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2020 DIGILAW 56 (RAJ)

Smt. Swati Agarwal v. Rajendra Kumar Gupta

2020-01-04

MAHENDAR KUMAR GOYAL, SANGEET LODHA

body2020
JUDGMENT Mahendar Kumar Goyal, J. - The instant misc. appeal has been preferred assailing the order dated 10.6.2019 passed by the learned Family court, Bundi whereby the application filed by the appellant under Order 9 Rule 13 CPC has been dismissed. 2. Facts as emerge from the perusal on record are that on the petition filed by the respondent-husband under Section 13 of the Hindu Marriage Act, 1955, the learned Family Court, Bundi, vide its judgement dated 30.3.2016, passed ex-parte decree of divorce against the appellant. On coming to know of the ex-parte decree against her, the appellant filed an application under Order 9 Rule 13 CPC for setting aside the same pleading that she was never served with the notices of the divorce petition resulting into the ex-parte decree. The application has been rejected vide order impugned as stated hereinabove. 3. It is contended by learned counsel for the appellant that the respondent-husband, in spite of having knowledge that the appellant-wife was residing at New Delhi and was serving there, deliberately and intentionally shown the appellant to be resident of Sahibabad, District Gaziabad (UP) in the cause title. Therefore, the summon of the appellant sent through registered post at the wrong address could not have been reckoned as 'sufficient service' when the envelope was received back with the endorsement 'refused'. It was submitted that while rejecting the application, the learned Family Court did not appreciate that the Postman (CW1) has categorically stated during his deposition that he was unaware as to who has refused to accept the registered letter containing summon. It was further contended that the learned Family Court did not appreciate the other relevant evidence filed by the appellant in the shape of rent note to show that at the relevant time, she was residing at Delhi and not at Sahibabad, District Gaziabad. It was, therefore, prayed that the order dated 10.6.2019 as well as the ex-parte decree dated 30.3.2016 be set aside. 4. Per contra, learned counsel appearing for the respondent contended that at the relevant time, the appellant was residing at Sahibabad, District Gaziabad and the learned Family Court has rightly passed ex-parte decree of divorce against her as she did not appear deliberately in spite of service of notices upon her. Heard learned counsel for the parties and perused the record. 5. Heard learned counsel for the parties and perused the record. 5. Perusal of the divorce petition filed by the respondent on 20.7.2015 reveals that it was categorically stated in the petition itself that the respondent has left the matrimonial home on 25.5.2012 for New Delhi, i.e. her "pihar' and was doing service there. When confronted on this aspect, learned counsel for the respondent could not render any satisfactory explanation as to why in spite of such averment in the petition, the respondent was shown to be resident of Sahibabad, District Gaziabad (UP) in the cause title of the divorce petition. In these circumstances, the learned Family Court erred in presuming service of summon on the appellant sufficient on account of the registered envelope returning with remark 'returned' as it was sent at the wrong address. Further, there was no occasion for the learned Family court to have disbelieved the statement of the Postman, who as CW-1, categorically stated that when he went to serve the registered summon on 7.8.2015 at the address of Rajendar Nagar, Sahibabad, District Gaziabad, the house was locked and on the next day i.e. 8.8.2015 when he went there, the person present there refused to accept the registered letter and he feigned ignorance as to identity of that person. He has further stated that when he went again on 21.8.2018 to deliver the registered AD envelope received from the Court of learned Family court, Bundi at the same address, the person present there informed that the appellant- Swati Agarwal was not residing at that address. His testimony remained un-impeached during the course of his cross examination. Thus, we have no hesitation in holding that the appellant was not served with summon of the divorce petition and she was prevented from attending the proceedings by sufficient reason; therefore, the order impugned dated 10.6.2019 is liable to be quashed and aside. 6. The civil misc. appeal is allowed accordingly. The order dated 10.6.2019 is set aside. The application filed by the appellant under Order 9 Rule 13 CPC is allowed. The ex-parte judgement and decree dated 30.3.2016 passed by the learned Family Court, Bundi in Civil Suit no. 164/2015 (CIS No. 515/2015) is set aside. The parties are directed to remain present before the learned Family Court, Bundi on 11 th February, 2020.