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2011 DIGILAW 2367 (RAJ)

Kamlesh alias Kamla v. Mukesh Yadav

2011-11-04

ARUN MISHRA, NARENDRA KUMAR JAIN

body2011
JUDGMENT : Heard. 1. The appeal has been preferred as against the order dated 08.04.2011 passed by the Family Court No.1, Jaipur, rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure. 2. Facts, in short, are that respondent/husband Mukesh Yadav filed an application under Section 13 of the Hindu Marriage Act for divorce against appellant/wife on the ground of cruelty and as she was siding separately since April, 2002 without any reasonable cause. The husband was beaten up by the wife and he and his family members were insulted and abused. It was the usual act of the wife to commit the aforesaid acts. The wife was residing separately with effect from April, 2002, whereas marriage was performed on 27.02.2001. The case was presented before the Family Court on 09.09.2009, on which date the Court ordered to issue process. On next date i.e. 09.12.2009, notice was not received back, as such, the Court ordered issuance of fresh notice and fixed the next date as 10.03.2010. On 10.03.2010, the Court has drawn the order-sheet that service has been effected by affixture, which was considered to he sufficient and fixed the next date as 28.04.2010. On 28.04.2010, the Court recorded that since service has already been effected and wife was not present, as such conciliation was not possible and next date fixed was 05.06.2010. On this date, evidence was recorded ex parte and decree of divorce has been passed on 05.06.2010 itself. An application under Order 9 Rule 13 of the Code of Civil Procedure was filed by the wife on 12.07.2010 alleging that no service of notice was effected; she came to know, for the first time, about ex parte decree of divorce on 04.07.2010 from her sister Santra, wife of brother of her husband when she was told that divorce has been obtained ex parte. On that, when sister Santra had informed the factum of ex parte. On that, when sister Santra had informed the factum of ex parte. On that, when sister Santra had informed the factum of ex panic decree telephonically; certified copy was applied for; simpliciter, in undue haste just after five dates, decree has been obtained ex parse; there was no service much less service was allegedly effected by way of affixture: she never refused to accept the notice, in fact, she was residing in the village in question itself and service was never declined: notice was also not published in the news paper: no intimation of registered notice was tendered; registered notice was also not refused. 3. The application was contested by the husband contending that service was effected, as there was evasion on the part of wife to accept the notice; service was made by affixture; there was no reason to set aside the ex parte decree. The Family Court has dismissed the application filed under Order 9 Rule 13 of the Code of Civil Procedure. Aggrieved thereby, the appeal has been preferred. 4. Shri Manu Bhargava, learned counsel appearing with the appellant, has submitted that summons which are on record, indicate that service was never refused, in case the facts mentioned in the summons are found to be correct. Service by affixture could not have been made. He has also attracted our attention towards registered envelope, which is on record. Counsel has submitted that service had never been refused by the appellant as per endorsements made on the summons as well as on registered envelope; as such the mode of substituted service could not have been resorted to Ex parte decree has been obtained fraudulently. in undue haste, hence the same deserves to he set aside. 5. Shri Akhil Simlote, learned counsel appearing with the respondent, has submitted that there was delay in filing the application tinder Order 9 Rule 13 of the Code of Civil Procedure and no application under Section 5 of the Limitation Act was filed. The case of appellant/wife, as set up in the application for restitution, was that she was residing in the village, thus it has to be presumed that she was avoiding the service of notice. The case of appellant/wife, as set up in the application for restitution, was that she was residing in the village, thus it has to be presumed that she was avoiding the service of notice. The summon was rightly affixed on the house: remarriage was performed on 05.07.2010, whereas ex parte decree was passed on 05.06.2010, hence, no case is made out in view of remarriage which has been performed, to make interference in the appeal. 6. The first question for consideration is whether endorsement made on the summon indicates that appellant/wife, had at any point of time, avoided the service of summon, as required under Order 5 Rule 20 of the Code of Civil Procedure. It is necessary to resort to the process of substituted service under Order 5 Rule 20 Civil Procedure Code when the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot he served in the ordinary way, the Court shall order the summons to he served by affixing a copy thereof in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the & defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. 7. In the instant case, summon was issued on 09.09.2009 for appearance on 09.12.2009. The order-sheet dated 09.12.2009 indicates that on process fee being submitted. as per previous order notice was issued for : service and next date fixed was 10.03.2010, meaning thereby that notice was not issued pursuant to the order dated 09.09.2009, however, we find that notice was on record, which was purportedly issued on 12.10.2009. In the said notice, endorsement of the process server does not bear any date and in the endorsement, it has been mentioned that wife was not in the house and the family members declined to accept the notice. It was further mentioned that notice was affixed on the house of father of the appellant/wife, but no date has been mentioned on which service by affixture has been made. The facts mentioned on the hack of aforesaid summon indicate that wife had never avoided receipt of notice. It was further mentioned that notice was affixed on the house of father of the appellant/wife, but no date has been mentioned on which service by affixture has been made. The facts mentioned on the hack of aforesaid summon indicate that wife had never avoided receipt of notice. It has not been mentioned that wife was in the village and has avoided service of notice, nor it has been mentioned that she was present in the house. Apart from that, it has not been mentioned that who was the family member, who declined to accept the notice; name of family member has also not been mentioned, more over in view of order-sheet dated 09.12.2009, service of summon by affixture is doubtful, ass per summon dated 12.10.2009 as otherwise this fact would have been mentioned in the order-sheet dated 09.12.2009, on the other hand, order-sheet dated 09.12.2009 indicates that notice he issued as ordered earlier, on submission of process fee. The Court has also not mentioned factum of the service of notice by the aforesaid summon. 8. When we come to the next summon, which is on record, which was issued on 15.1.2010 for appearance on 10.03.2010, endorsement made by process server indicates that Kamlesh was residing at Jaipur and her address was mentioned as Plot No.A-36, Sector-6, Shree Niwas Nagar. Jaipur by process server. There was again another endorsement made by the process server to the same effect. Thereafter, at the bottom of the said summon, third endorsement has been made to the effect that on 05.03.2010, process server has made efforts for service of summon and her family members had intimated that she was not available and had gone outside to relations and the family members refused to accept the notice. Again, it was not mentioned as to who was the family member, who refused to accept the notice and it was tendered to whom. In view of two earlier endorsements made on the same summon that she was residing at Jaipur and her address of Jaipur was also mentioned, there was no occasion to make third effort and endorsement as to refusal by the family members. It has not been mentioned by the process server that wife has avoided the service of notice. In view of two earlier endorsements made on the same summon that she was residing at Jaipur and her address of Jaipur was also mentioned, there was no occasion to make third effort and endorsement as to refusal by the family members. It has not been mentioned by the process server that wife has avoided the service of notice. In the circumstances substituted service by way of affixture could not have been made by the process server, as per Order 5 Rule 20 Civil Procedure Code it was wholly impermissible. 9. When we come to the registered envelope, which is on record, postal endorsement dated 10.02.2010 indicates that wife had gone to Jaipur and her Jaipur address was also mentioned, which was same as mentioned on the back of the second summon. The postman had not made any endorsement that wife had refused to accept the registered envelope containing summon. 10. In view of the aforesaid, there was no occasion to effect the substituted service on 10.03.2010 after 10.03.2010, next date fixed in the case was 28.04.2010. On this date, the Family Court recorded that conciliation was not possible as wife has not appeared in the case in spite of service and proceeded ex parse. On next date i.e. 05.06.2010, evidence of Mukesh Yadav and Moolchand Yadav was recorded and ex parte decree was passed on the same day. The Family Judge has totally failed to consider that there was no due service of notice and mode of affixture was not permissible in the instant case and was doubtful also. 11. In view of the aforesaid facts and circumstances, it is apparent that decree has been obtained in fraudulent manner in undue haste. Merely by the facts pleaded in the application that she was residing in same village and had not gone outside, if relied on, indicate that facts mentioned by process server were not correct hence service was extremely doubtful. However the endorsement, which has been made, itself could not he said to be enough to effect the substituted service by way of affixture. The Family Court while rejecting the application has failed to consider the aforesaid aspects. 12. It was argued that no application under Section 5 of the Limitation Act was filed as decree was passed ex parse on 05.06.2010 and application was filed on 12.07.2010. The Family Court while rejecting the application has failed to consider the aforesaid aspects. 12. It was argued that no application under Section 5 of the Limitation Act was filed as decree was passed ex parse on 05.06.2010 and application was filed on 12.07.2010. It has been mentioned in application filed under Order 9 Rule 13 Civil Procedure Code that the wife came to know about the ex parse decree on 04.07.2010 through her sister, as her sister was married to the brother of respondent/husband. Requisite facts for condonation of delay have been pleaded in the application filed under Order 9 Rule 13 of the Code of Civil Procedure. Thus, when there was no knowledge of ex parte decree we are of the opinion that sufficient cause was made out, so as to condole the delay and to set aside the ex parte decree. 13. Coming to the submission that husband has performed remarriage, we do not want to comment on the aforesaid aspect, as it appears that husband was bent upon to perform remarriage. He had obtained the decree ex parse on 05.06.2010 and performed remarriage, as submitted, on 05.07.2010, that too in Arya Samaj, not in regular manner, as if he was waiting just to ensure that thirty days limitation period expires to file appeal, as Section 15 of the Hindu Marriage Act mandates that remarriage cannot be performed in case appeal is preferred within period of limitation, as provided in the Act. Just on expiry of period of limitation i.e. on 31st day, he allegedly performed remarriage, which also goes to indicate that conduct of respondent/husband was dubious. He was just waiting for the day for performing remarriage, on expiry of period of limitation to file appeal. Performance of remarriage cannot come in the way of wife in getting ex parse decree set aside in the case as notice of petition for divorce was not effected, as decree for divorce could only be passed in legal manner; no equity arises in favour of respondent/husband due to performance of remarriage, that too in Arya Samaj. In undue haste, decree had been obtained and remarriage has been performed, the conduct of husband was extremely dubious. 14. Consequently, we allow the appeal with the cost of Rs.10,000/- (Rs. Ten thousand), to be paid by the husband to the wife. In undue haste, decree had been obtained and remarriage has been performed, the conduct of husband was extremely dubious. 14. Consequently, we allow the appeal with the cost of Rs.10,000/- (Rs. Ten thousand), to be paid by the husband to the wife. Ex parte decree as well as order passed by the Family Court No. 1. Jaipur rejecting the application under Order 9 Rule 13 of the Code of Civil Procedure are hereby set aside. Family Court to give opportunity to the wife to file written statement. No fresh service need be issued, as she is appearing in the proceedings now. Written statement to be filed within a period of four weeks from today before the Family Court. We fix, the date for appearance of the parties before the Family Court on 28.11.2011. Cost imposed by us to be paid to the wife by the husband for prosecuting the case.