Proper service of notice is required before proceeding ex-parte in custody matters

This is an appeal filed by wife challenging the Judgment and Order dated 16th June, 2017, passed by the District Judge-5, Jalgaon, in Miscellaneous Civil Application No. 85 of 2016, under Section 25 of the Guardians and Wards Act, 1890, whereby the custody of a minor girl aged 7 years is ordered to be handed over to the father.

2. The grievance of the appellant as argued by learned Advocate Shri. Girish V. Wani is that there was no proper service on the appellant, still the trial Judge proceeded ex-parte against her.

3. I have perused the record and proceedings of the trial Court. As per the record, notice dated 07-03-2017 was issued in the name of appellant and her minor daughter. The bailiff visited her house on 18-03-2017. That time, her daughter and appellant were out of station. It is alleged that the father of appellant No.1 has refused to accept the notice and the noticee were not found. Hence, notice was returned unserved. Earlier notice was also sent by Registered Post Acknowledgment Deed (RPAD) and the envelope was returned unserved with an endorsement that an intimation was given to the noticee. But, she did not visit the post office for collecting envelope. In the Judgment, learned trial Court has merely observed that notice has remained unserved, though, notice was sent to opponent No.1 through RPAD, but it returned with an endorsement as unserved. Therefore, the matter proceeded ex-parte against both the opponents.

4. The points for my determination and findings thereon are as follows :-

Nos.	Points	Findings
1	Whether the learned Trial Judge proceeded rightly ex-parte against the appellants ?	In the negative.
2	What order ?	As per final order.

REASONS

5. The basic feature of Principles of Natural Justice is to give fair opportunity of hearing to the other side. The rule of fair trial contemplates that nobody should be condemned unheard. It is no doubt true that if some party is duly served in civil matter, but does not appear, the Court can proceed ex-parte against such party, but, there should be proper service of notice and Court should record the findings of its satisfaction of proper service and still the party was not attending the Court.

6. The impugned ex-parte judgment merely states that the notice was issued to opponent No.1 through RPAD, but the same was returned with an endorsement as unserved. It is needless to state that this was not a case of proper service and the learned trial Judge has no discretion to proceed ex-parte only on the basis of finding that the notice was unserved.

7. Order V of the Code of Civil Procedure, 1908 (in short, CPC) deals with issue and service of summons. It is well settled that personal service on the party through bailiff and obtaining the acknowledgment of party is the best service. But, if it could not be served on the party, it could be served on any adult member of the family. In the present case, the notice was sent initially by RPAD and the envelope has returned with endorsement D/L 23-08-16 and 24-08-16. An intimation was given on 25-08-2016 and as the addressee did not visit the post office for collecting the registered post envelope, it was returned as unserved. The envelope nowhere shows that it was refused by the noticee i.e. Appellant herein. Thereafter, summons was reissued through bailiff. That time the opponent was not there. The papers disclose that the notice was issued for the first time on 13-06-2016 and the first notice issued returned unserved as the bailiff did not get sufficient time for service.

8. This is a custody matter of a child before the Additional District Judge-5, Aurangabad, who was expected to be sensitive to the rights of the parties and was bound to verify the record before passing ex-parte order. In the first place, there was no attempt to serve the notice dated 14-08-2016 for want of t