Nara Ramakka vs Nara Pedda Narasappa

P. Chandra Reddy, C. J.

This appeal is filed by the petitioner in I. A. No. 79 of 1959 in 0. P. No. 79 of 1956 on the file of the District Judge''s Court, Anantapur against the order of the District Judge refusing to set aside the ex parte decree passed against her on 10-1-1957.

The respondent filed 0. P. No. 79 of 1956 for dissolution of his marriage with the appellant alleging unchastity and obtained an ex parte decree. Nearly two years thereafter, the appellant presented a petition giving rise to this appeal with the allegation that she was not aware of the filing of the petition for dissolution of her marriage with the respondent and that a false endorsement was made by the post-man that she refused to receive the registered cover containing the summons. She went into the witness-box to support her case.

The respondent examined himself as R. W. 1 to disprove the case of the appellant that she was unaware of the divorce proceedings and deposed that she was fully acquainted with these proceedings and that she chose to file this petition with a view to enable her to claim maintenance.

The District Judge dismissed this petition with the following observations :

It appears to be more probable as is suggested by the respondent that because the respondent''s sister filed a suit for maintenance against the petitioner''s brother, the petitioner herself filed a suit for maintenance as a counter-blast and that in order to sustain that suit it was necessary for her to file this petition to set aside the decree of dissolution. Therefore, I find that the petitioner has not made out a case for the setting aside of the ex parte decree against her.

Dissatisfied with this order, the appellant brought this matter before us in appeal. It is urged on behalf of the appellant by Sri Pattabhirama Rao that service summons by post could be ordered by Court only when it was established that the summons was returned unserved, and, as, in this case, no attempt was made by the respondent to serve her through Court, Order V Rule 20-A C. P. C. could not be put into effect.

We think that this contention is well-founded. Order V Rule 20-A C. P. C. enacts :

Where for, any reason whatsoever, the summons is returned unserved, the Court may, either in lieu of or in addition to the manner provided for service of summons in the foregoing rules, direct the summons to be served by registered post addressed to the defendant or his agent empowered to accept service at the place where the defendant or his agent ordinarily resides or carries on business or personally works for gain.

An acknowledgment purporting to be signed by the defendant or the agent or an endorsement by a postal employee that the defendant or the agent refused to take delivery may be deemed by the Court issuing the summons to be prima facie proof of service.

It is plain from this rule that it is only in case where the first summons was returned unserved it is permissible to serve the summons on the defendant by registered post. It does not appear from the record that summons was sent earlier to the appellant through Court. The learned judge has not considered this aspect of the matter. He was content to observe that an endorsement by a postal employee that the defendant refused to take delivery of the notice was prima facie proof of service". So far as the latter part of his conclusion is concerned, no exception could be taken because of Order V rule 20-A (2) C. P. C.

We feel, that even de hors this rule, postal service should not be usually ordered, unless the Court is satisfied that every possible step was taken to effect personal service.

In divorce proceedings or proceedings connected with matrimonial affairs, in the interests of justice service should be effected personally. In V. Barnard Vs. Mrs. Averil May Tresslor Barnard, , a special Bench of three Judges of the Madras High Court ruled that in divorce proceedings or proceedings connected with matrimonial affairs, it is not usual to order substituted service, unless the Court is satisfied that every possible step is taken to effect personal service and that in such proceedings, as a general rule, service is required to be made personally. In our opinion, this is a very salutary rule and should be followed by all Courts in regard to these matters.

In this view of the matter, it is unnecessary for us to consider whether even in cases of summons sent by registered post is refused by the defendant, the procedure indicated in Order 5 Rule 17 C. P. C. should be followed and whether the judgment of Rajamannar C. J. in Murugayyan Kangiar v. Murudayyammal, 1956-2 Mad U 86 holding that the clause "where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment" is sufficiently wide to include the case of a defendant refusing to sign the acknowledgment of receipt of a summons sent to him by registered post is correct or not.

For these reasons, we reverse the order of the trial Court, set aside the ex parte decree and direct the lower Court to try and dispose of 0. P. No. 79 of 1956 on merits. The parties will bear their own costs both here and in the lower Court.