Precaution to be taken by court while deciding suit exparte

It is not the law that if a defendant fails to appear in response to the notice of summons of the Court, a Court is bound to pass a decree at once or on the evidence adduced by the plaintiff. In an ex parte case also, a plaintiff has to prove his case by producing legal evidence for passing a decree as it is settled that a Court must act on admissible and legal evidence. While considering the evidence, the Court will not be bound to accept the statement of witnesses only because they have not been effectively cross-examined or evidence in rebuttal has not been adduced. A Judge is not a computer. In Civil cases, while assessing the value attached to oral evidence, a Judge has to test the evidence placed before him on the basis of probabilities. See, Chaturbhuj Pande v. Collector Raigarh (AIR 1969 SC 255 : 1969 All LJ 159; Modi P.R. v. Collector, Durg (1975 JLJ 595).1

Madhya Pradesh High Court

Smt. Laxmibai vs Keshrimal Jain on 7 September, 1994

Equivalent citations: AIR 1995 MP 178, 1995 (0) MPLJ 105

1. This is an appeal under Clause 10 of the Letters Patent by the appellant/defendant, the wife, against the judgment and decree dated 27-11-1984, passed by a learned single Judge of this Court in First Appeal No. 29 of 1984 (decision reported in AIR 1986 MP 138), preferred against ex parte judgment and decree for judicial separation passed under Section 13A of the Hindu Marriage Act, 1955, for short, the 'Act' by the District Judge, Gwalior, on 15-9-1981.

2. Material facts giving rise to this appeal are these. Respondent was married to appellant according to Hindu rites in November, 1978, at Morar, Gwalior. From the wedlock, a son Jitendra Kumar and a daughter, Kumari Chandni, aged 3 years and 1 year respectively, on the date of institution of the suit, were begotten to them. The respondent claimed dissolution of marriage by a decree of divorce under Section 13(1)(i-a) of treating the husband with cruelty as the appellant used to tease him by making allegations and aspersions against the husband of his illicit relationship with his sister-in-law (brother's wife). It is also averred that applicant used to make similar false allegations and used to apprehend that she will be killed by him. Husband alleged that conduct and behaviour of the wife was cruel since after the solemnization of the marriage; so much so that she left her matrimonial home in July, 1979 without any cause and thereafter, did not turn up.

3. A notice of the said petition was issued which was received unserved. Thereafter, fresh summons was sent by registered post without enclosing therewith a copy of the plaint, giving the first date of hearing as 21 -7-1981. The notice was received back with a Postal endorsement dated 20-5-1981, "Refused to take". On 21-7-1981, the Presiding Officer was on leave. Hence, the Reader of the Court fixed the next date as 10-8-1981 to place the case before the Presiding Officer. On 16-8-1981, the District Judge, after perusing the endorsement of refusal and considering the fact that the appellant/defendant did not appear on 21-7-1981 and after on 10-8-1981, ordered the case to proceed ex parte. On the next date of hearing, the respondent examined himself and gave a statement of nine lines, without stating any particulars of cruelty except that the appellant used to make a false aspersion of his illicit relationship with his brother's wife and, therefore, his mind used to remain disturbed. The respondent also stated that his wife has filed an application under Section 125 of the Code of Criminal Procedure. A certified copy of the orderdated 20-8-1981 (Ex. P/l), passed by the Additional Chief Judicial Magistrate, Gwalior, of these proceedings is on record wherein, in para 7, the defence of making aspersion of illicit relationship by the wife against the husband with his brother's wife and cruelty was not found proved. However, the application was dismissed as the learned Magistrate found that the wife with her children left her matrimonial home at her own accord. The District Judge, on appreciation of evidences, passed an ex parte decree under Section 13A of Judicial separation instead of decree for dissolution of marriage by a decree of divorce under Section 13(1)(ia) of the Act.

4. Having come to know that an ex parte decree of judicial separation has been passed the appellant/wife preferred an appeal. The learned single Judge, placing reliance on two Division Bench decisions of this Court in Ramlal Chaurasia v. Rewa Coal Fields Ltd. Calcutta (1986 MPLJ 507) and Gwalior Municipality v. Motilal (1977 MPLJ 562 : AIR 1977 MP 182), dismissed the appeal holding that when a party chooses to file an appeal against an ex parte decree, the decree can only be challenged on merits and it cannot be set aside on the ground that there was sufficient cause for his non-appearance. Hence, this appeal under Clause 10 of the Letters Patent.

5. Shri Ramji Sharma, learned counsel for the appellant and Shri N. K. Modi, learned counsel for the respondent, heard Record perused.

6. After hearing counsel on both sides and on going through the record, we are of the opinion that the ex parte decree for judicial separation passed under Section 13A of the Act cannot be sustained for reasons to follow.

7. True, when an appeal is filed against an ex parte decree under Section 96(2), CPC, that appeal cannot be converted into proceedings for setting aside the decree with the concomitant duty of affording the parties an opportunity of adducing evidence for and against any ground that may be raised in support thereof under Order IX, Rule 13, CPC. Nor can such an appeal be converted into an appeal under Order XLIII, Rule 1(d), CPC. However, such an appellant can show from the record as it stands that there is in the order proceeding ex parte against him, any error, defect or irregularity which has affected the decision of the case. If he succeeds in so doing, the ex parte decree will be set aside and the case will be remitted for retrial. On merits also, a party, through appeal, can demonstrate that evidence adduced by the plaintiff on which ex parte order has been passed is not sufficient to establish a prima facie case to pass a decree or even as the evidence prima facie is deficient for passing the decree. See, Ramlal Chaurasia's case as also Motilal's case (both supra).

8. In the case in hand, we find that there was no service of the summons. True, there is a presumption under Section 27 of the General Clauses Act, 1897, that when a document is sent under registered cover and on that, there is an endorsement of refusal by addressee to accept, the notice must be presumed to have been served and service shall be deemed to be a valid service unless it is rebutted by legal evidence. See, Jagdish Singh v. Natthu Singh (AIR 1992SC 1604 : 1992 All LJ 620 : 1992 AIR SCW 174. But, from the closed envelope which was opened in the presence of the parties, it is clear that no copy of petition/plaint was sent to the appellant along with the summons of the petition. Order V, Rule 2, CPC, in mandatory terms provides that every summons shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement. Therefore, the law is that along with the summons, a copy of the plaint should be served, as it is very much essential because the purpose of service of a copy of the plaint or, if so permitted, of a concise statement thereof, is to bring home to the defendant, the knowledge of a particular suit having been instituted against him so that the defendant may know that the claim brought about the plaintiff against him and make up the mind against the claim. This is the reason why the law-makers have made Rule 2 of Order V, CPC mandatory by use of the word "shall". Accordingly, if the summons are not accompanied by a copy of the plaint, it cannot be said that there is due or valid service on the defendant and if there is no valid service, a decree on such defendant has to be set aside. See, Chhutbai v. Madanlal (AIR 1989 MP 280), Laxminarayan S. Sharma v. Ramesh-war R. Khandaewal (AIR 1990 MP 155); Electric Construction and Equipment Co. Ltd. (M/s.) v. Permali Wallace Ltd., (1991 JLJ 45) Daulatram v. Ishwari Prasad (1992 (I) MPJR SN 88: 1993 (I) MPWN 7). Besides, after the receipt of the envelope with an endorsement purporting to have been made by a postal employee to the effect that the defendant has refused to take delivery of the postal article, when was tendered to the defendant, the Court, under Order V, Sub-rule (2) of Rule 19-A, CPC, did not declare that the summons had been duly served on the defendant, that infirmity is there on the face of the record. There is yet another reason to hold that the appellant/defendant was not duly served, in the summons, the. date of appearance was 21-7-1981, on that date, the Presiding Officer was on leave. Therefore, the next date fixed by the Reader of the Court, was not a date of hearing; hence, the Court ought to have issued a fresh notice to the defendant, but instead of that, the Court illegally proceeded ex parte on the assumption that the defendant was absent on 21-7-1981 and is also absent on the date fixed by the Reader. In such a situation, when a date given in the notice of summons is declared holiday or the Presiding Officer is on leave, unless another date is notified by issue of a fresh summons or by exhibiting a date on the Notice Board, a Court cannot proceed ex parte, till the next date is notified a defendant is not bound to attend and may wait for another notice. See, Raghurajsingh v. Kalyanaprasad (1964 JLJ SN 78) Kranti Kumar Jha v. Dr. J.B. Shrivastava (1978-1 MPWN 443); Mohanlal Brijlal v. Manga 1986 CCLJ N 39), Sushila Bai v. Ram Nihore (1991 MPLJ 229). Therefore, for the above reasons, the Court was having no jurisdiction to proceed ex parte; the error is apparent and the decree so passed is illegal and is liable to be set aside. Even for argument's sake the above grounds relate to invalid service making out a case amounting to sufficient cause, and ought to have been taken in a proceeding under O. IX, Rule 12, CPC, and could not be seen in an appeal under Section 28 of the Act. In that case too, it is not the law that if a defendant fails to appear in response to the notice of summons of the Court, a Court is bound to pass a decree at once or on the evidence adduced by the plaintiff. In an ex parte case also, a plaintiff has to prove his case by producing legal evidence for passing a decree as it is settled that a Court must act on admissible and legal evidence. While considering the evidence, the Court will not be bound to accept the statement of witnesses only because they have not been effectively cross-examined or evidence in rebuttal has not been adduced. A Judge is not a computer. In Civil cases, while assessing the value attached to oral evidence, a Judge has to test the evidence placed before him on the basis of probabilities. See, Chaturbhuj Pande v. Collector Raigarh (AIR 1969 SC 255 : 1969 All LJ 159; Modi P.R. v. Collector, Durg (1975 JLJ 595).

9. In the case in hand, the respondent/ plaintiff has examined himself only. His statement is casual, which is neither supported by circumstances or by any evidence, prima facie to hold that the appellant/wife treated the respondent/plaintiff with cruelty. Besides, cruelty was not found proved in proceedings under Section 195, Cr.P.C. Therefore, on merits, the decree passed by the District Judge and affirmed by the learned single Judge, cannot he affirmed.

10. There is yet another reason not to maintain the decree, as Section 23(2) of the Act casts a primary duty on the Court to ensure that the marriage tie is not broken and to make every effort in the first instance to bring about a reconciliation between the parties before proceeding to grant any relief under the Act. The law enjoins upon a Court to make sincere effort at reconciliation before proceeding to deal with the case in the usual course. Not making an effort under Section 23(2) is a legal infirmity. See, the decisions of this Court in Leela Pande v. Sachendra Kumar Pande (1994 (2) Vibha 10); Ram Kumar v. Kamla Dutta (AIR 1981 J & K 9); Neera v. Kishan Swamp (AIR 1975 All 337).

11. Shri Modi, learned counsel for the respondent, contended that there was no occasion to make any effort of reconciliation as the defendant was ex parte and the Court is competent to proceed in such cases without reconciliation. Reliance was placed, on a decision of Delhi High Court in case of Raj Paul Bhagria v. Surinder Kaur II ((1985) DMC 185). In the facts of this case, we are not inclined to accept the contention as the District Judge has not applied his mind and proceeded ex parte without verifying that the summon on the defendant were duly served or not.

12. As a result of the aforesaid discussion, the appeal is allowed. The ex parte judgment and decree under Section 13A are set aside. The case is sent back to the District Judge, Gwalior, for deciding it afresh in accordance with law. As the petition was filed as far back as in the year 1981, we direct the Court to decide the case expeditiously; as far as possible, within a period of four months. Parties shall appear in the Court below on 5th October, 1994. If the reconciliation is not made, the case shall proceed de die in diem. In the circumstances of the case, the parties shall bear their own costs.

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