Milap Chandra, J.
1. This is a special appeal under Section 18, Rajasthan High Court Orninance, 1949 against the order of the learned Single Judge dated August 27, 1987 by which he dimissed the miscellaneous appeal filed by the appellant against the order of the learned District Judge, Jodhpur dated 23-11-1985 allowing the application of the respondent Chandrakala filed under O. 9, Rule 13, CPC for setting aside the ex-parte decree of divorce passed against her. The facts of the case giving rise to this special appeal may be summarised thus.
2. Appellant Banshidhar filed a petition under Section 13, Hindu Marriage Act for divorce against his wife Chandrakala. He obtained an ex-parte decree on 18-7-1981. On 16-11-1981, she filed an application under O. 9, Rule 13, CPC. It was dismissed by the learned District Judge. On appeal, this Court held that Chandrakala was not duly served with the notice and remanded the case for deciding whether the application filed under O. 9, Rule 13, CPC was within limitation or not, after necessary inquiry by its judgment dated 12 9-1983, reported in Chandrakala v. Banshidhar, 1983 (2) Divorce and Matrimonial Cases 422. After inquiry, the learned District Judge held the application of Chandrakala within limitation and set aside the ex-parte decree dated 18-7-1981 by his order dated 23-11-1985. Thereafter, the appellant filed S.B. Civil Miscellaneous Appeal No. 16/86. After hearing both the parties, the learned Single Judge dismissed it by his order dated August 27, 1987 which has been challenged in this Special Appeal.
3. It has been contended by the learned Counsel for the appellant that the provisions of O. 9, R. 13, CPC are not applicable in the proceedings under the Hindu Marriage Act, 1955. He relied upon Anjan Kumar Kataki v. Smt. Minakshi Sharma AIR 1985 Gauhati 74. There is no force in this contention. Similar objection was raised by him in the said previous Civil Miscellaneous Appeal decided on 19-9-1983 (Judgment reported in 1983 (2) Divorce and Matrimonial Cases 422) and it was repelled. Admittedly, no special appeal was filed against this judgment dated 12-9-1983 by the appellant Banshidhar. It is not denied that he could file an appeal against it. It may also be mentioned here that similar view has been taken in A.K. Pawar v. S. Laxmi A. Pawar 1986(1) D.M.C. 9 (Bombay), Jang Bahadur Syal v. Mukta Syal 1986 (1) D.M.C. 114 (Delhi), Veena Rani v. Dharam Paul 1986 (2) D.M.C. 23 (P and II), Daljit Kaur v. Tajendra Singh 1986 (2) D.M.C. 398 (M.P.), Dr. Mithilesh Kumar Srivastava v. Saroj Kumari Srivastava 1987 (1) D.M.C. 324 (Allahabad), Kailash Devi v. Priti Mandal and Anr. 1987 (1) D.M.C. 242 (Delhi) and Ravindra v. Smt. Pratibha 1987 (1) DMC 130 (MP).
4. It was next contended by the learned Counsel that the appellant has conracted second marriage with Smt. Maya on 29-10-1983 and a daughter has born on 5-8-1987, these subsequent events have not been taken into consideration by the learned Single Judge and there is no reference of an application under O. 9, R. 13, CPC in Section 15, Hindu Marriage Act. He relied upon Sribhagwan Srivastava v. Premlata : AIR1980All336 . There is no force in these contentions of the learnen counsel for the appellant. Admittedly, the respondent Chandrakala filed her application under O. 9, Rule 13, CPC on 16-11-1981, the Hon'ble High Court allowed it and remanded the case for further enquiry by its order dated 12-9-83, the appellant Banshidhar duly appeared before this Court and hotly contested her appeal. It is thus clear that the appellant contracted the second marriage fully knowing that the appellant Chandrakala is seriously opposing the ex-parte decree of divorce dated 18-7-1981. It has been observed in Chandra Mohini Srivastava v. Avinash Prasad, AIR 1967 SC 581 as follows:
It is true that Section 15 does not in terms apply to a case of an application for special leave to this Court. Even so, we are of opinion that the party who has won in the High Court and got a decree of dissolution of marriage cannot by marrying immediately after the High Court's decree and thus take away from the losing party the chance of presenting an application for special leave. Even though Section 15 may not apply in terms and it may not have been unlawful for the first respondent to have married immediately after the High Court's decree, for no appeal as of right lies from the decree of the High Court to this Court in this matter, we still think that it was for the first respondent to make sure whether an application for special leave had been filed in this Court and he could not by marrying immediately after the High Court's decree deprive the appellant of the chance to present a special leave petition to this Court. If a person does so, he takes a risk and cannot ask this Court to revoke the special leave on this ground. We need not consider the question as to whether the child born to the new wife on May 20, 1965 would be legitimate or not except to say that in such a situation Section 16 of the Act may come to the aid of the new child. We cantnot therefore, revoke the special leave on the grounds put forward on behalf of the first respondent and hereby dismiss his application for revocation of special leave.
5. The fact of Sribhagwan Srivastava v. Premlata, : AIR1980All336 , are quite different and distinguishable. This ruling does not go to help the appellant. In this reported case, the wife filed application for setting aside the ex-parte decree after over 34 months of passing of the ex-parte decree and also after the second marriage was solemnised. In the instant case, the respondent Chadrakala filed application for setting aside the ex-parte decree within four months of its passing and the appellant Banshidhar contracted the second marriage after about 2 years of the filing of her application fully knowing that she is seriously pursuing it and this Court has held that the notice of his divorce petition was not duly served upon her and the case has been remanded.
6. It was next contended by the learned Counsel for the appellant that the learned Single Judge has seriously erred to declare the second marriage contracted by the appellant as void. It is sufficient to mention here that no such order has been passed by the learned Single Judge. Be that as it may, such a marriage is not void but is voidable Reference of Smt. Leela Gupta v. Laxminarain, : [1978]3SCR922 may be made here.
7. It was next contended by the learned sounsel for the appellant that the learned Single Judge seriously erred in holding that the point regarding the service of notice could not be agitated before him as it has previously been decided. There is no force in this contention also. It is not denied that in the said previous miscellaneous appeal (1983) (2) DMC 422 this Court categorically held that Smt. Chandrakala was not duly served with the notice of the divorce petition. It has been held in G. Vijai Laxmi v. G. Ramchandra, : [1981]3SCR223 that the provisions of Section 11, CPC are applicable to proceedings under the Hindu Marriage Act, 1955. After the said earlier decision, this point cannot against be agitated.
8. It was next contended by the learned Counsel for the appellant that the respondant Chandrakala was having knowledge of the proceedings as her father used to enquire about the progress of the case from time to time. He placed reliance upon the affidavits of Manaklal Bora, Reader of the Additional Sessions Judge No. 2, Jodhpur and Shyamlal, Travelling Ticket Inspector, Northern Railway, Jodhpur. The learned Single Judge has rightly observed that their affidavits cannot be believed as the father of Chandrakala was an Advocate and it was not expected from him that he would have taken advice from a Reader of a Court or from a TTI of the Railway.
9. It was lastly contended by the learned Counsel for the appellant that the learned Single Judge seriously erred in not placing reliance upon the affidavits of the appellant and his witnesses to the effect that the respondent Chandrakala was knowing the proceeding of the case. There is no force in this contention of the learned Counsel for more than one reasons. Firstly, the period of limitation for filing an application to set aside an ex-parte decree is 30 days from the date of the knowledge of the decree and not of the proceeding vide Art. 123, Limitation Act. Secondly, the case of the respondent Chandrakala is that she came to know of the ex-parte decree on 18-10-83 when her witness Inder Kishan informed on that day that the appellant Banshidhar was going to contract second marriage and he had obtained ex-parte decree in his favour. Her father Jorawarmal Bora, her uncle Shiv Prakash and Inder Kishan have duly supported her in their affidavits. The appellant's witness Shridhar has denied in his affidavit that he told Inder Kishan about the marriage of his brother Banshidhar and the ex-parte decree Other things being equal greater weight is given on evidence of a witness who asserts in affirmative than that of a witness who denies such a fact. Thirdly, these facts were not asserted in his affidavits which were filed prior to the remand of the case by this Court.
10. In matrimonial cases, the parties should have an opportunity to contest it as its consequences are of far reaching effect. The very fact that the respondent Chandrakala is seriously contesting the proceedings emanating after the ex-parte decree and filed appeal in this Court leaves no doubt that she had no knowledge of the proceedings of the case and the ex-parte decree prior to 18-10-1981. Thus there is no force in the special.
11. In the result, the special appeal is summarily rejected appeal.