The High Court dismissed a civil revision petition filed against the setting aside of an ex parte divorce decree. The Court held that the setting aside was justified to afford the respondent an opportunity to contest the case on merits, confirming the lower court's order.
Civil Revision Petition dismissed; order of Senior Civil Judge confirmed.
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HON’BLE SRI JUSTICE R. KANTHA RAO
CIVIL REVISION PETITION No.1991 of 2011
Date: September 12, 2011
Between: M. Kondandaiah … Petitioner
And
**M. Gangamani … Respondent * * ***
HON’BLE SRI JUSTICE R. KANTHA RAO
CIVIL REVISION PETITION No.1991 of 2011
O R D E R:
This Civil Revision Petition is filed against the order dated 18.4.2011 passed by the Senior Civil Judge, Nizamabad, in I.A. No.1383 of 2009 in O.P. No.67 of 2008 setting aside the ex parte decree dated 05.6.2009 passed in O.P.No.67 of 2008.
2. I have heard the learned counsel appearing for the parties.
3. Initially, the revision petitioner filed O.P. No.43 of 2006 on the file of the Senior Civil Judge, Nizamabad, under Section 9 of the Hindu Marriage Act, 1955. The respondent-wife was set ex parte and thereafter a decree for restitution of conjugal rights was passed in O.P. No.43 of 2006. About one year after obtaining the decree of restitution of conjugal rights, the revision petitionerhusband filed O.P. No.67 of 2008 seeking divorce. In the said O.P. also the respondent-wife was set ex parte and thereafter an ex pare decree was passed granting divorce against her on 05.6.2009.
4. The respondent-wife filed I.A. No.1383 of 2009 in O.P. No.67 of 2008 seeking to set aside the ex parte decree dated 05.6.2009 granting divorce against her. The learned trial court, after making enquiry and on hearing both sides, set aside the ex parte decree passed in O.P. No.67 of 2008. The said order is assailed in the present revision petition.
5. It is the contention of the learned counsel appearing for the revision petitioner-husband that the revision petitioner-husband took notices to the address furnished by the respondent-wife in M.C. No.129 of 2008 filed by her and therefore there are no valid grounds to set aside the ex parte decree.
6. On the other hand, learned counsel appearing for the respondent-wife submits that some how the revision petitionerhusband got the notices returned in both the O.Ps., took substituted service and obtained ex parte decrees for restitution of conjugal rights and subsequently for divorce also and therefore the trial court, to afford an opportunity to the respondent-wife to contest the case on merits, set aside the ex parte decree. Therefore, there are no valid grounds to interfere with the order impugned.
7. Considering the finding of the trial court that the respondent-wife shall be afforded a sufficient opportunity to contest the case on merits in which event no prejudice would be caused to the revision petitioner-husband and also the fact that the ex parte decree was obtained after service of notice by substituted service, I am of the considered view that there is no error committed by the trial court in setting aside the ex parte decree
dated 05.6.2009. The order dated 18.4.2011 passed in I.A. No.1383 of 2009 in O.P. No.67 of 2008 on the file of the Senior Civil Judge, Nizamabad, therefore does not warrant any interference and the same is confirmed.
8. The Civil Revision Petition is accordingly dismissed. There shall be no order as to costs.
____________________ R. KANTHA RAO, J Date: September 12, 2011. BSB
1 issue framed by the court
Whether the trial court committed an error in setting aside the ex parte divorce decree and setting the matter to be contested on merits.
2 provisions across 1 enactments
M. Kondandaiah
M. Gangamani
R. Kant Rao
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
