Basanta Manjari Pattnaik vs Hrusikesh Nayak
2023 Latest Caselaw 15950 Ori

Orissa High Court

Basanta Manjari Pattnaik vs Hrusikesh Nayak on 12 December, 2023

Author: Arindam Sinha

Bench: Arindam Sinha

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                    MATA No.216 of 2023


             Basanta Manjari Pattnaik                .........         Appellant

                                            Ms. Saswati Mohapatra, Advocate


                                        -Versus-

            Hrusikesh Nayak                          .........         Respondent

                                                   Mr. S.S. Mohanty, Advocate

                   CORAM:

                                 JUSTICE ARINDAM SINHA
                                 JUSTICE SIBO SANKAR MISHRA

                                               ORDER

12.12.2023 Order No.

05. 1. Ms. Mohapatra, learned advocate appears on behalf of appellant-

wife. She submits, impugned is order dated 15th May, 2023 refusing to set

aside ex-parte judgment and decree dated 25th November, 2019. Her client

had no notice of the civil proceeding. Impugned order and said exparte

judgment and decree be set aside in appeal and the civil proceeding

restored for trial with participation of her client.

2. Mr. Mohanty, learned advocate appears on behalf of respondent-

husband and submits, impugned order records there was service of

summons made. On top of that his client obtained direction for substituted

service and such service was also duly made. In the circumstances, when

appellant-wife willfully stayed away from the trial Court and has now

come with false plea of summons having not been served upon her, the

appeal be dismissed.

3. Perused the lower Court record and in it the order sheet. Orders

dated 16th January 2019 and 9th April, 2019 are reproduced below.

"16.01.2019 Petitioner is present and filed a memo annexing

postal receipt further petitioner filed service

affidavit. Put up on 9.4.2019 for appearance of

respondent and consideration of service affidavit.

09.04.2019 Adv. for petitioner filed a petition praying for

substitution of service through paper publication.

Heard. Allowed. Draft notice filed. Put up on

24.6.2019 for approval of draft. Office to check and

report."

(emphasis supplied)

4. On query from Court we are told the service affidavit is at page-42

of the appeal papers. The affidavit is dated 16th January, 2019 sworn by

respondent-husband with regard to service of summons. It appears from

aforesaid orders dated 16th January, 2019 and 9th April, 2019, the trial

Court never considered the service affidavit but allowed the application of

respondent-husband for substituted service.

5. Service of summons has been provided under order-V in Code of

Civil Procedure, 1908. Substituted service can be directed, where the Court

is satisfied that there is reason to believe the defendant is keeping out of

the way for the purpose of avoiding the service or that for any other reason

the summons cannot be served in the ordinary way. This satisfaction is not

there in said order dated 9th April, 2019. The entire process adopted

regarding service of summons is unreliable. As such, we are convinced

appellant-wife was denied opportunity to participate at trial.

6. Impugned order is reversed in appeal to allow the application under

order-IX rule13 made by appellant-wife. The order be communicated to the

trial Court for parties being noticed on fresh hearing of the proceeding.

7. The appeal is allowed and disposed of.

(Arindam Sinha) Judge

(S.S. Mishra) Judge

Location: High Court of Orisssa, Cuttack.