Mayank Sharma vs Sugandh Misra

V.K. Bist, J

The appeal is directed against judgment and order dated 18.07.2018 passed by the learned Judge, Family Court, Udham Singh Nagar in Case No.48 of 2016, “Smt. Sugandh Misra vs. Mayank Sharma”, has been filed under Order 9 Rule 13 of the C.P.C. alongwith delay condonation application for setting aside the ex-parte judgment and decree dated 30.03.2016.

Brief facts of the case are that the appellant filed a divorce petition under Section 13 of the Hindu Marriage Act before the Judge Family Court, Udham Singh Nagar being Case No.475 of 2015, “Mayank Sharma vs. Smt. Sugandh Misra”. The service upon the respondent had been effected through publication, but before service was effected through publication, the satisfaction was no2t recorded by the learned Judge, Family Court, that the respondent wife is avoiding the service. The learned trial Court, after service of summons upon the respondent through publication, proceeded ex-parte against her and allowed the divorce petition by judgment and order dated 30.03.2016. When the respondent came to know about the ex-parte decree dated 30.03.2016, she moved an application for setting aside the ex-parte decree under Order 9 Rule 13 of the C.P.C. alongwith delay condonation application. There was a delay of 07 months 17 days in filing the application for setting aside the ex-parte decree. Objections were filed by the appellant. The learned Judge, Family Court vide impugned judgment and order dated 18.07.2018 allowed the delay condonation application and set-aside the ex-parte decree against the respondent.

We have heard learned counsel for the appellant and perused the impugned judgment. The learned Judge, Family Court has recorded the finding that the delay of 07 months 17 days has been explained sufficiently and the service was not effected properly upon the respondent. The learned Judge, after placing reliance upon the judgment of Hon’ble Apex Court in the case of Collector, Land Acquisition, Anantnag vs. Mst. Katiji, reported in

(1987) 2 SCC 107, allowed the delay condonation application. No prejudice has been caused to the appellant.

Rule 20 of Order V provides for substituted services, which is extracted herein below:

“20. Substituted service- (1) Where the Court is satisfied 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, the Court shall order 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 is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. [(1-

A) Where the Court acting under sub-rule (1) 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.]

(2) Effect of substituted service.- Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

(3) Where service substituted, time for appearance to be fixed.- Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.”

On perusal of material available on record, it would reveal that the learned Judge, Family court had not recorded its satisfaction and effected the service of summons on respondent by publication in a local news paper.

It seems to us that the substituted service was effected upon the respondent purposely to obtain an ex-parte decree of divorce.

It is settled preposition of law that no one should condemn unheard and as far as possible opportunity of hearing should be afforded to all the concerned parties. Thus, in view of the above and from the perusal of the impugned judgment, we find that there is no illegality in the impugned judgment. The Appeal lacks merit. Consequently, the Appeal stands dismissed.

No order as to cost.