ORDER 1. Arising out of the order dated 23.4.2018 passed by the Principal Judge, Family Court, Sagar in Misc. Civil Case No. 7/2015 rejecting the application under Order 9 rule 13 of the CPC filed by the appellant/wife for setting aside the ex parte judgment and decree dated 19.12.2012 of the divorce in Civil Suit No.121-A/2012 filed by the respondent/husband, this appeal has been preferred. 2. On perusal of the facts of the case, a suit was filed by the respondent/husband seeking divorce under section 13 of the Hindu Marriage Act on the ground of cruelty. In the said suit, notices were issued to the appellant/wife by ordinary as well as registered post. The service of notice was accepted by Court due to refusal of the notice sent by registered post, to the appellant/wife. Though on the notice sent by ordinary mode, the complete address was not given. After the exparte judgment and decree and having its knowledge, application under Order 9 rule 13 of CPC was filed by the appellant/wife along with an application seeking condonation of delay, which was rejected by the trial Court by the impugned order. 3. Learned trial Court in paragraph 19 of the impugned order has observed that on a notice sent by registered post, complete name and address which was written in the application filed by the wife for setting aside the exparte judgment and decree was mentioned. However, address on the notice sent and the address which was mentioned in the application is the same. Therefore, there is no reason to disbelieve the noting of the postman regarding refusal to accept notice. In addition, it is said that if the notice has been served, there is a presumption as per the provisions of the Act in favour of the department. However, accepting the service of notice, Court has rightly proceeded against the appellant/wife and rightly passed the judgment and decree, which cannot be set aside merely on saying by the wife. 4. We have heard learned counsel appearing for the parties and perused the record. On perusal of the record leaving other undisputed facts, if we see the notice sent to the wife by registered post, a note was put on it by the postman that the noticee has refused to accept it. 4. We have heard learned counsel appearing for the parties and perused the record. On perusal of the record leaving other undisputed facts, if we see the notice sent to the wife by registered post, a note was put on it by the postman that the noticee has refused to accept it. It is relevant to mention that on the notice, a note has been put that from 22.10.2012 upto 26.10.2012, the noticee was searched and not found on the address. But on 29.10.2012, a note was put that the noticee has refused to accept the notice, therefore, returned back. It is relevant to point out here that if on search, the noticee to whom registered notice was sent was not found, the said registry may be kept in abeyance for 7 days and on the 7th day, it be returned by the remark that despite search, the noticee was not found. From the date of noting i.e. 22.10.2012, the 7th day completes on 28.10.2012. However, on 7th day, the postman should have put a remark that noticee has not been found, but thereafter on the next day i.e. 29.10.2012, remark was put by him that the noticee has refused to accept the notice. On the envelope on which said remark was put, there is no witness to the effect that the person who refused to accept the notice is the noticee or not ? In the Court, neither the postman was called to prove the remark put by him regarding refusal to accept nor any witness before whom the notice of the Court was refused by the wife has been brought on record. In case, either the witness or the postman would have been brought as a witness in the proceedings under Order 9 rule 13 of the CPC, the wife may be in a position to cross-examine him on the aforesaid issue. In absence of it, in our considered opinion, remark put by the postman regarding refusal of the notice by the wife has not been proved by the husband disproving the allegation of wife made in the application. However, it can safely be accepted that the notice sent through registered post on which remark of refusal to accept the said notice was put on behalf of the wife by the postman has not been proved. However, it can safely be accepted that the notice sent through registered post on which remark of refusal to accept the said notice was put on behalf of the wife by the postman has not been proved. More so, in view of the discussion made hereinabove, if the postman visited at place of the address of the noticee and searched her, who was not found on 22.10.2012 then on 28.10.2012, he would have returned it back within 7 days. There was no occasion to the postman to serve it thereafter. In view of the matter, in our considered opinion, the findings as recorded by the trial Court rejecting the application under Order 9 rule 13 of the CPC is not in accordance with law and also not based on due appreciation of evidence. Therefore, such findings deserve to be set aside. 5. In consequences of the above discussion, this appeal is allowed. The application under Order 9 rule 13 of the CPC filed by the appellant/wife is also allowed. The exparte judgment and decree passed by the trial Court dated 19.12.2012 is set aside directing to restore the civil suit filed by the respondent/husband to its file. The trial Court is also directed to decide the said suit within a period of one year from the date of appearance of the parties. The learned counsel for the parties present in the Court are ready to appear before the trial Court on 2.12.2019. However, from the said date, the suit be decided by the trial Court as early as possible within the time so specified. 6. Parties are directed to remain present on 2.12.2019 before the trial Court. The record of the trial Court be post haste transmitted by the Registry with a view to reach there on or before the date so fixed.