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Judgment
MATA No.28 of 2024 and I.A. no.33 of 2024
Mr. Jena, learned advocate appears on behalf of appellant-wife. With reference to returned postal article bearing notice of appeal he submits, in spite of several attempts at service the Postman could not serve and made endorsement ‘Addressee out of station. Return to sender.’ He relies on illustration (f) in section 114 of Evidence Act, 1872 and section 27 in General Clauses Act, 1897 to submit, there be record of good service. He submits further, there be interim order of stay of operation of impugned ex parte judgment dated 7th April, 2023 as respondent-husband is looking to get remarried.
It appears from endorsement made by the Postman that there was somebody at the address, who gave out information that respondent-husband is out of station. Following decisions of the Supreme Court in C. C. Alavi Haji v. Palapetty Muhammed, reported in (2007) 6 SCC 555, paragraph 14, State of M.P. v. Hiralal, reported in (1996) 7 SCC 523, paragraph 1 and M/s. Madan and Co. v. Wazir Jaivir Chand, reported in AIR 1989 SC 630, paragraph 6, we are satisfied that the situation amounts to good service.
Nevertheless, Mr. Jena is requested to communicate this order to the learned advocate, who had represented respondent-husband in the Family Court, either by registered post/speed post with A.D. or otherwise and file the acknowledgement on adjourned date. We make it clear we shall proceed with the appeal irrespective of representation/appearance by respondent-husband. We are surprised, the lower Court record has not been produced. It be produced.
List on 2nd April, 2024. Impugned judgment dated 7th April, 2023 will remain stayed till disposal of the appeal.
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