Girjesh vs Sandhya
2021 Latest Caselaw 8042 MP

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            THE HIGH COURT OF MADHYA PRADESH
                       BENCH AT INDORE
           (S.B.: HON'BLE Mr. JUSTICE VIVEK RUSIA)
                   Miscellaneous Petition No.4274/2021
 Petitioner:-               Girjesh S/o Devilal Damami,
                            Aged-37 years, R/o-Chandrapura, Tehsil-Rampura,
                            District-Neemuch (M.P.)
                            Versus
 Respondent:-               Sandhya W/o-Girjesh Damami,
                            Aged-35 years, R/o-Chandrapura, Tehsil-Rampura,
                            District-Neemuch (M.P.)
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      •   Shri Abhishek Tugnawat, learned counsel for the petitioner.
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                                         ORDER

Indore, Date: 01.12.2021:

The petitioner/husband has filed the present petition under Art. 227 of the Constitution of India, being aggrieved by order dated 27.09.2021 whereby the application filed by the respondent/wife under Order 09 Rule 13 of the C.P.C. has been allowed and exparte judgment and decree dated 14.02.2020 has been set aside.

2. Facts of the case in short are as under:-

i. The marriage of the petitioner and respondent held 10 years ago under Hindu rituals and customs. Out of their wedlock respondent gave birth to a female child who is at present is 9 years old. The respondent is working as ASHA Karyakarta in gram panchayat, Chandrapura District- Neemuch. A dispute arose between husband and wife, and they have started living separately. Mediation and conciliation took place between them, but failed . Hence the petitioner filed a petition under Section 13 of the Hindu Marriage Act before the Second Addl. District Judge, Manasa, District-Neemuch seeking dissolution of marriage. Notice was issued to the wife respondent and despite service she did not appear on dated 09.01.2020 accordingly she was proceeded ex-parte. Learned Addl. District Judge has passed an exparte judgment and decree dated 14.02.2020 for dissolution of marriage.

ii. The petitioner came to know about the aforesaid decree hence filed

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an application under Order 09 Rule 13 of the C.P.C.for setting aside expart judgement alleging that no notice was ever served to her and the petitioner in collision with the postal authorities had managed to submit a false service report. The respondent filed a reply to the aforesaid application by denying the allegations. Vide order dated 27.09.2021 the learned Second Addl. District Judge, Manasa, Neemuch has set aside the judgment and decree and fixed the case for biparty hearing. Hence, the present petition before this court.

3. Shri Tugnawat learned counsel for the petitioner submits that learned court has wrongly set aside the exparte decree on the ground that no evidence has been reduced by the petitioner to establish service of notice to the respondent. In support of his contention, he relies on the judgment passed by Apex Court in case of Jagdish Singh V/s Natthu Singh reported in the year 1992 Vol.-1 SCC 647 in which it is held that the notice must be presumed to have been served as contemplated by Section 27 of the General Clauses Act,when the appellant therein refused to accept the notice. It is further submitted that it is not mandatory to examine the process server or a postman in case of refusal of notice. Heard.

4. The petitioner filed a petition under section 13 of the Hindu Marriage Act in which vide order dated 18.11.2019 learned Court issued the notice to the respondent for appearance on 09.01.2020. After payment of process fee notice number 670 was issued and that was returned with a note of process server that the respondent has refused to accept the notice. The court has observed that since there is no signature of witnesses therefore, the report such report is unacceptable. The provisions of Rule 52 (1) of the Civil Courts Act,1958 is reproduced below:-

"A party shall not ordinarily be required to supply an identifier for the purpose of serving a summons or notice or any other process, whether issued by any subordinate Court of the High Court or received from a Court outside its jurisdiction, on a defandant, respondent, witness or other person and the serving officer shall serve the summons, notice or process after

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due enquiry as to the identity of the person on whom, or the house or property where the same is to be served. The serving officer shall, where he is unable to serve the process, obtain, whenever possible, the endorsement by signature or thumb impression of at least two persons of the locality.

5. In view of the aforesaid rule that the service officer shall where he is unable to serve the process, obtain whenever possible the endorsement by signature or thumb impression of at least two persons of the locality. Therefore, when the process server was unable to serve the notice due to refusal then he ought to have obtain the signature of two persons of the locality. In absence of the aforesaid compliance the learned court has not committed any error while setting aside the exparte judgment. Hence, the Miscellaneous Petition is dismissed.

( VIVEK RUSIA ) JUDGE Ajit

AJIT Digitally signed by AJIT KAMALASANAN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh,

KAMALAS 2.5.4.20=156c9cedca1b74d671db9f220a5e3e d6cba241effad892107d95ef0a1afc55b4, pseudonym=CFDFD9C36711CA738F527A5D 61A1EE901C09EF29,

ANAN serialNumber=7F0BEE2D78BD57DA058F3247 441C87E7E0817FB61F5E2ABCAEE63CAAA7B 3B9FF, cn=AJIT KAMALASANAN Date: 2021.12.06 14:44:52 +05'30'