Chattisgarh High Court
Smt. Sandhya Pawar vs Khilawan Rao Pawar on 3 August, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
F.A.(MAT) No. 52 of 2022
Smt. Sandhya Pawar, W/o. Shri Khilawan Rao Pawar, Aged About 40
Years, R/o. Presently Resided At C/o. Yashwant Rao Mahadik, Near
Barood Kothil, Kushalpur, Raipur, Tahsil And District Raipur (C.G.)
(Above Address Was Wrongly Mentioned By The Respondent-
Khilawan Rao Pawar) Correct Address Are As Under:
Occupation-Service (Guest Teacher) In Government Higher
Secondary School Mohandi, Vikas Khand Bagbahra, Distt.
Mahasamund (C.G.)
Present Address- Village- Mohandi, Vikas Khand - Bagbahra, Vikas
Khand Bagbahra Distt. Mahasamund (C.G.)
---- Appellant
Defendant
Versus
Khilawan Rao Pawar, S/o. Late Shri Ranjit Rao Pawar, Aged About 44
Years, R/o. Village Baragibhedi, Post - Bholapur, P.S. Chhuriya, Tahsil
And District Rajnandgaon (C.G.)
---- Respondent
Plaintiff
For Appellant : Mr. Vivek Bhakta, Advocate
For Respondent : None
Hon'ble Mr. Justice Goutam Bhaduri &
Hon'ble Mr. Deepak Kumar Tiwari
Judgment on Board
Per Goutam Bhaduri, J.
03-08-2022
1. Even after repeated calls, no representation is made on behalf of the
respondent. The case was passed over, but eventually the efforts of
hearing both the parties were futile, as the counsel absented to
appear on behalf of the respondent.
2. Heard
3. On the earlier occasion, both the appellant and respondent were
directed to appear in person. They appeared and thereafter they were
directed to place on record the source of income and assets which are
held by them at present. The appellant/wife Smt. Sandhya Pawar has
filed the documents; however, neither the affidavit nor any documents
have been filed on behalf of the respondent.
4. The present appeal is against the judgment & decree dated
06.04.2019 passed by the Family Court, Rajnandgaon, wherein an
exparte judgment & decree was passed in favour of the husband.
5. Learned counsel for the appellant would submit that the appellant was
working as Guest Lecturer at Government Higher Secondary School
Mohandi, Block Bagbahra, District Mahasamund, as such, the notice
which was issued to her in respect of the divorce petition was not
served in person to her. Therefore, the learned Family Court fell in
error to proceed exparte against the appellant/wife. He would submit
that as per the provisions of Order 5 Rule 12 & 15 of C.P.C. the notice
was required to be served in person and in absence thereof no valid
notice can be deemed to have been served. In a result, the exparte
judgment & decree is required to be set aside by giving an opportunity
of hearing to the appellant.
6. We have heard learned counsel for the appellant and perused the
records of the Court below.
7. Perusal of the records of the Court below would show that the exparte
proceeding was drawn on 06.03.2019 on a report of the process
server which purports that when the notice was issued to be served to
the respondent on an address which is shown of Raipur, on
22.02.2019 an enquiry was made. On an enquiry, the defendant/wife
was not found and her mother who is aged about 60 years was found
available. She made an endorsement that her daughter/ appellant do
not stay there and stays outside. Consequently, the mother refused to
take the notice. On such development, the process server returned
the process with an endorsement that in absence of the wife since the
mother who was living in joint with the daughter has refused the
notice. The Family Court by its order dated 06.03.2019 observed that
since the mother who was living in joint with the daughter had refused
to accept the notice, therefore, it would be a deemed service of notice.
8. Order 5 Rule 15 purports when in a suit the defendant is absent from
his residence at the time when the service of summons is sought to be
effected on him at his residence and there is no likelihood of his being
found at the residence within a reasonable time and he has no agent
empowered to accept the service of the summons on his behalf,
service may be made on any adult member of the family, whether
male or female, who is residing with him. The plain reading of the Rule
15 of Order 5 of C.P.C. shows that in order to hold the proper service
under Order 5 Rule 15, the condition must be satisfied that the
absence must be from the residence and not a place of business and
further there is no likelihood of his being found within a reasonable
time. The word "reasonable time" denotes that if the person is absent
from his/her residence, then all possible enquiries are required to be
made to find out as to when he is likely to return at his/her residence.
9. The service report of the process server only contemplates that when
the notice was issued, the mother of the wife was found and she made
an endorsement that her daughter i.e. the wife resides outside. The
said facts prima facie are lamented by a document which is filed
alongwith this appeal to show that on 22.02.2019 she was discharging
the job at Government Higher Secondary School, Mohandi and a copy
of the certificate issued by the Principal of the School has been
attached with this appeal. The endorsement of the process server do
not contemplate that Smt. Sandhya Pawar was residing at the given
address and an enquiry was made as to when she would return.
Therefore, the primary requirement as required under Order 5 Rule 15
of C.P.C. were not satisfied. In the likewise cases before the Delhi
High Court reported in AIR 2001 DELHI 272 (R.K.Sharma v. Ashok
Nagar Welfare Association & Co.) at para 24, the Court made the
following observation, which are quoted herein below :
"24. Rule 15 of Order 5 of the Code empowers the
process server to serve the summons on any adult
member of the family provided at the time of service
the defendant is absent from his residence, when
service of summons is sought to be effected and
there is no likelihood of his being found at the
residence within a reasonable time and he has no
agent empowered to accept the service. This is not
the position in the instant cases, since process server
did not even bother to make repeated effort to affect
personal service on the defendants. He even did not
bother to record on the summons that there was no
agent available. He also did not bother to state that
persons receiving summons were adult male
members of the family of the defendants."
10. Applying the principles, which has been laid down under Order 5 Rule
15 of C.P.C. we are of the view that the learned Family Court while
proceeding exparte on 06.09.2019 failed to abide by the requirement
under Order 5 Rule 15 and further in the judgment & decree dated
06.04.2019 though the decree reflects that the plaintiff is represented
in self and the defendant is also represented in self, but it contradicts
the order sheet of the Family Court itself that the wife/ appellant was
not present when the decree was drawn. In a result, the judgment &
decree dated 06.04.2019 is set aside. The case is remanded back to
the Family Court, Rajnandgaon. The parties may appear before the
Family Court, Rajnandgaon, on 13.09.2022.
11. Accordingly, the appeal is allowed. The Registry is directed to send
back the original record of Civil Suit No. 04A of 2019 forthwith to the
learned Family Court, Rajnandgaon.
Sd/- Sd/-
(Goutam Bhaduri) (Deepak Kumar Tiwari)
Judge Judge
Aks
Head Note
