Patna High Court
Ragnipriya vs Narendra Pandit on 3 October, 2024
Author: P. B. Bajanthri
Bench: P. B. Bajanthri, Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.651 of 2018
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Ragnipriya, Wife of Narendra Pandit, Resident of Village- Mafi, P.O. and
P.S.- Warisaliganj, District- Nawada D/o Late Tarkeshwar Kumar. At present
residing at Village- Makhdumpur, P.O. and P.S.- Beur (Anisabad) District-
Patna- 800002.
... ... Appellant/s
Versus
Narendra Pandit Son of Arjun Pandit, Resident of Village- Mafi, P.O. and
P.S.- Warisaliganj, District- Nawada.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Prem Ranjan Raj, Adv.
For the Respondent/s : Mr. Nand Kishore Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)
Date : 03-10-2024
Ref:-I.A. No.5557 of 2018
I.A. No.5557/2018 has been filed for condonation
of delay of about 307 days in filing M.A. No.651/2018.
2. For the reasons stated in the application read
with the affidavit, delay of about 307 days in filing M.A.
No.651/2018 stands condoned.
3. Accordingly, I.A. No. 5557/2018 stands
allowed.
4. With the consent of the respective counsels
M.A. No.651/2018 is taken up for final disposal.
5. The present appeal is directed against the ex-
parte judgment dated 17.06.2017 passed in Matrimonial Case
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2/13
No. 197 of 2016 by the Court of Principal Judge, Family Court,
Nawada, whereby and whereunder the learned Court has been
pleased to allow the application for restitution of conjugal rights
under Section 9 of the Hindu Marriage Act, 1955.
6. Briefly stated the fact of case is that marriage
of appellant with respondent was solemnized on 06.06.2014
according to Hindu Customs & Rites. After marriage the
appellant came to the house of respondent on 07.06.2014 and
she remained for one week at her matrimonial house. It is
alleged that appellant has not made any physical relation with
the respondent and it was bluntly stated by the appellant that she
has no any intimacy with respondent and the appellant was
taken back from matrimonial house by the brother of appellant.
Respondent was not treated well when he reached at Patna for
meeting with his wife/appellant and even appellant did not talk
in a proper manner on mobile and appellant has no any
grievance with the father-in-law and mother-in-law till today
and gift was being sent on the occasions according to status and
the capacity. When appellant's parents denied the appellant to
join her matrimonial house in that context, Panchayati was held
and appellant came to matrimonial home for quite sometime and
again she went to father's house. Again on the occasion of Holi,
Patna High Court MA No.651 of 2018 dt.03-10-2024
3/13
respondent brought appellant and appellant remained for two
days at her matrimonial home and again went to her father's
house. During course of said intervening period, no physical
relation has taken place between appellant and respondent and it
was asserted by the appellant that either respondent has to live
separately from his parents or to leave the companion of
appellant. In other words, there was pre-condition set by the
appellant that in case respondent did not seek partition from his
parents, in that situation, respondent would leave her
companion. Respondent's parents became ready for partition.
Again appellant has set another condition that respondent was
asked to reside at Patna after selling the property which was
apportioned under his share for which respondent was not ready.
Respondent was leading her life on the income generated by
private tuition whereas the appellant is the teacher of primary
school in Bihar Government. Respondent has taken all the
efforts but of no avail and in that situation, respondent has
brought the said petition.
7. Learned counsel for the appellant has
submitted that notice was sent on wrong address provided by the
husband/respondent before the court and without having service
report, direction for gazette publication has been issued on
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4/13
18.03.2017
. He further submitted that appellant is legally
wedded wife of respondent. Appellant is a working lady and she
is posted as Panchayat Teacher at Hasanpur Primary School,
Patna to secure the source of income for the family and for the
bright future and she is residing with her father and mother
since 2006. He further submitted that after lapse of few month,
conduct of respondent/husband has been changed and he started
pressurizing to resign from the service and reside alongwith him
at Nawada. Learned counsel for the appellant has further
submitted that even without having service report, direction for
Gazette Publication has been issued on 18.03.2017. In this way,
the judgment passed by the concerned court is without
following the cardinal principle of natural justice and the
appellant was being deprived of her right of hearing. He further
submitted that matrimonial dispute is a very much sensitive
dispute for establishing the relation between husband and wife.
Appellant got no opportunity to put her reply against the petition
filed under Section 9 of the Hindu Marriage Act and the matter
has been heard ex parte and concerned court has jumped to the
conclusion for substituted service without recording the
satisfaction that appellant is avoiding the service of notice. No
satisfaction is expressed either in a positive way or in a negative
Patna High Court MA No.651 of 2018 dt.03-10-2024
way. In this way, judgment passed by the family court is merely
an empty formality to secure the presence of appellant and the
appellant has already claimed that respondent has given wrong
address knowingly that appellant is residing at Patna and she is
government teacher at Patna then the question of sending notice
at different address is nothing but to mislead the court. Though,
it has been shown that necessary process has been issued for
securing the presence of appellant but in reality nothing has
been served upon the appellant and ex parte order has been
passed without having service of notice. Hence, present M.A.
has been filed against the said order.
8. Learned counsel for the respondent has
submitted that the concerned Court has passed order on basis of
the materials available on record. He further submitted that
summons and notices have been issued to the appellant but she
ignored the process of the court issued against her. Despite
being sufficient service, she did not turn up before the court as
she did not want to join the matrimonial home. In this way,
order passed by the concerned court is justified and legal.
Hence, no interference is needed.
9. Pursuant to the direction of this court dated
29.07.2024 learned counsel for the respondent has produced
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complete order sheet of the family court passed in Matrimonial
Case No. 197 of 2016 by the Court of Principal Judge, Family
Court, Nawada.
10. From perusal of the record, we are satisfied
that ex-parte judgment is legally unsustainable on the ground of
non-service of notice upon the appellant-wife and the same
needs to be remanded for retrial, we are not inclined to go into
merits of the present appeal, as any observation made by this
court might affect the case of either of the parties when matter is
retried by the trial court on merit.
11. For the purposes of examining as to whether
the ex parte judgment was rightly passed by the learned
Principal Judge, Family Court, we have perused the order-sheet
of the matrimonial case. On 17.08.2016 petition under Section
9 was submitted. On 24.11.2016 ordinary and registered notice
was directed to be issued. Order sheet dated 09.12.2016,
23.02.2017 and 04.03.2017 indicates that notice has not been
served. On 18.03.2017 respondent was directed to take steps for
publication by 30.03.2017 and on 21.03.2017 format of the
Gazette Publication was submitted. Order sheet dated
18.03.2017 indicates that order has been made for publication in
newspaper but there was no satisfaction recorded by the court as
Patna High Court MA No.651 of 2018 dt.03-10-2024
to why the court has taken into account for substituted service as
a last resort when the court has not expressed any satisfaction
that there is reason to believe that appellant is keeping out of the
way for the purpose of avoiding service, for that any other
reason, summon cannot be served in ordinary way. Court has
also not given any reason as to why court has chosen for
substituted service. On 03.05.2017 order of ex parte has been
initiated without going through material available on record that
as to whether notice has been properly served to the appellant or
not.
12. The order-sheet of different dates of Family
Court regarding service of summons indicate how casually and
in a routine manner order has been passed and there is no
whisper to the extent that court is satisfied with the service of
notice served upon the appellant. The order sheet clearly
indicates that steps taken by the concerned court is against the
provision of Order 5 Rules 12, 15 and 17 of the Civil Procedure
Code. The concerned court has never expressed satisfaction as
to why he has jumped to the next process to secure the presence
of the parties. Unless and until the court satisfies itself that
notice was not properly served, then, in that situation he can
pass order for other process which is required to secure the
Patna High Court MA No.651 of 2018 dt.03-10-2024
presence of the party. Whenever the substituted service is
required then the court has to give reason for substituted service.
13. Further Order 5 of the Civil Procedure Code
(hereinafter referred to as "Code") makes provision for issuance
and service of summons. Rule 9 thereof provides where the
defendant resides within the jurisdiction of the Court in which
the suit is instituted, or has an agent resident within that
jurisdiction who is empowered to accept the service of
summons, the summons shall, unless the Court otherwise
directs, be delivered or sent either to the proper officer to be
served by him or one of his subordinates or to such courier
services as are approved by the Court. Under sub-rule (3) of
Rule 9, the services of summons may be made by delivering or
transmitting a copy thereof by registered post acknowledgment
due, addressed to the defendant or his agent empowered to
accept the service or by speed post or by such courier services
as are approved by the Court.
14. Rule 17 of Order 5 of the Code prescribes
the procedure when defendant refuses to accept service, or
cannot be found. It provides that if the defendant cannot be
found, the serving officer shall affix a copy of the summons on
the outer door or some other conspicuous part of the house in
Patna High Court MA No.651 of 2018 dt.03-10-2024
which the defendant ordinarily resides or carries on business or
personally works for gain, and shall then return the original to
the court from which it was issued, with a report endorsed
thereon or annexed thereto stating that he has so affixed the
copy, the circumstances under which he did so, and the name
and address of the person by whom the house was identified and
in whose presence the copy was affixed. Under Rule 19 of
Order 5 of the Code, examination of the serving officer is must
where a summons is returned under Rule 17, as above.
15. Upon being satisfied after examination of
the serving officer that the defendant is keeping out of the way
for the purpose of avoiding service, the Court may proceed to
invoke Rule 20 (1) to direct service by affixing in some
conspicuous place in the Court house and also upon some
conspicuous part of the house (if any) in which the defendant is
known to have last resided or carried on business or personally
worked for gain, or in such other manner as the court thinks fit.
Thus, before proceeding to direct substituted service the
procedure prescribed under Rules 9 and 19 of Order 5 of the
Code has to be followed. Further, Rule 20 (1-A) of the Code
provides that where the Court acting under sub-rule (1) orders
service by an advertisement in a newspaper, the newspaper shall
Patna High Court MA No.651 of 2018 dt.03-10-2024
be a daily newspaper circulating in the locality in which the
defendant is last known to have actually and voluntarily resided,
carried on business or personally worked for gain.
16. In the present case, though there is an order
to issue notice to the appellant-wife but on the point of service
of notice, the court has not made any whispering as to whether
notice was properly served upon appellant-wife or not and at
once on 18.03.2017 the court has directly come to conclusion
that publication was required in the present case.
17. In the light of aforesaid facts and
circumstances of the case, it is necessary to quote judgment of
Hon'ble Supreme Court rendered in the case of Yallawwa v.
Shantavva, reported in (1997) 11 SCC 159 in which it has been
held that the trial court could not have almost automatically
granted the application for substituted service without taking
steps for serving the respondent by ordinary procedure as laid
down by Order 5 Rules 12, 15 and 17 of the Code. It must be
kept in view that substituted service has to be resorted as the last
resort when the defendant cannot be served in the ordinary way
and the Court is satisfied that there is reason to believe that the
defendant is keeping out of the way for the purpose of avoiding
service, or that for any other reason the summons cannot be
Patna High Court MA No.651 of 2018 dt.03-10-2024
served in the ordinary way. The Hon'ble Supreme Court further
observed that it appears that almost automatically the procedure
of substituted service was resorted to. In the instant case also, as
mentioned in the preceding paragraphs, the learned trial court
has almost instantly allowed the prayer without recording the
satisfaction about the prerequisites for exercise of power under
Order 5 Rule 20 of the Code.
18. In the present case, the learned Principal
Judge, Family Court has passed order in a casual and
mechanical manner. The order dated 03.05.2017 clearly
indicates that case has been fixed for ex-parte hearing where
order sheets describe regarding how many processes have been
exercised for appearance of the appellant but the court has not
made any observation about the processes which have been
executed under the statutory provisions with the satisfaction of
the court. The order sheets only indicate that paraphernalia and
the processes have been done to show that all the processes have
been exhausted but in reality cited statutory provisions have not
been complied and the case has been fixed for ex parte hearing
without taking proper recourse which is mandatory requirement
under statutory provision. In the said matter, the court should
not follow mechanical approach for compliance of issuance of
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notice rather the court should take all statutory provisions into
account which is expected about the prerequisites for exercise of
power under Order 5 Rules 12, 15, 17 and 20 of the Code
regarding issuance of summon for appearance of the party.
Though the very matter is related with restitution of conjugal
rights but proper hearing of both parties is required so that no
one is being unheard about her/him regarding legal
representation or rightful hearing.
19. Having regard to the facts and circumstances
of the case, we are satisfied that appellant-wife was not duly
served with the notice and the procedure adopted for directing
substituted service being vitiated, therefore, the ex-parte
judgment passed against the appellant-wife deserves to be set
aside. Accordingly, the judgment dated 17.06.2017 passed in
Matrimonial Case No. 197 of 2016 by the Court of Principal
Judge, Family Court, Nawada is set aside. Matrimonial Case
No. 197 of 2016 is restored on the file of Principal Judge,
Family Court, Nawada. The learned Family Court is directed to
pass decision afresh in accordance with law on its own merit
within a period of six months from the date of
receipt/production of a copy of this judgment, after giving
ample opportunity of adducing evidence and hearing to the
Patna High Court MA No.651 of 2018 dt.03-10-2024
respective parties. Parties are directed to co-operate in disposal
of Matrimonial Case No. 197 of 2016.
20. The trial court record be sent back to the
learned trial court forthwith.
21. Pending I.A.'s, if any, stands disposed of.
(P. B. Bajanthri, J)
( Alok Kumar Pandey, J)
Amitkumar/
Shahzad
AFR/NAFR AFR
CAV DATE 24.09.2024
Uploading Date 03.10.2024
Transmission Date 03.10.2024
