Orissa High Court
Monalisha Khosla vs Tapan Kumar Parichha on 1 July, 2024
Author: Arindam Sinha
Bench: Arindam Sinha, M.S. Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
MATA No.81 of 2022
Monalisha Khosla .... Appellant
-versus-
Tapan Kumar Parichha .... Respondent
Learned advocates appeared in the case:
For appellant : Mr. Laxman Pradhan, Advocate
For respondent : Mr. R. L. Pattnaik, Advocate
CORAM:
THE HON'BLE MR. JUSTICE ARINDAM SINHA
AND
THE HON'BLE MR. JUSTICE M.S. SAHOO
JUDGMENT
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Date of hearing and Judgment: 1st July, 2024
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ARINDAM SINHA, J.
1. Appellant, whose marriage stood dissolved by judgment dated 5th
August, 2021 of the Family Court, made ex parte against her, is
aggrieved. She had applied for setting aside of the judgment. The Family
Court on order dated 13th January, 2022 dismissed her application. Hence,
she seeks interference in appeal in respect of both, the order and the
judgment.
2. Mr. Pradhan, learned advocate appears on behalf of appellant and
submits, several grounds were taken in the application for setting aside
the judgment made ex parte against his client. At the material time there
were talks of settlement and apprehending mischief, his client did not
accept the summons. It was an act of ignorance. Her learned advocate in
the Family Court also took other grounds on facts. The notice was not
affixed to her door and, the application for setting aside the decree was
made promptly, within prescribed period of limitation. He submits
further, on merits there are good grounds for reversing impugned
judgment. The parties are Christian. There could not have been resort to
proceeding under Special Marriage Act, 1954. The Divorce Act of 1869
is applicable. Unless there is interference in appeal his client will suffer
hardship inasmuch as there is the matter of maintenance, for both, of
herself and the daughter, who is with her. No direction was made.
3. Mr. Pattnaik, learned advocate appears on behalf of respondent
and submits, it will appear from impugned order that there were several
attempts to serve. Service of summons by post and process server were
undertaken by the Court, at instance of his client. The postal article was
returned on endorsement 'Refused'. Report of the process server was also
MATA no.81 of 2022
of refusal. Appellant is not entitled to maintenance and the daughter is
being taken care of by his client.
4. His client had relied on judgment dated 29th September, 2021
of the Supreme Court in Vishwabandhu v. Sri Krishna and another
[Arising out of Special Leave Petition (Civil) D no.1855 of 2020]. By
said judgment the Supreme Court dismissed the application under order
IX rule-13, Code of Civil Procedure, 1908 by relying upon sub-rule (5) in
rule 9 of order V. Paragraph-19 from the judgment is reproduced below.
"19. The summons issued by registered post was received
back with postal endorsement of refusal, as would be clear
from the order dated 19.02.1997. Sub-rule (5) of Order V
Rule 9 of the Code states inter alia that if the defendant or
his agent had refused to take delivery of the postal article
containing the summons, the court issuing the summons
shall declare that the summons had been duly served on
the defendant. The order dated 19.02.1997 was thus
completely in conformity with the legal requirements. In a
slightly different context, while considering the effect of
Section 27 of the General Clauses Act, 1897, a Bench of
three Judges of this Court in C.C. Alavi Haji vs. Palapetty
Muhammed and Anr. made following observations:-
14. Section 27 gives rise to a presumption that service of
notice has been effected when it is sent to the correct
address by registered post. In view of the said presumption,
MATA no.81 of 2022
when stating that a notice has been sent by registered post
to the address of the drawer, it is unnecessary to further
aver in the complaint that in spite of the return of the notice
unserved, it is deemed to have been served or that the
addressee is deemed to have knowledge of the notice.
Unless and until the contrary is proved by the addressee,
service of notice is deemed to have been effected at the time
at which the letter would have been delivered in the
ordinary course of business. This Court has already held
that when a notice is sent by registered post and is returned
with a postal endorsement "refused" or "not available in
the house" or "house locked" or shop closed" or
addressee not in station", due service has to be presumed.
[Vide Jugdish Singh v. Natthu Singh : State of M.P. vs.
Hiralal and Ors. and V. Raja Kumari vs. P. Subbarama
Naidu and Anr.]."
(emphasis supplied)
There should be no interference with said order, to result in dismissal as
well of the appeal in respect of impugned judgment.
5. Having perused materials on record we propose to first deal with
grounds in the appeal taken against order dated 13th January, 2022,
dismissing appellant's application made under order IX rule 13.
Appellant had been cross-examined. Her father also deposed to
corroborate. The Family Court disbelieved contentions of appellant made
by pleadings and from the box. The contentions were firstly that the
MATA no.81 of 2022
services on the summons were refused by her thinking it was an act of
mischief. This contention, if to be believed, must necessarily be seen as
respondent inferring mischief upon the postman coming to deliver a
registered postal article and the process server of the Court approaching
her to serve the summons. These two incidents of service cannot give
impression of mischief, even to a person who is illiterate. The Family
Court found appellant is a teacher and her father, a practicing advocate.
6. Above facts regarding service of summons by registered post and
through process server, both refused by appellant are undisputed.
Submission of respondent on reliance of Vishwabandhu (supra) was
correctly accepted. Sub-rule (5) in rule 9 of order V provides for
situation, where service of summons is refused. The law also requires
finality of judicial proceedings. The Code has amply provided for
opportunity to a defendant to contest civil proceedings. Under order V, on
refusal to accept service of summons the Court can declare good service.
Appellant having refused the summons did not soon thereafter approach
the Family Court. She having done so in prescribed time of 30 days after
impugned order was made gives rise to lawful presumption that she was
aware of the proceeding going on and surfaced in Court after it stood
decided ex parte against her.
MATA no.81 of 2022
7. Findings of the Family Court appear to be correct as based on the
pleadings in the application for setting aside the judgment and evidence
adduced. As such, we confirm impugned order dated 13th January, 2022.
Having done so, we cannot and will not go behind the order, to visit the
judgment on merits. Regarding appellant's claim for maintenance, she
must find her remedy.
8. The appeal is found to be without merit and is dismissed.
( Arindam Sinha )
Judge
( M.S. Sahoo )
Judge
Prasant
Signed by: PRASANT KUMAR SAHOO
MATA no.81 of 2022
