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Madhya Pradesh High Court · body

2012 DIGILAW 218 (MP)

Purshottam Choubey v. Gayatri Bai

2012-02-21

R.C.MISHRA

body2012
ORDER 1. Arguments heard. 2. This revision is directed against the order dated 16-11-2004 passed by First ADJ, Damoh in MJC No. 26/2000, allowing respondent’s application, under Order 9 Rule 13 of CPC, for setting aside ex parte divorce decree passed against her on 22-10-1997 in Civil Suit No. 84-A/97. 3. The background facts giving rise to the revision may be summarised thus :- (i) Marriage of the petitioner was solemnised with respondent on 13-5-1981. He filed a petition for divorce on the ground mentioned in section 13(1) (i) of the Hindu Marriage Act, 1955 in the Court of First Additional District Judge at Damoh. It was registered as Civil Suit No. 84-A/97. On 15-9-1997, the respondent was proceeded against ex parte for the reason that the envelope containing summons for 9-8-1997 and sent by registered post with acknowledgment due was received back with an endorsement purporting to have been made by postman to the effect that she had refused to receive the same. (ii) The application for setting aside the ex parte decree was made on the premise that the summons of the petition was not duly served on her and she could acquire knowledge of the decree only on 19-2-1998, the date on which its copy was filed by the petitioner in the proceedings initiated by her for grant of maintenance under section 125 of the Code of Criminal Procedure and registered as MJC No. 10/97 in the Court of JMFC, Hatta. 4. Learned Counsel for the petitioner, while making reference to the decision of the Apex Court in Basant Singh Vs. Roman Catholic Mission (2002) 7 SCC 531 , has submitted that learned Trial Judge did not commit any error in placing reliance on the report suggesting that defendant/respondent had refused to receive envelope containing summons for 9-8-1997. 5. A bare perusal of the impugned order would reveal that ex parte decree was set aside not only on the ground that summons was not duly served but also for the reason that even otherwise, the service of summons by registered post did not assume any significance as no attempt was made to effect the service thereof by general mode. The reasoning was justified in view of settled legal position that service by registered post is an additional/simultaneous mode of service and, therefore cannot be adopted without taking recourse to ordinary mode. The reasoning was justified in view of settled legal position that service by registered post is an additional/simultaneous mode of service and, therefore cannot be adopted without taking recourse to ordinary mode. [See : Electric Construction and Equipment Co. Ltd. (M/s) Vs. Permali Wallace Ltd. 1991 JLJ 45 ]. Further, as rightly pointed out by learned Counsel for the respondent, the endorsement as to refusal of envelope was not signed or initialed by the postman whereas the earlier endorsement indicating that the addressee was expected to come back from Hatta after 3 days did bear his signature. 6. There is yet another aspect of the matter. On 9-8-1997, observing that the envelope was not received back served or unserved, learned Trial Judge had directed issuance of fresh summons by registered post and fixed 9-9-1997, as the next of hearing but no follow up action was taken. Moreover, on 9.9.1997, the Presiding Judge was on leave and it was the Reader, who adjourned the case to 15-9-1997. In such a situation, on 15-9-1997, the Trial Judge ought to have ensured compliance with the direction contained in the order dated 9-8-1997 and to notify another date but, instead of doing so, he proceeded ex parte against the respondent on the basis of unsigned endorsement as to refusal of the envelope containing summons for 9-8-1997 whereas the date given by the Reader could not be validly treated as a date of hearing. Thus, viewed from any angle, the order dated 15-9-1997 was not sustainable in law. 7. In Basant Singh’s case (supra), the summons were sent by registered post on 24-2-1996 and ex parte proceedings were ordered on 22-8-1996 and one of the defendants namely Hari Singh came forward to depose that he did not receive the registered envelope. On these facts, the Supreme Court opined that the proviso to sub-rule (2) of Rule 19-A of Order 5 was rightly invoked. However, facts of the present case, as highlighted above, are clearly distinguishable and, therefore, the ruling in Basant Singh’s case (supra), is of no avail to petitioner. 8. Taking into consideration the aforesaid facts and circumstances of the case and the well-settled position of law, as reiterated in Parimal Vs. Veena. However, facts of the present case, as highlighted above, are clearly distinguishable and, therefore, the ruling in Basant Singh’s case (supra), is of no avail to petitioner. 8. Taking into consideration the aforesaid facts and circumstances of the case and the well-settled position of law, as reiterated in Parimal Vs. Veena. AIR 2011 SC 1150 , that the expression ‘sufficient cause’ occurring in Order 9 Rule 13, CPC, is the cause for which defendant could not be blamed for his absence, I am of the view that the impugned order does not suffer from any error of jurisdiction. 9. In the result, the revision stands dismissed. As an obvious consequence, the stay order passed on 17-12-2004 is hereby vacated. 10. As the petition was filed as far back as in the year 2004, it is directed that the Trial Court shall decide the case expeditiously; as far as possible, within a period of six months from the date of receipt of copy of this order. Parties shall appear before the Trial Court on 29-3-2012. 11. Records of the Courts below be returned forthwith.