Neeru Sharma vs Raj Kumar Sharma and Another

Hasnain Massodi, J.—The present appeal is directed against order dated 26th April, 2005 passed by the learned Additional District Judge

(Matrimonial Cases) Jammu, in application titled Neeru Sharma v. Raj Kumar Sharma and Anr. under Order 9 Rule 13 CPC whereby learned

District Judge has dismissed the application and declined to set aside ex parte judgment and decree. The facts relevant to disposal of the present

Civil First Miscellaneous Appeal may be summarized, in the first instance.

The Respondent No. 1 married the Appellant on 19 September 1999 in accordance with the tenets of Hindu Law. The marital life of the parties

was marred by disputes and differences right from the day first and forced the parties to part company and live separately. The Respondent No. 1

lives at village Patli Tarore Tehsil Samba district Jammu while the Appellant resides at village Prithipur Tehsil and district Jammu at her parental

house.

The Respondent No. 1 on 14th March, 2001 filed a petition u/s 13 of the Hindu Marriage Act, 1980 and on the strength of the averments made

in the petition sought a decree of divorce under the aforesaid provision dissolving the marriage of Respondent No. 1 and the Appellant. Learned

trial Judge, after the petition was listed, directed issuance of notice to the Appellant. The notice was returned with a report that the Appellant had

refused to receive the notice or copy of the petition that was appended to the notice. Learned trial judge recorded the statement of the Process

Server and on 23rd May 2001 recorded his satisfaction that the Appellant/Respondent was aware of the proceedings and was not interested in

contesting the petition. Learned trial Judge accordingly set the Appellant/Respondent ex parte on 23-5-2001; recorded statement of the

Respondent No. 1 and his witnesses S/ Shri Ramji Das and Parveen Sharma on the next date of hearing i.e. 5th July, 2001 and closed the

Respondent No. 1's evidence on the said date itself and proceeded to allow the petition in ex parte on 31-7-2001.

The Appellant Respondent on 16-4-2002 filed an application in terms of Order 9 Rule 13 CPC for setting aside ex parte judgment and decree

dated 31-7-2007. The application was registered and notice issued to the Respondent No. 1 on 17th April 2002. The Appellant filed an

application for impleadment of one Susheela Kumari on the ground that the Respondent No. 1 as per his own showing had married said Susheela

Kumari. The application was allowed and Smt. Kumari arrayed as Respondent No. 2 vide order dated 24 July 2002.

The case set up by the Appellant in the application under Order 9 Rule 13 was that the judgment and decree had been obtained by the

Respondent No. 1 by practising fraud on the Court in connivance with the process server. The Appellant disputed that the process server brought

the copy of the summons to the Appellant or that the summons was ever refused by the Appellant. Learned trial Judge while proceeding against the

Appellant ex parte is said to have not recorded the satisfaction that there was sufficient service of the summons. The learned trial Judge was said to

have given a go bye to the mandate of Order 5 Rule 17. It was averred that the learned trial Judge even taking the report of process server on its

face value, instead of setting the Appellant ex parte ought to have gone for substituted service.

The Respondent on the other hand disputed the claim that the Appellant was not served in accordance with the law. It was pleaded that the

Appellant having been well aware of the judgment and decree ought to have filed the application under Order 9 Rule 13 CPC within one month

from the date the judgment/decree was passed and that the application was liable to be thrown out as not maintainable on the said ground.

The Petitioner stepped in the witness box in support of her application and also examined S/Shri Rumal Chand and Nathu Ram in support of her

case. The Respondent examined Miss Sumeeta Sharma and Rakesh Gupta in support of his case and also appeared in the witness box.

Learned trial Judge on going through the pleadings and the evidence on the file dismissed the application under Order 9 Rule 13 vide order

dated 26-4-2005.

The order dated 26-4-2005 dismissing the application is assailed in the present appeal on the grounds that the order is contrary to law and facts

and that the learned trial Court while dealing with the matter has misdirected itself and not appreciated the mandate of Order 5 CPC in right

perspective. The Court below is said to have mis-appreciated the evidence and failed to make proper evaluation of the statement of the process

server. The trial Court is also said to have erred in rejecting the statement of Romal Chand, Chowkidar of the village. The Appellant is claimed to

have successfully made out a case for setting aside the ex parte judgment decree dated 31-7-2001 and the learned trial Court to have no valid

reason to reject the application.

I have heard the learned Counsel for the parties at length and gone through the trial Court record. The appeal against the order dated 26 April

2005 dismissing the application for setting aside the ex parte judgment and decree dated 31st July 2001 must succeed on the following grounds:

Order 5 CPC deals with issuance and service of summons. Order 5 Rule 16 makes it mandatory for the serving officer to get signatures of the

Defendant to whom the copy of the summons is delivered or tendered on the original summons, as an acknowledgment of the service so made.

Order 5 Rule 17 visualizes a situation where the Defendant may refuse to accept notice or cannot be served. It provides that where the Defendant

or such other person on whom the service can be effected on behalf of the Defendant refuses to sign the acknowledgment, serving officer shall affix

a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on

business or personally works. The serving officer is thereafter to return the original summon to the Court with a report thereon or annexed

therewith stating that he has affixed the copy of the summons and also the circumstances under which he was constrained to affix the copy instead

of delivering it to the Defendant or his agent or such other person to whom it could be delivered on behalf of the Defendant. The serving officer is

further duty bound to convey name and address of the person(s) by whom the house of the Defendant was identified and in whose presence the

copy of the summons was affixed. On closer look at Order 5 Rule 17 it transpires that the serving officer is duty bound to take following steps in

connection with service of the summons.

In terms of Order 5 Rule 16 CPC serve the summons on the Defendant and get his signatures on the original summon as token of service.

If the Defendant refuses to put his signatures on the original summons, to affix copy of the summons on the outer door of the residence of the

Defendant where the Defendant ordinarily resides or the place of his business, etc.

To make a report on the original summon returned to the Court that issued the summons, detailing circumstances that led to his inability to

deliver the summons to the Defendant and his having been compelled to paste the summons on the outer door of the ordinary place of residence of

Defendant or his place of business as the case may be.

To disclose the name and parentage of the person who identified the house of the Defendant.

The intention of the law makers obviously has been not to leave any room for any mischief and a false report by the serving officer and to

ensure that every effort was made to make aware the Defendant of the proceedings commenced against the Defendants. It is to achieve said

objective, that serving officer is not only to detail the circumstances in which the copy of the summons was not delivered to the Defendant but also

the circumstances which led to affixing of copy of the summons on the outer door of the ordinary residence of the Defendant, his place of business,

etc. The requirement to disclose the name of the person who identified the house is to further ensure that the serving officer had gone to the right

place and the Defendant if not ready to accept the copy of the summons, was otherwise made aware of the proceedings and in the event the

Defendant came up before the Court after the ex parte proceedings were initiated, the Defendant could plead that it was not to his place that the

serving officer had come and make the person reported to have identified the Defendants' house to stand in the witness box. In the present case

the serving officer after making the report that the Defendant did not receive copy of the summons has not proceeded to paste the copy of the

summons on the outer door of the Defendant's house or made a report in this regard. Learned trial Judge erred while holding that the requirements

of Order 5 Rule 17 were not mandatory and could be ignored by the serving officer at his whim and caprice with impunity. Learned trial Judge at

receipt of the original summons with the report from the serving officer/process server that the Defendant had refused to receive the summons

ought to have directed the serving officer to paste a copy of the summons on the outer door of the residence of the Defendant and in case the

Defendant would have still stayed away from the proceedings to have thereafter at its discretion proceeded ex parte against the Defendant. Even in

a case where the Defendant fails to appear after the copy of the summons is affixed on the outer door of his ordinary residence, the Court is not

powerless to exercise other options of substituted service contemplated by Order 5 Rule 20 and not rush to proceed ex parte against the

Defendant. This apart, the court in terms of Order 5 Rule 19-A is under obligation to direct in addition to the ordinary mode, simultaneously direct

the summons to be served by registered post acknowledgment due, addressed to the Defendant or his agent as the case may be. In other words

the Court at the time of issuing the summons is also required to direct issue of registered summons. In this case such a course has also not been

followed by the Court. The minutes of the proceedings in the petition u/s 13 and the record thus indicate that Defendant has not been served in

accordance with law. The trial Court was accordingly not justified in initiating ex parte proceedings against the Appellant and thereafter rush to

pass the ex parte judgment/decree dissolving the marriage between the parties. Learned trial judgment completely misdirected herself while

dismissing the application under Order 9 Rule 13 and did not construe mandate of Order 5 Rule 17 CPC in accordance with its letter and spirit.

Learned trial Judge did not make proper appreciation of the testimony of PW Nathu Ram, serving officer/process server whose testimony was

of pivotal importance in the facts and circumstances of the case. The fate of the application under Order 9 Rule 13, as a matter of fact, hinged on

testimony of PW Nathu Ram. The serving officer/process server admitted that the Defendant and her house were identified by none else than

Respondent No. 1. The process server has thereafter introduced one Teerath Ram as chowkidar of the village to have been present at the time

and claimed by Respondent No. 1 to be chowkidar of the village. The Respondent No. 1 did not examine Teerathram to substantiate his claim that

the Appellant was properly identified and served. The learned trial Judge paid scant attention to the testimony of Shri Romal Chand who claimed

to be chowkidar of village Prithipur where the Appellant resides and who is said to have been tendered copy of the summons. PW Romal Chand

emphatically denied that any person named Teerath Ram was chowkidar of village Prithipur and also denied that he was approached by the

process server to identify the house of the Defendant. The learned trial Judge has ignored to give due importance to this part of the statement of the

PW Romal Chand, that it deserved. Learned trial Judge should have been alarmed by the admission made by serving officer Nathu Ram that on

the date, the copy of the summons was said to have been tendered to the Defendant at Prithipur, the village Prithipur did not fall within the

jurisdiction of PW Nathu Ram but was attended by another process server namely Khurshid Mohammad and that the process sever was specially

directed by the section officer to take the summons and he was taken by the Respondent No. 1 on his scooter to the village Prithipur where the

copy of the summons was served. Learned trial Judge should have been equally put on caution by the statement of PW Nathu Ram that it was the

Respondent No. 1 who had informed PW Nathu Ram that the person who met the Respondent No. 1 at village Prithipur was chowkidar of the

area and that PW Nathu Ram was not personally acquainted with the person whose name was disclosed as Teerath Ram by the Respondent No.

1 and identified as chowkidar of the village. There was sufficient material on the file for the learned trial Judge to conclude that there had not been

proper service of summon on the Defendant and that the possibility of mischief having been done could not be ruled out. The Court is expected to

be alive to the fact that rules of procedure are to facilitate the course of justice and not punish or trip people up. Learned trial Judge unfortunately

has also not been conscious of the nature of the proceedings. It was a case against a woman otherwise belonging to an insular section of society, a

section disempowered, deprived and marginalized for centuries together, prone to mischief like one enacted in the present case and that the

imperative of gender justice demanded closer look to the surrounding circumstances in which the ex parte judgment/decree was passed and an

effort visibly made by the Respondent No. 1 to wriggle out of marital obligations and rush for other options.

The evidence on the file was convincing enough to lead the learned trial Judge to the conclusion that there was no proper service to the

Defendant.

For the reasons discussed the appeal is allowed and the order dated April 26, 2005 is set aside. Resultantly the application filed by the

Appellant under Order 9 Rule 13 of CPC for setting aside ex parte judgment and decree dated 31st, July 2001 also succeeds and is allowed. The

trial Court is directed to pick up the threads in the petition u/s 13 of the Hindu Marriage Act 1980 from the date summons was directed to be

issued to the Respondent and take the Appellant/Respondent in the petition to have been served, allow her to file her written statement to the

petition and thereafter proceed in the matter in accordance with the law. The parties are directed to appear before the trial Court i.e. Additional

District Judge (Matrimonial Cases) on 5th May 2010.

The record be send down.