Murari Lal vs Smt.Mamta
2021 Latest Caselaw 7411 MP

                                                                   01

           HIGH COURT OF MADHYA PRADESH
                     First Appeal No.49/2017
                   (Murarilal Vs. Smt. Mamta)

Gwalior, Dated: 15.11.2021
      Shri Anil Kumar Saxena, learned counsel for the appellant.

      Shri B.S.Dhakad, learned counsel for the respondent.

      This appeal under Section 19 of the Family Court Act is

directed against the order of the trial Court dated 29.1.2015

rejecting the application filed under Order 9 Rule 13 read with

Section 151 of CPC. The trial Court has earlier passed an ex-parte

order on 15.5.2014 granting maintenance at the rate of Rs.5,000/-

per month to the respondent-daughter-in-law w.e.f. 9.4.2013.

      Facts

necessary for disposal of the appeal in nutshell are to

the effect that respondent- Mamta had married the son of appellant

Pramod in the year 2006. He passed away in 2008. Having not been

paid the maintenance, she filed an application under Section 19 of the

Hindu Adoption and Maintenance Act. At the given address notice

was sent to the appellant initially by ordinary post and thereafter by

registered post. As per the endorsement of the postman on the

envelope Þ ysus ls badkj fd;k ß the service was presumed to have been

effected upon the appellant by the trial Court. Thereafter the trial

Court proceeded to decide the application on merits and ordered

maintenance as aforesaid.

Learned counsel for the appellant tried to persuade this Court

that even assuming that the appellant has refused to take notice, the

said presumption is rebuttable under Section 114 of the Evidence Act.

Since in his evidence on affidavit sworn during the course of the

proceeding he has denied the service of the notice and the

endorsement of the postman, the same ought to have been accepted

by the trial Court, counsel relies upon two orders in the case of Lalita

(Smt.) v. Motilal, 2000 (II) MPWN 30 and Ramesh Chand v. M/s.

Bhopal Bottling Co. Govindpura, Bhopal, 1976 MPWN 107 to

bolster his submission.

Per contra, Shri Dhakad, learned counsel for the respondent-

daughter-in-law contends that in his cross-examination, particularly in

para 7, 9, 10 and 11 the appellant has clearly admitted that envelope

bore the correct address where he is residing with his wife and other

family members. He has never made any complaint against the

postman if he alleged that endorsement on the envelope is wrong. He

also admitted that civil litigation is going on between the appellant

and the daughter-in-law related to partition and apportionment of

share in joint family property of which the appellant is the Karta,

even the wife of the appellant has initiated proceedings against the

respondent-daughter-in-law seeking declaration against her in joint

family property, wherein she has deposed to have had the knowledge

of the instant proceeding instituted by the respondent-daughter-in-law

against the appellant. That apart, the appellant has also admitted that

so far he has not given share to the respondent-daughter-in-law in

para 11. Therefore, regard being had to facts related to the factum of

issuance of notice, report of the process server and the conduct of the

appellant, as well deducible from the aforesaid paragraphs of his

deposition, the trial Court has not committed any illegality while it

accepted the fact of knowledge of the notice to the appellant,

therefore, there is no illegality caused while the Court below rejected

the application filed under Order 9 Rule 13 CPC. Learned counsel for

the respondent also submits that judgments reported in M.P. Weekly

notes do not bear the complete facts, and therefore, the dictum

thereunder though is beyond cavil of doubt, but has no bearing in the

obtaining facts and circumstances of the case.

Upon hearing counsel for the parties, this Court finds

substantial force in the submissions advanced by Shri Dhakad while

supporting the impugned order. This Court has also carefully perused

the order, the evidence led before the trial Court and the judgments

cited by the learned counsel for the appellant. The trial Court has

applied correct principles of law while passing the impugned order

upon due appreciation of the evidence placed on record. There is no

illegality or jurisdictional error warranting interference either on facts

or in law. The first appeal sans merits and is hereby dismissed.

               (Rohit Arya)                   (Deepak Kumar Agarwal)
                 Judge                                Judge
 ms/-


MADHU SOODAN
PRASAD
2021.11.16
09:46:31 +05'00'