K. Kannan, J.@mdashCounsel for the petitioner states that costs of Rs. 25,000/- were directed to be paid. A draft of Rs. 25,000/- is being tendered and the same is received by the respondent. The petition is filed by the husband challenging the order passed by the trial Court allowing the petition filed by wife to set aside the ex parte decree of divorce. The facts of the case bore out that the petition for divorce was filed on, 2.3.2007 but on summons being issued by the trial Court, the wife was had purported to have refused the service. The Court had ordered fresh notice to be issued through Court and by registered post but it appears that the Registry had issued a fresh notice for personal service and when the notice could not be served on account of the alleged closure of the wife''s residence affixure had been made on 24.07.2007. A proclamation said to have been issued by beat of drum was also said to have been effected. When the defendant did not appear she was set ex parte on 15.6.2007 and decree was passed against her. A petition to set aside the decree was filed by the wife claiming that she has not been served with summons at all and she had not known of the proceedings till recently when the husband had purported to have contracted another marriage. The petition was contested by the husband contending that after the period of appeal from the date of decree passed on 15.06.2007, he had contracted a second marriage on 29.3.2008 and he has also through the marriage a daughter born on 19.12.2008. The contention of the respondent further was that the wife had actually contacted the husband after knowing that he had married yet another woman in February, 2008 and sought for some compensation money. The amount could not be settled and now the petition had been filed falsely contending as that she was not served with notice and that she came to know about the decree only within a month prior to the date of her petition on 21.07.2008.
2. Before the trial Court evidence was lead and the husband sought to give evidence that the wife actually refused to receive the summons by examination on the bailiff The bailiff was put to searching cross-examination where he admitted that he had not himself known her previously and in the endorsement of refusal there had been no attestation from any third party about the identity of the party. He has also questioned about the location of the house and direction it faced, the name plate which hung outside the house, the breadth of the road where the house is situated etc. On each one of these aspects the bailiff was contradicted by the factual issues that he did not know the direction which the house faced correctly, the name plate outside the house was not in the manner that he gave evidence about. Even, on the issue of whether the Munadi had been effected there was a dispute and it was contended that it was not effected. Even the door No. of the house had not been specifically given in the Court summons or in the Munadi.
3. The Court had taken note of the fact that even the order passed by the Court when the summons were not issued on the wife had not been property complied with. The trial Court has extracted the order which it passed on 2.3.2007 that it had directed the notice to be issued after deposit of process fee and registered cover with acknowledgement to be sent within two days for 28.3.2007. The Court observed that neither the summons were sent through registered cover nor was even a registered cover with acknowledgement due furnished. On the other hand, the Court found fault with its own Registry that the Superintendent of the Office of District Judge had issued a personal service without reference to the order passed by the Court on 2.3.2007. The Court also made an issue of the fact that Door number for the house was spelt out even in the wedding card but in the summons the house number had not been specified. While the Court had adverted to the evidence of RW-6 Gurpreet Singh where he had admitted that no person had attested the summons for Munadi and while considering the evidence RW-5 Bharat Bhushan, father of husband, the Court even doubted whether his evidence could be correct since he had stated that Munadi had been effected in his presence. The doubt was on account of the fact that independent evidence ought to have been available at that time but no such person had attested the Munadi. Under such circumstances the Court observed that the correct address of the wife had not been deliberately given and it was intentionally concealed and the registered cover had not been issued in violation of the Court orders.
4. The learned counsel appearing on behalf of the petitioner strenuously contends that the finding regarding non-service by inadequate address could not be true since when on the very same address the wife had been served summons from the High Court. I find this argument to be fallacious. If the High Court had issued summons and it had been served, the same could not be presumed for lower court service even with inadequate address. That the address was inadequate with reference to non-supply of information about the Door Number itself is not denied. The contention however, is that with such insufficient address the High Court was able to serve summons and therefore the District Court must have also effectively caused the service of summons. I cannot make such a presumption in the manner argued by the learned counsel for the petitioner. Under the circumstances a factual rendering of a finding of non-service on the wife by the trial Court cannot be said to be erroneous that is susceptible for a challenge in revision. In the petition before the Court in revision a party cannot urge findings of facts rendered as erroneous unless shown to be perverse or without reference to the relevant materials. On the other hand, I find the trial Court has correctly considered the factual details and it has shifted the evidence of witnesses appropriately to come to the proper conclusion.
5. The counsel appearing for the petitioner has a second string to bow, as it were, that the husband has taken a second wife and when the third party interest intervened the petition for setting aside the ex-parte decree could not have been allowed. This argument is in my view, wrongly projected to make it appear as though that even if there is "sufficient cause" made by a party for setting aside the ex-parte decree, the Court would fetter its discretion by the only fact that yet another woman had come in the life of the husband and therefore the wife who was lawfully married to the husband should be defeated in her right to seek for an adjudication on merits. Such a contention is untenable and I would reject it. Learned counsel for the petitioner refers me to the decision of this Court in
6. In all situations where the petition is filed by the wife to set aside the ex-parte decree with sufficient grounds shown, the courts themselves approach the issue with certain sensitivity, for, with another woman coming in the way, there could be serious difficulty for harmonious living. In this case, I find an attempt has been made by my brother Judge to conciliate and to secure some financial compensation. I put it across to the wife''s counsel an offer of certain sum sought to be made by the husband to be considered. Learned counsel appearing on behalf of the respondent would have none of it acting on the instructions of the wife, who is present in Court. I would insulate myself from the circumstances when an offer of settlement that is rejected and will not take it as a cause for holding any view against the wife. If the wife would press for an adjudication on merits, it is left to the party to adopt such a course. The order passed by the trial Court is confirmed and the revision is dismissed.
