MILAP CHANDRA, J. - (1.) THIS is a special appeal under Sec. 18, Rajasthan High Court Ordinance, 1949 against the order of the learned Single Judge dated August 27, 1987 by which he dismissed the miscellaneous appeal filed by the appellant against the order of the learned District Judge, Jodhpur dated 23. 11. 85 allowing the application of the respondent Chandra kala filed under (X 9, r. 13, C. P. C. 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 Sec. 13, Hindu Marriage Act for divorce against his wife Chandra kala. He obtained an ex-parte decree on 18. 7. 81. On 16. 11. 81, she filed an application under O. 9, r. 13, C. P. C. 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, r. 13, C. P. C. was within limitation or not, after necessary inquiry by its judgment dated 12. 9. 83, reported in Chandrakala v. Banshidhar, 1983 (2) Divorce & 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. 81 by his order dated 23. 11. 85. 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. It has been contended by the learned counsel for the appellant that the provisions of O. 9, r. 13, C. P. C. are not applicable in the proceedings under the Hindu Marriage Act, 1955. He relied upon Anjan Kumar Kataki vs. Smt. Minak-shi Sharma (1 ). There is no force in this contention. Similar objection was raised by him in the said previous Civil Miscellaneous Appeal decided on 12. 9. 83 (Judgment reported in 1983 (2) Divorce & Matrimonial Cases 422) and it was repelled. Admittedly, no special appeal was filed against this judgment dated 12. 9. 83 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 (2), Jang Bahadur Syal v. Mukta Syal (3), Veena Rani v. Dharam Paul (4), Daljit Kaur v. Tajendra Singh (5), Dr. Mithilesh Kumar Srivastava v. Saroj Kumari Srivastava (6), Kailash Devi v. Priti Mandal (7) and Ravindra v. Smt. Pratibha. (8 ). It was next contended by the learned counsel that the appellant has connected second marriage with Smt. Maya on 29. 10. 83 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, C. P. C. in Section 15, Hindu Marriage Act. He relied upon Sribhagwan Srivastava v. Premlata (9 ). There is no force in these contentions of the learned counsel for the appellant. Admittedly, the respondent Chandrakala filed her application under O. 9 r. 13, C. P. C. on 16. 11. 81, 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 Chandra kala is seriously opposing the ex-parte decree of divorce dated 18. 7. 81. It has been observed in Chandra Mohini Srivastava v. Avinash Prasad, (10) as follows:- "it is true that S. 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 parly 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 S. 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 S. 16 of the Act may come to the aid of the new child. We cannot, 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. " The facts of Sribhagwan Srivastava v. Premlata, (Supra) 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 solemnized. In the instant case, the respondent Chandra kala 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. 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, (11) may be made here.
(3.) IT was next contended by the learned counsel 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. Chandra Kala was not duly served with the notice of the divorce petition. IT has been held in G. Vijaylaxmi v. G. Ramchandran, (12) that the provisions of Sec. 11, C. P. C. are applicable to proceedings under the Hindu Marriage Act, 1955. After the said earlier decision, this point cannot again be agitated. It was next contended by the learned counsel for the appellant that the respondent 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 Manak Lal Bora, Reader of the Additional Sessions Judge No. 2, Jodhpur and Shyam Lal, 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 T. T. I, of the Railway. 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 proceedings 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 proceedings 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. 81 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 Indar 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. ;