Prashant Sharma vs Smt. Yogesh Kumari

This appeal has been filed by the appellant-applicant ('the appellant-husband) assailing the Judgment dated 10.08.2018 passed by the learned Family Court No.1, Kota (Rajasthan) whereby the application filed by the appellant -wife under Order 9 Rule 13 CPC for quashing and setting aside the ex-parte Judgment & Decree dated 31.05.2008 passed by the learned Family Court, Kota has been allowed and ex-parte Judgment passed against the appellant-wife has been quashed and set aside.

Learned counsel for the appellant -husband argued that the learned Family Court set-aside the ex-parte decree on erroneous assumptions. The witnesses specifically stated that the notices were served upon the respondent-wife through affixation and the notices were issued one after another, but on the first occasion the mother had not accepted the notice, the registered cover bearing the name of the respondent-wife came with the noting of "refusal" and despite sufficient service, the respondentwife failed to appear. Learned counsel further argued that the process server Subhash Chand who was examined as per directions of this Court, he affixed the notice at the address mentioned in the petition in the presence of the witnesses Jagdish Chand and Kamal Singh. Learned counsel further argued that merely on the ground of irregularity in service of summons, exparte decree cannot be set aside by invoking the provisions of Order 9 Rule 13 CPC. Thus, the finding recorded by the learned Family Court regarding setting aside ex-parte Judgment & Decree is wholly erroneous, illegal and perverse.

Per-contra, learned counsel appearing for the respondent wife opposed the appeal and supported the impugned Judgment passed by the learned Family Court.

Heard learned counsel appearing for the respective parties, perused the impugned Judgment & Decree passed by the learned Family Court and scanned the entire material made available to us.

It is pertinent to note that this Court vide order dated 14.03.2018 directed the learned Family Court to decide the application filed under Order 9 Rule 13 CPC after examining the process server. Thus, the process server Subhash Chand was examined as CW1. Subhash Chand (CW1), process server in his cross-examination admitted that he made the service effected at the instance of the party but on notice Ex.A3 he did not obtain signatures of the applicant as he forgot to get the same due to mistake. This witness admitted that on the notice (Ex.A3), house numbers of the witnesses were not mentioned. The learned Family Court came to the conclusion that on notice (Ex.A2) there is an endorsement that "it is informed by the wife- Yogesh Sharma that she resides with her uncle in Aligarh and on registered envelope (Ex.A4) no endorsement regarding refusal from wife- Yogesh Sharma is found" but there is an endorsement on registered envelope that on 16.10.2007, 17.10.2007, 18.0.2007 and 19.10.2007 Yogesh Sharma was not found and the learned Family Court observed that "on perusal of the statements of the witnesses it is not established that the respondent wife had notice of the date of hearing and there had been sufficient service".

In a case reported in Sushil Kumar Sabharwal vs. Gurpreet Singh & Ors., RLW 2002(4) SC 547, the Hon'ble Supreme Court in para 11 has held as under:-

"The High Court has over looked the second proviso to Rule 13 of Order 9 C.P.C., added by the 1976 Amendment which provides that no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. It is the knowledge of the 'date of hearing' and not the knowledge of 'pendency of suit' which is relevant for the purpose of the proviso above said. Then the present one is not a case of mere irregularity in service of summons; on the facts is a case of non-service of summons. The appellant has appeared in the witness box and we have carefully perused his statement. There is no cross-examination directed towards discrediting the testimony on oath of the appellant, that is, to draw an inference that the appellant had in any manner a notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim which he did not avail and utilise."

The application under Order 9 Rule 13 CPC for setting aside ex-parte Judgment & Decree was filed on the ground of nonservice of summons. The respondent-wife appeared in evidence as AW1 and stated that in any manner she had no notice of the date of hearing.

In the result, the instant civil misc. appeal is accordingly dismissed. The court below is directed to make endeavour to conclude the proceedings expeditiously preferable within six months from the date copy of this Judgment is produced before it.