Jharkhand High Court
Ravi Bhushan Seth vs Meena Seth @ Meena Kumari on 27 July, 2001
Equivalent citations: 2002(50)BLJR331, I(2002)DMC219
JUDGMENT Gurusharan Sharma, J.
1. Petitioner filed Matrimonial Title Suit No. 26 of 1993 against opposite party for dissolution of marriage on the ground of desertion and cruelty, which was decreed ex parte on 19.3.1994.
2. On 29.6.1995, opposite party filed an application under Order IX, Rule 13 of Civil Procedure Code, for setting aside the said ex parte decree along with a petition for condonation of delay, which was registered as Misc. Case No. 3 of 1995.
3. By impugned order dated 2.8.2000, said miscellaneous case was allowed, ex parte decree dated 19.3.1994 was set aside and Matrimonial Title Suit No. 26 of 1993 was restored.
4. Petitioner has challenged the aforesaid order in this revision application.
5. Opposite party came out with a case that for the first time on 4.6.1995, when she went to the petitioners house, she was not allowed to enter into and at that point of time, petitioner disclosed to her that he has already divorced her and now he had no relation with her. She became surprised to know about divorce. She wanted to see the decree for verifying the truth. She got records of Matrimonial Suit inspected on 28.6.1995 and on (sic) filed application under Order IX, Rule 13 of the Code of Civil Procedure. She claimed the summons of the suit was not served on (sic) and she had no knowledge or information about the suit and the decree passed the (sic).
6. A perusal of records reveals that in the suit summon was issued both under registered post and in ordinary course. Service report of process server was not received in Court. Order sheet dated 2.9.1997 shows that A.D. of registered notice was received, but without seal of the post office. On the same day, plaintiff filed a petition for publication of notice in daily newspaper "Times of India". The Court allowed the prayer and directed plaintiff to file cutting of such publication. Notice was accordingly published in daily newspaper 'Times of India" published from Patna on 13.9.1993.
6-A. On behalf of petitioner it was contended that after publication of notice for the suit under Order V, Rule 20 of the Code of Civil Procedure, proceeding under Order IX. Rule 13 of the Code at the instance of opposite party for setting aside the ex parte decree passed in Matrimonial Title Suit No. 3 of 1995 was not maintainable. It was further contended that full brother of opposite party was married with full sister of the petitioner and hence, she was aware of the suit and the decree passed therein. Signature of opposite party on the A.D. of notice under registered cover also proved that she had duly received notice, but did not appear and contest the suit.
7. On the other hand, it was contended on behalf of the opposite party that in the present case, provision of Order V. Rule 20 of the Code were not properly complied with and neither service report of summons by process server was received, nor the trial Court accepted service of summons on the defendant under registered cover as valid.
It was further contended that the opposite party in his deposition denied her signature on the A.D. but the petitioner thereafter did not take any step for its comparison with admitted signature of the opposite party by hand writing expert.
8. It is true that when service report of summons issued in ordinary course was not received, the Court was required to direct the plaintiff to take step for fresh service of summons, but it was not done in the present case. Secondly, it appears that the trial Court was not satisfied with the report of summons issued under registered cover as there was no postal stamp thereon and, therefore, the said report was rightly not accepted. But no direction was given to the plaintiff to take step for fresh service of summons by registered cover also.
9. In my opinion, there was no occasion for the plaintiff to file a petition for publication of said notice for the defendant in a newspaper on 2.9.1993, because there was nothing to show at that time that the defendant was avoiding service of summons on her.
10. It is well settled that plaintiff can be directed to take step for service of notice under Order V, Rule 20 of the Code of Civil Procedure only when the Court is satisfied that there was reason to believe that the defendant was 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. The said provision requires the summons to be served by affixing a copy thereof in some conspicuous place in the Court house and also upon some conspicuous part of the house (if any) in which the defendant was known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Where the Court orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper, circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.
11. The order sheet of the suit reveals that the Court has not recorded anywhere its satisfaction regarding service of notice.
12. There is also nothing on record to prove the fact that the service of summons on defendant was duly made and then the case was fixed for ex parte hearing.
13. Order dated 7.10.1993 shows that cutting of publication in the newspaper "Times of India" dated 13.9.1993 was filed in Court, which was directed to be kept on record and thereafter the suit was transferred from the Court of the District Judge to the Court of Second Additional District Judge and the transferee Court after receiving the records fixed the suit for ex parte hearing.
14. In the aforesaid circumstances. I find no reason to interfere with the impugned order. This revision application is, accordingly, dismissed but without costs. Let the lower Court records be sent down to the Court below forthwith.
15. Revision application dismissed.