by the revisionist and dismissed by

the Hon’ble Supreme Court.

35. The revisionist filed the instant suit under Section 13(1) of the 1955

Act, seeking divorce on the27th of August 2015 summons whereof

were duly received by the Opposite Party on 12th September 2015.

The OP thus had full and complete knowledge of the institution

pendency of the suit and the date on which it was due to be listed to
10

receive pleadings from her side. She chose to move of an application

before the Hon’ble Supreme Court of India under Section 25 of the

CPC, for transfer of the said suit from Howrah to Lucknow without

causing appearance in the suit. She, therefore, wilfully and

consciously allowed the suit to proceed unrepresented and exparte on

a date which she knew she had to be represented before the District

Court at Howrah. She neither notified the Revisionist nor the Court

below of the filing of such Transfer Petition before the Hon’ble

Supreme Court.

36. She had the means to approach the Hon’ble Supreme Court of India at

New Delhi from Lucknow but states that she had no means to cause

appearance either by herself or through an advocate at Howrah where

and when the suit was posted. The absence of means therefore

cannot be accepted as sufficient cause for being prevented from

causing appearance in the suit.

37. The other grounds urged were the ailment of the mother and the Class

XII examinations of her son, do not inspire confidence with this Court

as the same did not prevent her from approaching the Hon’ble

Supreme Court at New Delhi. It could be said in more ways than one

that New Delhi and Howrah are equidistant from Lucknow. This

Court, therefore, is not satisfied that the Opposite Party had sufficient

cause to prevent her from appearing on the date which she admittedly

knew, when the suit was posted for hearing.

11

38. This Court is conscious of the fact that there is an element of

discretion under Order 9 Rule 13 of the Code, albeit lesser than under

Section 5 of the Limitation Act. It is equally true that the parameters

of sufficient cause under Order 9 Rule 13 must be suitably, properly

and effectively applied by a Court while exercise of such discretion. In

the instant as would be also seen from the subsequent paragraphs

herein, the Opposite Party at material times was negligent and

wilfully allowed the suit to proceed exparte by not causing appearance

in the Court below.

39. The explanation for delay in filing the application under Order 9 Rule

13 equally has a large number of loopholes. The proceeding before the

Hon’ble Supreme Court was dismissed on 14th December 2015.

Notice of the transfer petition was neither given to the Court below nor

to the Revisionist. Hence the Court below cannot be faulted for taking

the view that the Opposite Party despite having been served with the

summons may not have been interested in contesting the proceeding

for divorce.

40. Even after dismissal of the transfer petition before the Hon’ble

Supreme Court on 14-12-2015 the revisionist allowed time to while

away and casually mentions that she contacted her lawyers thereafter

and came to know only on 26th January 2016 that the suit was

decreed exparte. The OP is slient on when exactly she contacted her

lawyers after 14th December 2015 and what compelled her to wait

until the second half of January to contact her lawyers at Howrah.
12

41. The date of affirmation of the application under Order 9 Rule 13

before the notary public at Lucknow has somehow evaded both the

parties. The application was affirmed on the 10th January, 2016,

before a Notary Public at Lucknow and for some unexplained reasons

the opposite party waited for 14 days to despatch the same from

Lucknow to Kolkata. Even after filing of the application under Order 9

Rule 13 it is not clear, since the OP has not indicated when the

application was served on the revisionist.

42. While third party rights have accrued lawfully, it can also undoubtedly

inferred that of the opposite party allowed rights in favour of the

Revisionist and the third party (2nd Wife) by reason of her casual

attitude, wilful delay and negligence.

43. While dealing with an application under Order 9 Rule 13 only the

conduct of the OP upto the decree must be taken into consideration,

except as indicated hereinabove. The Court below committed grave

error in addressing facts and events in Court proceedings after the

date on which the suit was set exparte, heard and decreed while

dealing with the Order 9 Rule 13 application.

44. As already stated hereinabove and at the risk of repetition, for

addressing sufficiency cause under Order 9 Rule 13 a Court is

required to restrict itself to factors that prevented the Opposite Party

from appearing on the date when the suit was either set exparte or

heard exparte or both. There is deemed knowledge on the part of a

litigant who received summons and hence on sufficient notice of all
13

proceedings and dates in the suit. The expedition or otherwise with

which the suit proceeded after it was set exparte or on the date that it

was set exparte is totally irrelevant to the sufficiency of cause

required to be shown by the Opposite Party under Order 9 Rule 13 of

the Code.

45. This Court has noted paragraphs 8-13 of the Parimal decision

(supra) as also paragraph 7 and 8 of the G.P. Srivastava decision

(supra). The view taken by this Court in the facts of the instant case

is with harmony with a dicta of the Hon’ble Supreme Court in the

aforesaid two cases. In fact even in the Parimal decision the Court

was satisfied that the Opposite Party wife was not able to demonstrate

sufficient cause to say that she was prevented from appearing before

the Court on the date when matrimonial suit was heard, exparte and

disposed of granting a decree for divorce as prayed for by the

husband.

46. In the facts of the case as discussed hereinabove, this Court does not

find the OP has been able to demonstrate sufficient cause either

under Section 5 of the Limitation Act 1963, much less under Or 9

Rule 13 of the CPC. The impugned order is not sustainable.

47. This Court had requested the parties to settle on the amount of

payment to be made to the Opposite Party towards permanent

alimony and costs of litigation. A sum of Rs. 10 lakhs was proposed

by the Court as lumpsum payment which was declined by the

opposite party wife. It is, therefore, ordered that a sum of Rs.15,000/-
14

be paid as litigation costs to the Opposite Party wife by revisionist.

The Opposite Party wife shall at liberty to approach the appropriate

forum towards her claim for permanent alimony and maintenance on

account of herself as well as her son, in accordance with law.

48. In view of the aforesaid the impugned judgment and order dated 13th

July 2018, passed by the Additional District Judge, Fast Track Court-

1 at Howrah, in Misc Case No.16 of 2016 arising out of MAT Suit

No.802 of 2015 is hereby set aside and the decree for divorce dated 8th

December 2015 and order dated 15th December 2015 is hereby

restored and confirmed. The applications under Order 9 Rule 13 Code

of Civil Procedure1908 and under Section 5 of the Limitation Act 1963

made by the Opposite Party shall stand dismissed.

49. No order as to costs.

50. Urgent Photostat certified server copy of this order, if applied for, be

given to the parties upon compliance of all formalities.

(Rajasekhar Mantha, J.)

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