Jharkhand High Court
Neetu Kumari @ Nitu Devi @ Nitu Pandey @ ... vs Hari Sadhan Pandey on 30 January, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.151 of 2022
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Neetu Kumari @ Nitu Devi @ Nitu Pandey @ Lalita --- Appellant
Versus
Hari Sadhan Pandey ----- Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Pandey Neeraj Rai, Adv.
Mr. Rohit Ranjan Sinha, Adv.
Mr. Akchansh Kishore, Adv.
Mr. Saurabh Sagar, Adv.
For the Respondent : Mr. Amitabh Prasad, Adv.
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Per R. Mukhopadhyay, J.
11/30.01.2024 Heard Mr. Pandey Neeraj Rai, learned counsel
appearing for the appellant and Mr. Amitabh Prasad, learned
counsel appearing on behalf of the respondent.
2. This appeal is directed against the order dated
18.08.2021 passed by learned Principal Judge, Family Court,
Bokaro in Civil Misc. Case No.04/2020, whereby and
whereunder the application preferred by the appellant under
Order 9 Rule 13 CPC for setting aside the ex-parte judgment
and decree dated 03.12.2016 and 07.12.2016 respectively, has
been dismissed.
3. Submission has been advanced by learned counsel
appearing for the appellant that only on account of the fact that
the appellant had changed her address during the intervening
period 31.05.2012 and 5.5.2013 notice could not be served
upon the appellant either in the restoration of the Suit or in
the Suit which was finally restored. It has also been submitted
that on 07.11.2014 it has been indicated by the learned court
below that service report is not proper. Learned counsel further
submits that the appellant does not read newspaper and
therefore the publication of the notice in the daily newspaper
'Prabhat Khabar' Dhanbad Edition has escaped her attention
and in view of the fact that the appellant was never aware about
the restoration of the Suit and in consequence ex-parte
judgment and decree passed in T.M.S. No.108 of 2012 in favour
of the respondent be set aside. Learned counsel for the
appellant has also relied upon Order 5 Rule 20 of the CPC and
has submitted that the said provision has not been followed by
the learned court below.
4. Mr. Amitabh Prasad, learned counsel appearing for
the respondent has submitted that though it is stated that on
15.7.2012 the address of the appellant was changed but at the
same time one should not lose sight of the fact that the
appellant was residing within the jurisdiction of the same
Police Station in the District of Dhanbad and therefore the
ground which has been taken by the appellant is frivolous.
5. It appears that on 3.5.2012 a Suit was preferred by
the husband of the appellant (respondent herein) for
annulment of marriage. In the said Suit on notice the appellant
had appeared. However, on 5.5.2013 due to non-appearance of
the respondent herein the Suit was dismissed for default.
During the intervening period of institution of Suit and its
dismissal on the ground of default the appellant had already
changed her address on 15.7.2012 which would further be
evident from the Aadhar Card which was issued on 1.7.2014
indicating her new address. After dismissal of the Suit on the
ground of default a restoration application was preferred by the
respondent on 1.6.2013 pursuant to which a notice was issued
to the appellant herein on 26.11.2013. The ordersheet dated
23.11.2014 records that the notice has remained unserved. On
8.2.2014 paper publication was resorted to and a notice was
published in Dhanbad Edition of daily newspaper 'Prabhat
Khabar'. Since in spite of paper publication the appellant did
not appear, on 9.3.2014 ex-parte order was passed restoring
the Title Matrimonial Suit No.108 of 2012. After the Suit for
annulment of marriage was restored, notice was issued in the
Suit to the appellant on the address in which she was earlier
staying on 12.8.2014 and the ordersheet dated 7.11.2014
indicates that service report is not proper. On 22.11.2014 once
again paper publication was resorted to in 'Prabhat Khabar'
Dhanbad Edition and since the appellant did not appear on
8.1.2015 the Suit was fixed for hearing ex-parte and on
3.12.2016 the ex-parte judgment for annulment of marriage
was passed in favour of the respondent herein.
6. The factual aspects of the case have been
considered by the learned court below in the order dated
18.8.2021. It appears that though there has been a change in
address as stated by learned counsel for the appellant prior to
dismissal of the Suit for default but it appears that the changed
address also comes within the jurisdiction of the same Police
Station. It therefore appears that merely on the excuse that the
appellant does not read newspaper and therefore she was
unaware about the notice published in the daily newspaper
'Prabhat Khabar', the same cannot be a ground for setting
aside the ex-parte decree under Order 9 Rule 13 CPC.
7. Learned court below, as noted above, has
considered all aspects of the matter and thereafter had rejected
the application preferred by the appellant. We do not find any
reasons to conclude otherwise and consequently this appeal
also stands dismissed.
(Rongon Mukhopadhyay, J.)
(Deepak Roshan, J.)
Shamim/-
