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Madras High CourtCRP/1593/2021dismissed

R. Vijaya Rangan v. P. Uma Maheswari

2021-08-11Honourable Mr Justice G. Chandrasekharan3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11.08.2021

CORAM:

THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN C.R.P. No.1593 of 2021 and C.M.P.No.12408 of 2021 R.Vijaya Rangan

...Petitioner / Respondent / Petitioner

versus P.Uma Maheswari

...Respondent / Petitioner / Respondent

PRAYER: Civil Revision Petition has been filed under Article 227 of the Constitution of India, to set aside the docket order dated 18.02.2021 made in I.A.No.3 of 2020 in O.P.No.346 of 2017 passed by the learned V Additional Principal Judge, II Additional Family Court (FAC), Chennai and allow this Civil Revision Petition.

For Petitioner : Mr.M.R.Jothimanian

O R D E R

This Civil Revision Petition is filed to set aside the docket order dated 18.02.2021 made in I.A.No.3 of 2020 in O.P.No.346 of 2017 passed by the learned V Additional Principal Judge, II Additional Family Court (FAC), Chennai.

2. The learned counsel for the petitioner submitted that the respondent was set ex parte on 04.11.2020 in O.P.No.346 of 2017. This O.P. was filed by the petitioner under Section 13(1) (ia) read with Section 25 of the Hindu Marriage Act, 1955 seeking divorce from the respondent. Subsequently, the respondent filed the petition to set aside the said ex parte order passed on 04.11.2020 in I.A.No.3 of 2020. It is claimed that the respondent was working in a private software company, Chennai and her company has transferred the services to a client location in Germany. Therefore, she appointed her sister as power agent and in this regard, I.A.No.1 of 2019 was filed on 28.02.2019 and that, petition was dismissed for the reason that, the petition was not filed in the prescribed format. Again, the respondent filed the petition for appointment of power of attorney on 27.12.2019 in a prescribed format and it is not yet numbered. In the meanwhile, she was ordered to appear before the Court on 23.03.2020, by order dated 21.01.2020. During that

period, air traffic was suspended and therefore, she could not visit India. Her absence before the Court on 04.11.2020 was not intentional, wilful or deliberate but only due to the nonoperation of scheduled commercial flights from Germany to India, Therefore, she filed this petition.

3. The grievance of the learned counsel for the petitioner in this revision is that, after this petition was numbered, notice was ordered to the petitioner in I.A.No.3 of 2020, through Court and post and the respondent was also permitted to send private notice. Further, hearing was posted on 18.02.2021. Notice sent to the petitioner was returned as "unclaimed". This was held sufficient service and the petitioner was set ex parte and the petition was allowed.

4. The learned counsel for the petitioner submitted that the docket endorsement shows that the notice sent through Court and post were not returned either served or unserved. He disputed the endorsement made in the postal notice that, the notice was "unclaimed". Therefore, now, he prays the matter to be remitted back to the learned trial Judge to set aside the docket order dated 18.02.2021 made in I.A.No.3 of 2020 in O.P.No.346 of 2017 passed by the learned V Additional Principal Judge, II Additional Family Court (FAC), Chennai, for further consideration as to the service of notice.

5. The narration of the facts above shows that the respondent was not in a position to appear before the learned trial Judge on 04.11.2020 only because of the reason that, due to prevailing covid-19 pandemic situation, air traffic was suspended from Germany to India and hence, she was not able to appear before the Court. This reason, according to this Court, is just and reasonable, because even the Hon'ble Supreme Court suspended the period of limitation during the covid-19 situation and ordered extension of interim orders granted during that period.

6. Coming to the claim of the learned counsel for the petitioner that, setting aside the ex parte order passed by the learned V Additional Principal Judge, II Additional Family Court (FAC), Chennai, against the petitioner on 18.02.2021, this Court perused the postal cover filed in the typed set of papers. This endorsement shows that the notice was returned for the reason that, it was "unclaimed". The learned Judge found that this service is sufficient. Therefore, the petitioner was set ex parte. It is also seen that despite giving intimation the postal notice was not claimed. When there is material to show that the notice was returned "unclaimed", the Court can proceed to pass further orders. Therefore, this Court is of the considered view that the petitioner was rightly set ex parte and this Court finds no reason to interfere with the order of the learned V

Additional Principal Judge, II Additional Family Court (FAC), Chennai and the order is confirmed.

7. Accordingly, this Civil Revision Petition is dismissed. Consequently, connected Miscellaneous Petition is closed. However, there is no order as to costs. Sd/- Assistant Registrar (CS-III) // True Copy // Sub Assistant Registrar sri To The V Additional Principal Judge, II Additional Family Court (FAC), Chennai.

C.R.P. No.1593 of 2021 and C.M.P.No.12408 of 2021 AK(CO) RVM(03/09/2021)