Full Judgment
1. Petitioner herein filed O.P.No. 1367 of 1995, on the file of Family Court at Chennai, for getting divorce.
2. An order was passed granting divorce as per Order dated 26.3.1996. Long thereafter, i.e., on 4.9.1996, the wife filed I.A. 744 of 1996 for condonation of delay in filing an application to set aside the decree of divorce. In the affidavit filed in support of I.A.744 of 1996, she alleged that no notice or summons by any means was served on her in respect of the case, nor on any of her family members. According to her, she came to know about the case only on 29.6.1996 only through her husband's relative (see para 7 of the affidavit).
3. The same was seriously opposed by the petitioner who also filed his counter. Finally, when the matter came for enquiry on 10.6.1998, petitionerherein was not present, and the Family Court passed an order condoning the delay. The same is challenged in this Revision under Art.227 of theConstitution of India.
4. At the time when the matter came for admission. I directed the Registry to call for the entire records connected with the O.P., both before thepassing of the ex parte decree and after the decree was passed. Accordingly, they were called for and produced before me for perusal.
5. Respondent also entered appearance, and I heard learned Counsel on both sides.
6. I find that summons was taken by petitioner herein to the respondent (wife) to her Nagpur address before the exparte decree was passed and the same was returned. Subsequently, it was taken to her Hyderabad address, and the signed postal acknowledgment is in file. Even though respondent (wife) contends that she has not been served with any summons, in view of the signed postal acknowledgment, the presumption is against the respondent. When the summons have been purported to have been signed by respondent, unless evidence is let in that it has not been tendered to her, law presumes that there is due service.
7. After the case was posted for appearance, even though the respondent was declared ex parte, the Family Court did not decide the case immediately. The matter was adjourned on two occasions, and on the third adjournment petitioner herein was examined in detail, and he has given a version of his case. In this connection, it may also be noted that even though the petitioner wanted divorce on the ground of cruelty and also on the ground that she is living in adultery, relief was given on the basis of evidence in only regarding cruelty. Various instances of cruelty have been stated in the evidence. Thereafter the Family Court, believing the evidence, passed the decree for divorce.
8. After alleging that she came to know about the decree on a subsequent date, she filed the present application for condonation of delay. Even though the petitioner filed his counter, only because of his absence, the Family Court allowed the application. The Family Court has also not given any reason for allowing it except to state that the petitioner was absent, and hence the petition is allowed. It is only an one word order passed by the Family Court.
9. I do not think that the Family Court exercised its discretion properly. I have already said that in paragraph 7 of the affidavit, it is said that she came to know about the case only on 29.6.1996, though in another portion of the affidavit, she has averred that she came to know about the case on 29.8.1996. The affidavit filed in support of the application for condonation of delay was filed in Court only on 4.9.1996. If we take 29.6.1996 as the date of knowledge, the application itself was belated. Again, the signed postal acknowledgment also shows that she had knowledge about the proceedings even before the decree. Therefore, it is for her to substantiate that she was not served with notice and the signature appearing in the signed acknowledgment is not hersignature. No attempt was made by her to rebut that presumption. Without considering all these facts, the Family Court has merely allowed the application on the ground that the respondent therein was absent.
10. In a very recent judgment, namely, in P.K. Ramachandran v. State of Kerala and another, : 1997ECR785(SC) , Their Lordships have held thus:-
'Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High court was, thus, neither proper nor judicious. The Order condoning the delay cannot be sustained...'
Under Section 5 of the Limitation Act compels sufficient cause has to be shown. Absence of opposite party cannot be a sufficient cause for condonation of delay on the part of the petitioner. The Family Court has not applied its mind while passing the impugned Order.
11. In the result, I set aside the impugned Order passed by the Family Court and allow the Civil Revision Petition. No costs. Connected C.M.P. is closed.