Case Note & Summary
The case arises from a matrimonial dispute between Sebastiao Paulo Fernandes (appellant/husband) and Filomena Fernandes (respondent/wife). The wife filed Special Civil Suit No.270/1995/III before the IIIrd Additional Civil Judge, Senior Division, Margao, seeking dissolution of marriage and separation of properties. The husband filed a written statement disputing the claim for divorce and made a counterclaim seeking divorce under Articles 4, sub-clauses 4 and 5, and division of assets under Articles 26 and 27 of Chapter II of the Portuguese Civil Code. The wife did not file a reply to the counterclaim and failed to appear before the trial court. Consequently, the trial court proceeded ex-parte on the counterclaim, allowed it based on the husband's affidavit evidence under Order XIX Rule 1 CPC, and passed a decree dissolving the marriage and ordering division of properties. The wife appealed to the Additional District Judge, South Goa, Margao in RCA No.165/2001, which set aside the trial court's judgment and decree on the ground that the wife was not served with notice of the counterclaim and was denied an opportunity to be heard, violating principles of natural justice. The husband then filed the present second appeal under Section 100 CPC. The High Court of Bombay at Goa dismissed the appeal, holding that the lower appellate court correctly found that the trial court had acted without jurisdiction by proceeding ex-parte on the counterclaim without notice to the wife. The High Court noted that the wife had not been served with any notice of the counterclaim, and the trial court's order to proceed ex-parte was passed without giving her an opportunity to contest. The court emphasized that even if a party fails to appear, the court must ensure that the party has been properly served with the pleadings, including any counterclaim. The High Court upheld the appellate order remanding the matter for fresh trial, allowing both parties to lead evidence and contest the suit and counterclaim on merits.
Headnote
A) Civil Procedure - Ex-Parte Decree - Counterclaim - Natural Justice - Code of Civil Procedure, 1908, Order VIII Rule 6A, Order XIX Rule 1 - The trial court decreed the counterclaim ex-parte without notice to the plaintiff, who had not filed a reply to the counterclaim and had failed to appear. The appellate court set aside the decree holding that the plaintiff was not served with notice of the counterclaim and was denied opportunity to be heard. The High Court upheld the appellate order, holding that proceeding ex-parte on a counterclaim without notice violates principles of natural justice. (Paras 2-5) B) Family Law - Divorce - Property Division - Portuguese Civil Code, Chapter II, Articles 4, 26, 27 - The appellant husband sought divorce and division of assets under the Portuguese Civil Code. The trial court allowed the counterclaim ex-parte. The appellate court set aside the decree on procedural grounds without examining the merits of the divorce or property claims. The High Court affirmed, leaving the parties to contest the suit afresh. (Paras 2-6)
Issue of Consideration
Whether the trial court could pass an ex-parte decree on the counterclaim without serving notice of the counterclaim on the plaintiff and without giving her an opportunity to be heard, and whether the lower appellate court was justified in setting aside such decree.
Final Decision
The High Court dismissed the second appeal, upholding the order of the Additional District Judge setting aside the ex-parte decree. The matter was remanded for fresh trial, allowing both parties to lead evidence and contest the suit and counterclaim on merits.
Law Points
- Ex-parte decree without notice of counterclaim
- violation of natural justice
- Order XIX Rule 1 CPC
- Portuguese Civil Code Articles 4
- 26
- 27
- Section 100 CPC
