Memorandum on behalf of the Respondent

In the Honourable

SUPREME COURT OF INDIA

In the matter of

Smt. Yallawwa

(Appellant)

v.

Smt. Shantavva

(Respondent)

Counsel on behalf of Respondent

Semester II, Section B

Roll No. 180

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 Memorandum on behalf of the Respondent

TABLE OF CONTENTS

1. List of Abbreviation----------------------------------------------------- 3

2. List of Cases-------------------------------------------------------------- 4

3. Statements of facts--------------------------------------------------------5

4. Questions Presented----------------------------------------------------- 6

5. Summary of Pleadings-------------------------------------------------- 7

6. Contentions----------------------------------------------------------------10

7. Prayer-----------------------------------------------------------------------11

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 Memorandum on behalf of the Respondent

LIST OF ABBREVIATIONS
1. AIR________________________________________________All India Report
2. No.________________________________________________ Number
3. SC________________________________________________ Supreme Court
4. Jhar_______________________________________________ Jharkhand
5. Ori_______________________________________________ Orissa
6. Raj__________________________________________________ Rajasthan
7. V. _________________________________________________Versus
8. SCC________________________________________________Supreme Court Cases

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 Memorandum on behalf of the Respondent

LIST OF CASES

 Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156;
 Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee & Ors., AIR
1964 SC 1336;
 Mata Din v. A. Narayanan, AIR 1970 SC 1953;
 Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361;
 Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi & Anr., AIR 1968 SC 222;
 Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540;
 Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development
Corporation & Another, (2010) 5 SCC 459;
 Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993;
 State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306.

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 Memorandum on behalf of the Respondent

STATEMENT OF FACTS

1. The respondent was the married wife of one Basappa.

2. The appellant is the mother of said Basappa. Respondent's husband Basappa, filed a
petition for obtaining divorce against the respondent on the ground of desertion.
3. The said application was moved by said Basappa being M.C. No. 25 of 1989 in the
court of the learned Civil Judge, Gadag in Karnataka State. The said application was
moved by Basappa under Section 13(1)(i-b) of the Hindu Marriage Act, 1955.
4. The said divorce petition came to be decreed ex parte against the respondent on
15.12.1989. It is the case of the appellant, mother-in-law of the respondent, that her
son Basappa having obtained the decree of divorce filed a suit being O.S. No. 42 of
1990 in the Court of the Munsif at Ron for permanent injunction against the
respondent contending that though she was no longer the wife of Basappa in view of
the decree of divorce yet she was unnecessarily interfering with his possession and
enjoyment of the suit property.
5. It is the further case of the appellant that on 1.3.1990 the respondent was served with
the summons in O.S. No. 42 of 1990 but remained absent. Thereafter, the Trial Court
granted a temporary injunction against the respondent, said Basappa, husband of the
respondent, died on 26.5.1990.
6. It is thereafter that the respondent filed miscellaneous application being
Miscellaneous Case No. 102 of 1990 under Order IX Rule 13 C.P.C. in the Court of
Civil Judge at Gadag for setting aside the ex parte divorce decree passed on
15.12.1989.
7. It was the case of the respondent that she had come to know about the ex parte
divorce decree only on 31.3.1990; that she was not served with the summons in the
said petition filed by Basappa.
8. She also filed an application for condonation of delay in filing the miscellaneous case
for setting aside the ex parte decree of divorce.

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 Memorandum on behalf of the Respondent

ISSUES RAISED

1. Whether the marriage petition is abated or restored?

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 Memorandum on behalf of the Respondent

SUMMARY OF PLEADINGS

1. Whether the marriage petition is abated or restored?

It is humbly submitted in the immediate case that the respondent had come to know about the
ex parte divorce decree only on 31.3.1990; and she was not served with the summons in the
said petition filed by appellant. She also filed an application for condonation of delay in filing
the miscellaneous case for setting aside the ex parte decree of divorce. Hence, the marriage
petition should be abated.

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 Memorandum on behalf of the Respondent

WRITTEN SUBMISSION

1. The Marriage Petition is Abated.

Respondent filed a revision petition being Revision Petition No. 3683 of 1991 under Section
115 of the C.P.C. in the High Court of Karnataka. The learned Single Judge of the High
Court allowed the said revision application on the ground that the respondent being an
illiterate lady would not have read the notice published in the newspaper about the pendency
of the divorce proceedings taken out by the respondent's husband Basappa against her and,
therefore, this was a fit case for condoning the delay in filing the miscellaneous application
under Order IX Rule 13 C.P.C. and also for setting aside the ex parte decree. Accordingly the
learned Single Judge set aside the ex parte decree by the impugned order and also ordered
that the Hindu Marriage Petition be restored to the file. The learned Trial Court was directed
to take up the matter and dispose it of in accordance with law as expeditiously as possible.

Order IX, R.13 CPC:

The aforesaid provisions read as under:

Setting aside decree ex-parte against defendant In any case in which a decree is passed ex-
parte against a defendant, he may apply to the Court by which the de- cree was passed for an
order to set it aside; and if he sat- isfies the Court that the summons was not duly served, or
that he was prevented by any sufficient cause from appearing when the suit was called on for
hearing, the Court shall make an order setting aside the decree as against him upon such
terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit; xx xx xx Provided further that no Court shall set aside a decree
passed ex-parte merely on the ground that there has been an irregularity in the service of
summons, if it is satisfied that the defendant had notice of the date of hearing and had
sufficient time to appear and answer the plaintiff's claim.1

1
Brij Indar Singh v. Lala Kanshi Ram & Ors., AIR 1917 P.C. 156; Manindra Land and Building Corporation Ltd. v.
Bhutnath Banerjee & Ors., AIR 1964 SC 1336; and Mata Din v. A. Narayanan, AIR 1970 SC 1953

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 Memorandum on behalf of the Respondent

"Sufficient Cause" is an expression which has been used in large number of Statutes. The
meaning of the word "sufficient" is "adequate" or "enough", in as much as may be necessary
to answer the purpose intended. Therefore, word "sufficient" embraces no more than that
which provides a platitude which when the act done suffices to accomplish the purpose
intended in the facts and circumstances existing in a case and duly examined from the view
point of a reasonable standard of a cautious man. In this context, "sufficient cause" means
that party had not acted in a negligent manner or there was a want of bona fide on its part in
view of the facts and circumstances of a case or the party cannot be alleged to have been "not
acting diligently" or "remaining inactive". However, the facts and circumstances of each case
must afford sufficient ground to enable the Court concerned to exercise discretion for the
reason that whenever the court exercises discretion, it has to be exercised judiciously.2

This Court observed that every good cause is a sufficient cause and must offer an explanation
for non-appearance. The only difference between a "good cause" and "sufficient cause" is
that the requirement of a good cause is complied with on a lesser degree of proof than that of
a "sufficient cause".3

While deciding whether there is a sufficient case or not, the court must bear in mind the
object of doing substantial justice to all the parties concerned and that the technicalities of the
law should not prevent the court from doing substantial justice and doing away the illegality
perpetuated on the basis of the judgment impugned before it.4

In order to determine the application under Order IX, Rule 13 CPC, the test has to be applied
is whether the defendant honestly and sincerely intended to remain present when the suit was
called on for hearing and did his best to do so. Sufficient cause is thus the cause for which the
defendant could not be blamed for his absence. Therefore, the applicant must approach the
court with a reasonable defence. Sufficient cause is a question of fact and the court has to
exercise its discretion in the varied and special circumstances in the case at hand.

2
Ramlal & Ors. v. Rewa Coalfields Ltd., AIR 1962 SC 361; Sarpanch, Lonand Grampanchayat v. Ramgiri Gosavi &
Anr., AIR 1968 SC 222; Surinder Singh Sibia v. Vijay Kumar Sood, AIR 1992 SC 1540; and Oriental Aroma
Chemical Industries Limited v. Gujarat Industrial Development Corporation & Another, (2010) 5 SCC 459
3
In Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 SC 993
4
State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., AIR 2000 SC 2306; Madanlal v. Shyamlal, AIR 2002 SC
100; Davinder Pal Sehgal & Anr. v. M/s. Partap Steel Rolling Mills (P) Ltd. & Ors., AIR 2002 SC 451; Ram
Nath Sao alias Ram Nath Sao & Ors. v. Gobardhan Sao & Ors., AIR 2002 SC 1201; Kaushalya Devi v. Prem Chand
& Anr. (2005) 10 SCC 127; Srei International Finance Ltd., v. Fair growth Financial Services Ltd. & Anr., (2005)
13 SCC 95; and Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054

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 Memorandum on behalf of the Respondent

It is humbly submitted that as the ex parte decree is found to be rightly set aside by the High
Court, the marriage petition would automatically stand restored on the file of the learned
Trial Judge at the stage prior to that at which they stood when the proceedings got intercepted
by the ex parte decree. Once that happens it becomes obvious that the original petitioner
seeking decree of divorce against the wife being no longer available to pursue the
proceedings now, the proceedings will certainly assume the character of a personal cause of
action for the deceased husband and there being no decree culminating into any crystallized
rights and obligations of either spouse, the said proceedings would obviously stand abated on
the ground that right to sue would not survive for the other heirs of the deceased husband to
get any decree of divorce against the wife as the marriage tie has already stood dissolved by
the death of the husband. No action, therefore, survives for the court to snap such a non-
existing tie, otherwise it would be like trying to slay the slain. At this stage there remains no
marriage to be dissolved by any decree of divorce.

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 Memorandum on behalf of the Respondent

PRAYER FOR RELIEF

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited.
This Honourable Supreme Court of India may be pleased to pass a decision and declare that:

1. The marriage petition is abated.

2. The appeal is dismissed.

Or pass any other order which can be deemed fit in the spirit of justice, equity and good
conscience.

All of which is humbly submitted before the Honourable Supreme Court of India

Taruna Shandilya

Date: 4th April 2016 (Counsel for Respondent)

Section ‘B’ ,Semester II

Roll No. 180

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