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Rajasthan High Court · body

2020 DIGILAW 26 (RAJ)

Shravan Kumar S/o Sh. Gordhan Ram v. Revti Devi D/o Sh. Harkaran Ram

2020-01-03

ARUN BHANSALI, SANGEET LODHA

body2020
JUDGMENT : BHANSALI, J. 1. This appeal under Section 19 of the Family Courts Act, 1984 (‘Act of 1984’) is directed against order dated 27.02.2019 passed by the Family Court No. 2, Jodhpur, whereby, application filed by respondent under Section IX, Rule 13 CPC read with Section 151 CPC has been allowed and ex parte judgment and decree dated 13.05.2015 passed by the said Court has been set aside. 2. The appellant filed petition on 26.09.2012 under Section 13 of the Hindu Marriage Act, 1955 (‘Act of 1955’) seeking dissolution of marriage with the respondent on the ground of cruelty. 3. When despite substituted service under Order V, Rule 20 CPC by publication of notice in the newspaper the respondent-wife did not appear, the Family Court by order dated 28.10.2014, ordered to proceed with the matter ex parte. 4. On behalf of the appellant two witnesses were examined. Whereafter, the Family Court by its judgment and decree dated 13.05.2015 came to the conclusion that the respondent was guilty of cruelty, found the ground for dissolution of marriage proved and consequently, ordered for dissolution of marriage. 5. The respondent-wife whereafter filed an application under Order IX, Rule 13 CPC on 02.09.2015 seeking setting aside of ex parte decree dated 13.05.2015. 6. The application was contested by the appellant denying the averments made in the application. 7. The Family Court on the pleadings of the parties in the application framed two issues, wherein, both the parties led evidence. After hearing the parties, the Family Court came to the conclusion that summons of the proceedings were neither served by way of ordinary process nor through post and, therefore, service on the respondent cannot be termed as legal and the respondent was entitled for an opportunity of hearing and consequently, allowed the application and set aside the decree dated 13.05.2015. 8. It is submitted by learned counsel for the appellant that the Family Court was not justified in setting aside the ex parte decree. 8. It is submitted by learned counsel for the appellant that the Family Court was not justified in setting aside the ex parte decree. It was submitted that when the respondent, despite several attempts made for personal service on her, avoided the service, the order for substituted service by way of publication of notice in daily newspaper was rightly passed by the Family Court and when despite substituted service the respondent did not appear, the matter was ordered to be proceeded ex parte, to which, no exception can be taken and, therefore, the order impugned deserves to be quashed and set aside. 9. Further submissions have been made that when no appeal was filed by the respondent against the ex parte decree within the stipulated period, the appellant has contracted marriage with one Smt. Prem Kumari and on that count also the Family Court should not have passed the order setting aside the ex parte decree. 10. Further submissions have been made with reference to compromise said to have been arrived at between the parties dated 29.11.2014/05.02.2015, which is being faithfully complied with by the appellant and, therefore also, the plea raised by the respondent regarding she being unaware of the proceedings has no basis and, therefore, the order impugned deserves to be quashed and set aside. 11. Learned counsel for the respondent supported the order passed by the Family Court. Submissions have been made that there was apparently no occasion for the Family Court to pass the order for substituted service, inasmuch as, the requirements of provisions of Order V, Rule 20 CPC were not fulfilled and the notice was also published in a newspaper which had no circulation at the place of respondent’s residence and, therefore also, the order impugned does not call for any interference. 12. We have considered the submissions made by learned counsel for the parties and have perused the material available on record alongwith record of the Family Court pertaining to the original proceedings as well as proceedings seeking setting aside of ex parte decree. 13. A perusal of record of the Family Court reveals that after the petition was filed by the appellant, summons were ordered to be issued on 01.10.2012 to the respondent. By order dated 18.04.2013 the summons, which were filed in the meanwhile, were ordered to be issued, returnable on 03.07.2013. 13. A perusal of record of the Family Court reveals that after the petition was filed by the appellant, summons were ordered to be issued on 01.10.2012 to the respondent. By order dated 18.04.2013 the summons, which were filed in the meanwhile, were ordered to be issued, returnable on 03.07.2013. Again on 03.07.2013 order was passed for issuing the summons as apparently the same were not issued and the prayer made by the appellant for sending the notice by registered post were also accepted, returnable on 12.09.2013. On 12.09.2013 it was noticed that the summons have not been returned and on filing of process, the same be reissued. On 04.01.2014 again orders were passed for sending notice as it appears that pursuant to the previous order, the requisites were not filed, returnable on 19.03.2014. On 19.03.2014 an application was filed seeking substituted service by publication of notice in the newspaper, on which, the Family Court passed the following order:- “22-4-14 izkFkhZ mi0 vizkFkhZ vuq0 izkFkhZ us fnukad 19-3-14 dks lEeu v[kckj nSfud uoT;ksfr ukxkSj ls izdkf'kr esa lk;k djokus ckcr izkFkZuk i= is'k fd;k ftl ij lquk x;k rFkk v[kckj esa lk;k djokus ckcr vkns'k fn;k tkrk gSA lEeu ryckuk is'k gksus ij izkFkhZ ds [kpsZ ls tkjh dj ns[kus rkfey fjiksVZ fnukad 28-6-14 dks is'k gksA** 14. On the next date, the newspaper was produced, the service was treated as complete and whereafter on 28.10.2014 on account of non appearance, the matter was ordered to be proceeded ex parte against the respondent. 15. A perusal of the entire record of the Family Court pertaining to the original proceedings reveal that apparently despite orders of the Court for filing/issuing summons, though the same appears to have been issued on one occasion, the same did not return back and despite directions to send notices by registered post, apparently the summons were not even sent by registered post and apparently there was no material whatsoever available on record of any attempt having been made for service on the respondent and/or the respondent avoiding the service of summons. 16. 16. Provisions of Order V, Rule 20 CPC requires satisfaction of the Court for 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, before it can pass order for substituted service and under Rule (1A) the needful may be done by advertisement in a newspaper having circular in the locality in which the defendant is last known to have actually and voluntarily resided. 17. A perusal of the order dated 22.04.2014, quoted hereinbefore, reveals that the Family Court passed the order in a routine manner without even looking at the record and/or recording the satisfaction as required by the provisions of Order V, Rule 20 CPC and, therefore, passing of the order, ordering for substituting service itself was against law. There is no material available on record of the trial court to indicate that the summons of the proceedings were even attempted to be served on the respondent and, therefore, in those circumstances, it is apparent that the ex parte decree was passed against the respondent without affording any opportunity of hearing. 18. Though oral submissions have been made that the respondent was aware of the pendency of the proceedings, there is no material available on record to indicate that the respondent was aware of the proceedings. Even in the so called compromise arrived at between the parties, there is no indication whatsoever of the pending proceeding. The appellant could have very well indicated the said aspect and could have even settled the pending proceedings as well in case the respondent was aware of the pending proceedings and, as such, the submissions made in this regard also cannot be accepted. 19. Further even in the evidence led before the Family Court in the present application also, the appellant failed to prove that the respondent was in any manner aware of the pending proceedings for dissolution of marriage. 20. The mere fact that the appellant entered into another wedlock with Ms. Prem Kumari cannot be a reason for sustaining an ex parte decree in a matter where the summons were not served/no attempt was made to serve the summons on respondent. 21. 20. The mere fact that the appellant entered into another wedlock with Ms. Prem Kumari cannot be a reason for sustaining an ex parte decree in a matter where the summons were not served/no attempt was made to serve the summons on respondent. 21. In view of the above discussion, as it is apparent that the respondent was not served with summons and apparently there was no occasion for the Family Court to order for substituted service and that the respondent was unaware of the pending proceedings for dissolution of marriage, the Family Court by the impugned order dated 27.02.2019 was justified in setting aside the ex parte decree and the order passed in this regard does not call for any interference. 22. Consequently, the appeal filed by the appellant is dismissed. 23. The record of the Family Court be sent back immediately. 24. No order as to costs.