JUDGEMENT
B.S. Chauhan, J. -
(1.)Leave granted.
(2.)This appeal has been preferred against the judgment and order dated 17.7.2007, passed by the High Court of Delhi at New Delhi, in FAO No.63 of 2002, by which the High Court has allowed the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 (hereinafter called CPC), reversing the judgment and order dated 11.12.2001, passed by the Additional District Judge, Delhi.
(3.)FACTS:
(A) Appellant got married to the Respondent/wife on 9.12.1986 and out of the said wed lock, a girl was born. The relationship between the parties did not remain cordial. There was acrimony in the marriage on account of various reasons. Thus, the appellant/husband filed a case for divorce on 27.4.1989, under section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955, against the Respondent/wife.
(B) Respondent/wife refused to receive the notice of the petition sent to her by the Court on 4.5.1989 vide registered AD cover for the date of hearing on 6.7.1989. Respondent/wife on 28.6.1989 was present at her house when the process server showed the summons to her. She read the same and refused to accept it. Refusal was reported by the process server, which was proved as Ex.OPW1/B.
(C) Again on 7.8.1989, she refused to accept the notice for 8.9.1989, sent by the Court through process server. The Court ordered issuance of fresh notices. One was issued vide ordinary process and the other vide Registered AD cover for 8.9.1989. Registered AD was returned to the Court with report of refusal, as she declined to receive the AD notice. Under the Courts orders, summons were affixed at the house of the Respondent/wife, but she chose not to appear.
(D) She was served through public notice on 6.11.1989 published in the newspaper National Herald which was sent to her address, 3/47, First Floor, Geeta Colony, Delhi. This was placed on record and was not rebutted by the Respondent/wife in any manner.
(E) After service vide publication dated 8.11.1989 as well as by affixation, Respondent/wife was proceeded ex- parte in the divorce proceedings. Ex-parte judgment was passed by Addl. District Judge, Delhi on 28.11.1989 in favour of the appellant/husband and the marriage between the parties was dissolved.
(F) Two years after the passing of the decree of divorce, on 16.10.1991, the Appellant got married and has two sons aged 17 and 18 years respectively from the said marriage.
(G) The Respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce dated 28.11.1989, moved an application dated 17.12.1993 for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the Appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance under Section 125 of the Code of Criminal Procedure, 1973 (hereinafter called Code of Criminal Procedure). The said application under Order IX, Rule 13 Code of Civil Procedure was also accompanied by an application under Section 5 of the Indian Limitation Act, 1963, for condonation of delay.
(H) The trial Court examined the issues involved in the application at length and came to the conclusion that Respondent/wife miserably failed to establish the grounds taken by her in the application to set aside the ex-parte decree and dismissed the same vide order dated 11.12.2001.
(I) Being aggrieved, Respondent/wife preferred First Appeal No.63 of 2002 before the Delhi High Court which has been allowed vide judgment and order impugned herein. Hence, this appeal.
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