The main legal point established in the judgment is that the service of summons must adhere to the requirements of Order 5 Rule 15 of C.P.C., including making necessary enquiries to determine the absence of the defendant from the residence and the likelihood of their return within a reasonable time.

JUDGMENT :

Goutam Bhaduri, J.

1. Even after repeated calls, no representation is made on behalf of the respondent. The case was passed over, but eventually the efforts of hearing both the parties were futile, as the counsel absented to appear on behalf of the respondent.

2. Heard

3. On the earlier occasion, both the appellant and respondent were directed to appear in person. They appeared and thereafter they were directed to place on record the source of income and assets which are held by them at present. The appellant/wife Smt. Sandhya Pawar has filed the documents; however, neither the affidavit nor any documents have been filed on behalf of the respondent.

4. The present appeal is against the judgment & decree dated 06.04.2019 passed by the Family Court, Rajnandgaon, wherein an exparte judgment & decree was passed in favour of the husband.

5. Learned counsel for the appellant would submit that the appellant was working as Guest Lecturer at Government Higher Secondary School Mohandi, Block Bagbahra, District Mahasamund, as such, the notice which was issued to her in respect of the divorce petition was not served in person to her. Therefore, the learned Family Court fell in error to proceed exparte against the appellant/wife. He would submit that as per the provisions of Order 5 Rule 12 & 15 of C.P.C. the notice was required to be served in person and in absence thereof no valid notice can be deemed to have been served. In a result, the exparte judgment & decree is required to be set aside by giving an opportunity of hearing to the appellant.

6. We have heard learned counsel for the appellant and perused the records of the Court below.

7. Perusal of the records of the Court below would show that the exparte proceeding was drawn on 06.03.2019 on a report of the process server which purports that when the notice was issued to be served to the respondent on an address which is shown of Raipur, on 22.02.2019 an enquiry was made. On an enquiry, the defendant/wife was not found and her mother who is aged about 60 years was found available. She made an endorsement that her daughter/ appellant do not stay there and stays outside. Consequently, the mother refused to take the notice. On such development, the process server returned the process with an endorsement that in absence of the wife since the mother who was living in joint with the daughter has refused the notice. The Family Court by its order dated 06.03.2019 observed that since the mother who was living in joint with the daughter had refused to accept the notice, therefore, it would be a deemed service of notice.

8. Order 5 Rule 15 purports when in a suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept the service of the summons on his behalf, service may be made on any adult member of the family, whether male or female, who is residing with him. The plain reading of the Rule 15 of Order 5 of C.P.C. shows that in order to hold the proper service under Order 5 Rule 15, the condition must be satisfied that the absence must be from the residence and not a place of business and further there is no likelihood of his being found within a reasonable time. The word “reasonable time” denotes that if the person is absent from his/her residence, then all possible enquiries are required to be made to find out as to when he is likely to return at his/her residence.

9. The service report of the process server only contemplates that when the notice was issued, the mother of the wife was found and she made an endorsement that her daughter i.e. the wife resides outside. The said facts prima facie are lamented by a document which is filed alongwith this appeal to show that on 22.02.2019 she was discharging the job at Government Higher Secondary School, Mohandi and a copy of the certificate issu