Neena Soni vs Rakesh Soni
2004 Latest Caselaw 1047 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the order dated 31.07.2003 of the Additional District Judge, Delhi in Misc.Case No.19/2001/94 whereby the learned Judge has dismissed the application of the respondent herein under Order 9 Rule 13 CPC.

2. Brief facts of the case as noted by the Additional District Judge are as follows:-

"....... applicant Along with her daughter was residing at her parental home since 2/11/92. The applicant was residing separately from the petitioner when applicant made complaint to women cell. It is stated in the application that petitioner/non-applicant had sent an undated letter by regd.post A.D. as well as under UPC in which he had exposed his malafide intentions and the applicant replied the said letter, vide reply dated 16/3/93. Thereafter applicant received a notice from the counsel of petitioner and the applicant also replied the same. That on 9/10/94, in the morning father of applicant went to house of petitioner for making a request for reconciliation but there the father of non-applicant/petitioner refused to talk to father of applicant and passed remarks that they now have no relations with respondent which made her father suspicious and with the help of their counsel came to know from court record that non applicant had obtained an exparte decree against the application on 12/8/94. Consequently, present application was moved on 12/10/94 stating that the applicant was never served in this case nor she refused to accept service of registered letter and summons and she had no knowledge about the proceedings pending in the court and the non-applicant had manipulated the refusal of the application on registered cover envelope and the report of the process server is also manipulated by the petitioner/non-applicant by playing fraud on the applicant. It was prayed that ex parte decree kindly set aside.

The petitioner/non applicant filed reply to the application and took some preliminary objections, on merits the non applicant averred that it is a white lie that the father of applicant ever came to his house on 9/10/94 and father of non applicant remarked that now topic is over. There was no attempt for reconciliation after the applicant left the matrimonial home. It was further averred that the father of non applicant was doing private job and he was not present at home in the morning of 9/10/94. It was averred in the reply that summons through regd AD were refused by the applicant on 29/1/94 and through process server on 24/2/94.

It was further averred that summons as well as copy fo petition were pasted at the site as per the report of the process server on the refusal on 24/2/99. It was averred that process server went to house of applicant on 20/1/94 and again Sh.Ashok Kumar Yogi went on 24/2/94 and the applicant refused to accept the summons. It was averred that process server would have manipulated the report after 20/1/94 and there was no question for delaying it till 24/2/99. It was further averred that the applicant had knowledge about the pendency of the present applicationand she refused to accept summons as well Regd.A D deliberately. It is prayed that the application be dismissed.

From the pleadings of the parties in the petition/proceedings u/o 9 r 13 CPC following issues were framed by ld. Predecessor:

I) Whether the respondent/ applicant/JD was not duly served with the notice of petition as alleged? OPP.

II) Whether the ex parte decree dated 12/8/94 is liable to be set aside? OPP

III) Relief.

The applicant examined herself as AW1, Sh.Kanwal Tiwari, Smt.Rajni Wadhwa as AW-3, Sh.Manjit Singh PRI Inspector as AW4 and Sh.Kushal Chand Wadhwa as AW5, whereas, the non/applicant petitioner has examined himself as OPW1, Sh.Ashok Uogi as OPW2, Sh.Ishwar Mishra as OPW3 and Sh.O.P.Soni as OPW4."

3. Nobody appears for the respondent. It is contended by counsel for the appellant that appellant was never served with the summons and, therefore, could not have been proceeded ex parte. He submits that the appellant was a teacher by profession and had been attending her school on the days when the so-called summons are stated to have been served upon her.

4. With the assistance of counsel for the appellant, I have gone through the record of the case. He draws my attention to the statement of AW-2, Kanwal Tiwari who is the Superintendent, DAV School, Pitam Pura, New Delhi and states on oath that the record summoned, pertaining to teacher's register has been produced and that the school timings are from 8.00 a.m. to 2.00 p.m. He states that on 20.1.94 the arrival of the appellant in the school is shown in the register at 7.35 a.m. and departure at 2.20 p.m. Similarly, on 25.1.94 the arrival of the appellant is shown as 7.40 a.m. and 2.30 p.m. On 27.1.94 her arrival in the school is 7.35 a.m. and departure is 2.30 p.m. On 28.1.94 her arrival is 7.35 a.m. and departure is 2.30. p.m. On 29.1.94 her arrival is 7.40. a.m. and departure is 2.15 p.m. and on 24.2.94 arrival at 7.55 a.m. and departure at 2.20 p.m. The photo copy of the attendance register is Ex.PW-2/1 and Ex.PW-2/2.

5. AW-3 is Smt.Rajni Wadhwa, mother of the appellant. She denies having refused any Registered letter and has elaborately set out the same in her statement. In cross-examination nothing meaningful has come out to discredit her statement. AW-4 is Shri.Manjit Singh Sethi, Public Relations Inspector who states on the basis of record that letter No.04172 was delivered on 30.12.93 and so was letter No.814285 delivered on 14-2-94. In cross-examination he submits that he has got no personal knowledge of such delivery and he does not know as to whom the deliveries were made to. He admits that the record is on loose sheets tagged together by thread.

6. AW-5 is Kushal Chand Wadhwa is the father of the appellant. He too denies having refused any summons and/or denies the affixation of Exhibit AW-1/R X- I at their residence. OPW II is Ashok Kumar Yogi who is a process server from Civil Nazarat, Tis Hazari, Delhi. He states that he has seen the report which he had prepared to the effect that service was to be effected for 2.3.1994 and that the petitioner herein refused to accept the notice. On 24.2.94 a copy of the summons was affixed on the premises. In cross-examination he admits tht there was no order of pasting of the summons. He admits that he does not know the appellant in person; he cannot identify her in court. He did not request any neighbour to witness the pasting of the summons. He also admits that there was no witness of refusal of summons and admits that the procedure adopted is not in accordance with practice.

7. Having analysed the statement of witnesses and having gone through the judgment under challenge, I find that the trial court has not properly appreciated the material on record and has totally ignored the case of the appellant and the evidence produced in support thereto. Counsel draws my attention to certain judgments in Sushil Kumar Sabharwal Vs. Gurpreet Singh & Ors. ; Bulganin Vs. Apex Apartments Pvt.Ltd. & Ors. ; Sushil Kumar Saha Vs. Juran Chandra Saha, AIR 1993 Guahati 48.

8. Having gone through the case in hand as also the judgments relied upon, I find that the order under challenge cannot be sustained. I, therefore, set aside the judgment and decree dated 31.07.2003 and direct the trial court to dispose of the matter in accordance with law.

9. FAO 677/2003 is allowed and disposed of. No order as to costs.