Basanta Manjari Pattnaik vs Hrusikesh Nayak

Ms. Mohapatra, learned advocate appears on behalf of appellant-wife. She submits, impugned is order dated 15th May, 2023 refusing to set aside ex-parte judgment and decree dated 25th November, 2019. Her client had no notice of the civil proceeding. Impugned order and said exparte judgment and decree be set aside in appeal and the civil proceeding restored for trial with participation of her client.

Mr. Mohanty, learned advocate appears on behalf of respondent-husband and submits, impugned order records there was service of summons made. On top of that his client obtained direction for substituted service and such service was also duly made. In the circumstances, when appellant-wife willfully stayed away from the trial Court and has now come with false plea of summons having not been served upon her, the appeal be dismissed.

Perused the lower Court record and in it the order sheet. Orders dated 16th January 2019 and 9th April, 2019 are reproduced below.

“16.01.2019  Petitioner is present and filed a memo annexing postal receipt further petitioner filed service affidavit. Put up on 9.4.2019 for appearance of respondent and consideration of service affidavit.

09.04.2019 Adv. for petitioner filed a petition praying for substitution of service through paper publication. Heard. Allowed. Draft notice filed. Put up on 24.6.2019 for approval of draft. Office to check and report.”

(emphasis supplied)

On query from Court we are told the service affidavit is at page-42 of the appeal papers. The affidavit is dated 16th January, 2019 sworn by respondent-husband with regard to service of summons. It appears from aforesaid orders dated 16th January, 2019 and 9th April, 2019, the trial Court never considered the service affidavit but allowed the application of respondent-husband for substituted service.

Service of summons has been provided under order-V in Code of Civil Procedure, 1908. Substituted service can be directed, where the Court is satisfied that there is reason to believe the defendant is keeping out of the way for the purpose of avoiding the service or that for any other reason the summons cannot be served in the ordinary way. This satisfaction is not there in said order dated 9th April, 2019. The entire process adopted regarding service of summons is unreliable. As such, we are convinced appellant-wife was denied opportunity to participate at trial.

Impugned order is reversed in appeal to allow the application under order-IX rule13 made by appellant-wife. The order be communicated to the trial Court for parties being noticed on fresh hearing of the proceeding.

The appeal is allowed and disposed of.

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