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2019 DIGILAW 33 (MAN)

Md. Aslam Khan v. Mst. Rajina

2019-07-03

MV MURALIDARAN

body2019
JUDGMENT : 1. This Criminal Revision Petition has been filed by the petitioner against the order dated 30.07.2016 passed in Criminal (Maintenance) Case No. 17 of 2015 on the file of the Family Court, Thoubal, Manipur. 2. The petitioner is the respondent and the first respondent is the first petitioner in Criminal (Maintenance) Case No. 17 of 2015. The second respondent is the son of the first respondent and the petitioner herein. 3. The respondents herein filed Criminal (Maintenance) Case No. 17 of 2015 under Section 125 Cr.P.C. seeking maintenance from the petitioner herein alleging that the first respondent was married to the petitioner in May, 2016 under Manipur Muslim Customs and lived together as husband and wife at the residence of the petitioner at Sora Maning Leikai P.O. & P.S. Kakching, District Thoubal, Manipur till she was compelled to leave her matrimonial home for her parental home at Yairipok Changamdabi P.O. & P.S. Yairipok District Thoubal, Manipur. It is stated that from the wedlock respondent No.2 was born and is staying with the first respondent. It is stated that after the birth of the second respondent, the petitioner took one Marjina from Thoubal Moijing as his second wife and is now living with her. After taking his second wife, the petitioner began to neglect the respondents and started ill-treating them by neglecting to provide food and other necessities. Since the health of the respondents became bad to worse, they were compelled to leave the matrimonial home. It is also stated that the first respondent has no source of income of her own and she has no one to support them. According to the respondents, the petitioner was working as Jawan in the Indian Army and earning Rs.40,000/- per month besides getting agricultural income of Rs.1,00,000/- from the lands owned by him. Stating so, the respondents have filed Maintenance Case claiming maintenance of Rs.20,000/- per month from the petitioner herein. 4. By the impugned ex parte order, the Family Court directed the petitioner herein to pay a sum of Rs.10,000/- to the respondents as monthly maintenance from the date of application till the second respondent attains majority and thereafter, half the amount till further orders of the Court. The Family Court also directed that arrears if any be paid in instalments, if requested by the petitioner and as agreed by the respondents. 5. The Family Court also directed that arrears if any be paid in instalments, if requested by the petitioner and as agreed by the respondents. 5. Assailing the ex parte order of the Family Court, the petitioner has filed the present revision contending that the impugned order has been passed in violation of principles of natural justice in as much as the petitioner was never served with summon/notice. It was contended that the Family Court has violated the provisions of Order 5, Rule 17, 19 and 20 of the Code of Civil Procedure, 1908. According to the petitioner, he came to know about the existence of the impugned ex parte order dated 30.07.2016 only on 24.05.2018 when he received summons in Criminal (Execution) Case No.2 of 2018. Thus, it is contended that there is failure of procedural law while passing the impugned ex parte order dated 30.07.2016 and that the impugned ex parte order is not sustainable in the eye of law and prayed for setting aside the same. 6. On the other hand, the respondents filed counter stating that though maintenance order was passed on 30.07.2016 and the execution proceeding for recovery of the maintenance amount started on 22.05.2018, the petitioner has failed to file petition to set aside the ex parte order. It is stated that the petitioner straight away filed the revision petition by passing the Executing Court that too without the explanation of delay in his petition though there is a delay of two years and fifteen days. It is further stated that the proceeding under Section 125 Cr.P.C. is summary in nature and intended to provide speedy remedy to wife. According to the respondents, the revision petition is devoid of merits and prayed for dismissal of the same. 7. Though the respondents have filed the counter-affidavit in the revision petition, subsequently, they have not turned up to proceed with the matter. Recording that despite opportunities/hearings, no one had entered appearance for the respondents, this Bench, heard the arguments of the learned counsel for the petitioner and reserved the case for judgment. 8. Before going into the contentions raised by the petitioner in this revision, let us see the earlier orders passed by the earlier Bench. Earlier, the matter was heard by the Hon'ble the Chief Justice and by an order dated 23.11.2018, the Hon'ble the Chief Justice passed an interim order. 8. Before going into the contentions raised by the petitioner in this revision, let us see the earlier orders passed by the earlier Bench. Earlier, the matter was heard by the Hon'ble the Chief Justice and by an order dated 23.11.2018, the Hon'ble the Chief Justice passed an interim order. The operative portion of the order reads thus: "However, as an interim measure, the amount specified by the Family Court requires to be modified to the extent that the revision petitioner shall deposit a sum of Rs.7000/- per month as monthly maintenance to the minor child and the respondent wife. This shall be paid from the date of filing of the petition in the year 2015 before the Family Court, Thoubal. The sum of Rs. 7000/- per month to be paid as an interim order shall be deposited before the Family Court, Thoubal along with the arrears from the date of the petition filed under Section 125 Code of Criminal Procedure was registered before the Family Court, Thoubal. The payment to be made on or before 19th December, 2018. The order of the Family Court is stayed subject to payment of Rs. 7000/- per month along with arrears." 9. Since the petitioner failed to comply with the order, by an order dated 06.03.2019, the Hon'ble Chief Justice has passed an order vacating the stay granted earlier. The operative portion of the order reads as under: "Therefore, the question of showing further indulgence to the petitioner does not arise. The stay granted by this Court stands vacated. The Family Court, Thoubal is directed to proceed further with the matter in accordance with law. The Family Court to report on the progress of the case." 10. As stated supra, thereafter, the present Bench heard the matter and reserved judgment. 11. The ground on which the petitioner is seeking to set aside the ex parte order of maintenance ordered by the Family Court is that no notice/summon was served on him and thus, the Family Court has violated the provisions of Order 5, Rule 17 of Cr.P.C. 12. 11. The ground on which the petitioner is seeking to set aside the ex parte order of maintenance ordered by the Family Court is that no notice/summon was served on him and thus, the Family Court has violated the provisions of Order 5, Rule 17 of Cr.P.C. 12. The learned counsel for the petitioner argued that in the case on hand, no notice and/or summon was served on the petitioner in the petition filed by the respondents under Section 125 Cr.P.C. and that the Process Server who went to serve the notice/summon on the petitioner has given a report to the effect that on 21.09.2015 at 3.00 PM., when he visited the person named in the summon for dilevery, the said person was found and he stated that he will not receive the summon and thus, returned the summon. Thus, it is clear that the Process Server has not made any attempt to affix the summon on the wall of the house of the petitioner and such procedural violation vitiates the impugned order. In support, the learned counsel for the petitioner placed reliance upon the decisions of the Hon'ble Supreme Court in Mohd. Naim Siddiqui v. Sultana Khatoon, reported in (1982) 3 SCC 369 and Sushil Kumar Sabharwal v. Gurpreet Singh and others, reported in (2002) 5 SCC 377 . 13. In Mohd. Naim Siddiqui, supra, the Hon'ble Supreme Court held: "2. After hearing counsel on either side we are satisfied that in this case the husband had not been served with notice when the matter was decided against biro ex-parte by the learned Trial Magistrate. We accordingly set aside the order dated 25.11.1979, passed by the High Court in revision as also the ex parte order passed by the learned Trial Magistrate in original complaint under S. 125, Criminal Procedure Code. The matter is remanded back to the learned Trial Magistrate for being disposed of afresh in accordance with law. There will be no fresh service on the husband. The counsel for the appellant has assured us that the appellant waives service and will appear before the Trail Magistrate. The learned Trial Magistrate is directed to dispose of the matter as expeditiously as possible preferably within four months from the date of the receipt of this order. The appeal stands disposed of accordingly with no order as to costs." 14. The learned Trial Magistrate is directed to dispose of the matter as expeditiously as possible preferably within four months from the date of the receipt of this order. The appeal stands disposed of accordingly with no order as to costs." 14. In Sushil Kumar Sabharwal, supra, the Hon'ble Supreme Court held: "8. We find several infirmities and lapses on the part of the process-server. Firstly, on the alleged refusal by the defendant either he did not affix a copy of the summons and the plaint on the wall of the shop or if he claims to have done so, then the endorsement made by him on the back of the summons does not support him, rather contradicts him. Secondly, the tendering of the summons, its refusal and affixation of the summons and copy of the plaint on the wall should have been witnessed by person who identified the defendant and his shop and witnessed such procedure. The endorsement shows that there were no witnesses available on the spot. The correctness of such endorsement is difficult to believe even prima facie. The tenant runs a shoe shop in the suit premises. Apparently, the shop will be situated in a locality where there are other shops and houses. One can understand refusal by unwilling persons requested by the process-server to witness the proceedings and be a party to the procedure of the service of summons but to say that there were no witnesses available on the spot is a statement which can be accepted only with a pinch of salt. Incidentally, we may state that though the date of appearance was 23rd February, 1993 the summons is said to have been tendered on 22nd February, 1993, i.e., just a day before the date of hearing." 15. The specific case of the petitioner is that no notices/summons were tendered to him by any Process Server and he never refused to receive the summons. On a perusal of the English translation of the report of the Process Server, it is seen that on 21.09.2015 at 3.00 P.M. when he visited the petitioner for delivery of summon, the petitioner stated that he will not receive the summon and stated that the first respondent may do whatever she likes and having no alternative, he returned back without serving the summon. Admittedly, the report does not reflect any witness to the tendering of summon to the petitioner. Admittedly, the report does not reflect any witness to the tendering of summon to the petitioner. Though the date of appearance was on 23.09.2015, the summon is said to have been tendered on 21.09.2015 i.e., just one day before the date of hearing, which suspects the report of the Process Server as the summon was signed by the Sheristadar of Family Court, Thoubal on 14.09.2015. 16. At this juncture, it would be pertinent to refer to the provision of Order 5, Rules 17 and 18 of Cr.P.C., which lay down the procedure of service when the defendant refuses to accept service and the endorsement to be made by the Process Server. Order 5, Rules 17 and 18 provides thus: 17. "Procedure when defendant refuses to accept service, or cannot be found. - Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood on his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. 18. 18. Endorsement of time and manner of service - the serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons." 17. In the case on hand, this Court finds several infirmities and lapses on the part of the Process Server. The statutory provisions extracted supra clearly states that tendering of the summon, its refusal and affixation of the summon and copy of the plaint on the wall should have been witnessed by persons who identified the defendant and his house and witnessed such procedure. As stated supra, the report of the Process Server clearly reveals no such attempt made by the Process Server to affix the summon on the wall of the house of the petitioner and that nobody was shown as witness to such service. 18. In Neerja Realtors Pvt. Ltd. Vs. Janglu (Dead) Thr. Lr., reported in (2018) 2 SCC 649 , the Hon'ble Supreme Court held: ".... The report of the bailiff does not indicate that the summons were affixed on a conspicuous part of the house, at the address mentioned in the summons. There was a breach of the provisions of Order V Rule 17. When the application for substituted service was filed before the Trial Court under Order V Rule 20, a cryptic order was passed on 2nd September, 2011. Order V Rule 20 requires the Court to be satisfied either 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 be served in the ordinary way. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Substituted service is an exception to the normal mode of service. The Court must apply its mind to the requirements of Order V Rule 20 and its order must indicate due consideration of the provisions contained in it. Evidently the Trial Court failed to apply its mind to the requirements of Order V Rule 20 and passed a mechanical order. Besides this, as observed by the learned Single Judge of the High Court, the Trial Judge ignored the provisions contained in Chapter III of the Civil Manual issued by the High Court on its appellate side for the guidance of civil courts and officers subordinate to it. Paragraphs 33 to 36 of Chapter III are extracted below: 33. In addition to the service to be effected through a bailiff, a summons may also be sent to the defendant, to the to the address given by the plaintiff, by registered post, prepaid for acknowledgement, provided there is a regular daily postal service at such place. 34. Rules as to service of summons are contained in rules 9 to 30 of Order V. Care should be taken to see that bailiffs follow those rules as well as the instructions given in the Bailiffs Manual. 35. It is the duty of the serving officer to follow the procedure and take all the steps laid down in rule 17 of Order V. He has no discretion for not taking the necessary steps, when the conditions laid down in the said rule are fulfilled. 36. It is for the Court to determine whether the service is good or bad. In determining whether the service is good or not, the attention of Courts is drawn to the necessity of strictly following the provisions of the Civil Procedure Code as to the service of processes. Ordinarily, service should not be considered sufficient unless all the requirements of the law in that behalf are fulfilled. The object of the service is to inform a party of the proceedings in due time. When from the return of a serving officer it appears that there is no likelihood that a process will come to the knowledge of the party in due time, or a probability exists that it will not so come to his knowledge, the service should not be considered to be proper. When from the return of a serving officer it appears that there is no likelihood that a process will come to the knowledge of the party in due time, or a probability exists that it will not so come to his knowledge, the service should not be considered to be proper. The law contemplates that the primary method of service should be tendering or delivering a copy of the process to the party personally, in case in which it may be practicable to do so. It is the duty of the serving officer to make all proper efforts to find the party, with a view to effect personal service. If it be not possible after reasonable endeavour to find the party, then only the service may be made on an adult male member of the family residing with him. The submission that under Order V Rule 20, it was not necessary to affix a copy of the summons at the court house and at the house where the defendant is known to have last resided, once the court had directed service by publication in the newspaper really begs the question. There was a clear breach of the procedure prescribed in Order V Rule 17 even antecedent thereto. Besides, the order of the Court does not indicate due application of mind to the requirement of the satisfaction prescribed in the provision. The High Court was, in these circumstances, justified in coming to the conclusion that the ex-parte judgment and order in the suit for specific performance was liable to be set aside." 19. It is the duty of the Process Server to follow the procedure and take all steps laid down under Order 5, Rule 17 of C.P.C. He has no discretion to proceed further unless the conditions laid down in the said Rule are not complied. Further, it is for the Family Court to determine whether the service is good or bad. 20. It is settled that in determining whether the service is good or not, the attention of the Court is drawn to the necessity of strictly following the provisions of the C.P.C. as to the service of processes. The report of the Process Server, as stated supra, does not indicate that the summon was affixed on a conspicuous part of the house, at the address mentioned in the summon/notice. The report of the Process Server, as stated supra, does not indicate that the summon was affixed on a conspicuous part of the house, at the address mentioned in the summon/notice. Thus, there was a breach of the provisions of Order 5, Rule 17 of C.P.C. 21. Based on the report of the Process Server dated 22.09.2015, the Family Court proceeded with the Criminal (Maintenance) Case No.17 of 2015 ex parte against the petitioner and passed ex parte order dated 23.09.2015. While passing the order dated 23.09.2015, the Family Court has not followed the provisions of Order 5, Rule 17 and 18 of C.P.C. 22. The factum of knowledge of the ex parte order by the petitioner only when he received the summon in Criminal (Execution) Case No.2 of 2018 on 22.05.2018 cannot be brushed aside and there is no denial on the part of the respondents. Though the respondents contended in their counter-affidavit that there was a delay of 2 !4 years in filing petition, the said contention was not substantiated by oral and documentary evidence. Moreover, despite opportunities, the respondents have not turned up to put forth their case. Thus, it is clear that no proper service was effected on the petitioner before the Family Court and based on the sole report of the Process Server, the Family Court set the petitioner ex parte and proceeded to pass ex parte order. 23. When there was infirmity and lapses in the service of summon and no proper service effected on the defendant, the ex parte order passed by the Court below cannot be sustained. In the case on hand, admittedly, the petitioner has proved that he was not served with summon in Criminal (Maintenance) Case No.17 of 2015. When such being the case, the ex parte order passed by the Family Court is not a valid order. 24. When the ex parte impugned order dated 30.07.2016 itself is not a valid order, the order of this Court dated 23.11.2018 directing the petitioner to pay maintenance of Rs.7000/- to the respondents and arrears, if any, cannot be pressed into service. 25. Accordingly, the order of the Family Court dated 30.07.2016 passed in Criminal (Maintenance) Case No.17 of 2015 is set aside and the matter is remanded to the Family Court, Thoubal, Manipur for fresh disposal in accordance with law, after affording reasonable opportunity to both parties. 25. Accordingly, the order of the Family Court dated 30.07.2016 passed in Criminal (Maintenance) Case No.17 of 2015 is set aside and the matter is remanded to the Family Court, Thoubal, Manipur for fresh disposal in accordance with law, after affording reasonable opportunity to both parties. The Family Court, Thoubal, Manipur is directed to dispose of the case as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this order. It is made clear that this Court has not expressed any opinion on the merits of the claim of the respondents made in Criminal (Maintenance) Case No.17 of 2015 and the quantum of maintenance ordered by the Family Court. This Court dealt with the matter on the sole question of non-serving of notice/summon on the petitioner and the procedural violation committed by the Family Court. 26. This petition stands allowed in the above terms. However, there is no order as to costs.