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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR
Pradeep Nandrajog, G.R. Moolchandani, JJ.
Teena - Appellant
Vs.
Kanhaiya Lal - Respondent
C.M.A (Civil) No. 1042 of 2017
Decided On : 20-04-2018
Ex Parte Decree - Divorce - The court set aside the impugned order dismissing the application to set aside the ex parte decree of divorce, emphasizing the need for proper examination of the postman and consideration of whether sending notice by registered post was sufficient under the law.
Fact of the Case:
The appellant's application to set aside the ex parte decree of divorce was dismissed by the impugned order. The appellant claimed she was not properly served notice of the divorce proceedings.
Finding of the Court:
The court found that the impugned order overlooked the appellant's denial of refusing the notice sent by registered post and emphasized the need for proper examination of the postman and consideration of the sufficiency of sending notice by registered post.
Issues: The issues involved the proper service of notice for the divorce proceedings and the sufficiency of sending notice by registered post under the law.
Ratio Decidendi: The court emphasized the importance of examining the postman and considering whether sending notice by registered post was sufficient under the law in deciding the application to set aside the ex parte decree of divorce.
Final Decision: The appeal was allowed, the impugned order was set aside, and the application to set aside the ex parte decree of divorce was restored for fresh adjudication with a direction to examine the postman concerned.
1. Heard learned Counsel for the parties.
2. Impugned order dated 08.02.2017 has dismissed an application filed by the appellant praying for setting aside of the ex parte decree of divorce dated 16.10.2015.
3. The petition for divorce filed by the respondent was listed before the Court on 28.05.2015. Notice was issued by registered post only returnable for 13.07.2015. On the basis of the report of the postman that the appellant had refused to accept the notice it was ordered on 13.07.2015 that the appellant shall be proceeded against ex parte.
4. As per the appellant, she learnt about the decree when the respondent presented the decree of divorce in the proceedings which she had initiated under the Domestic Violence Act.
5. The impugned order treats the report of the postman to be true. The impugned order overlooks the fact that on oath the appellant had denied to refuse the notice sent by the Court through registered post on the plea that it was never tendered to her.
6. Without examining the postman the learned Judge, Family Court could not have decided the application under Order 9 Rule 13 CPC filed by the appellant. Besides, the learned Judge also had to consider whether simply sending notice by registered post was enough. Did the law require the notice to be sent through Process Server as well.
7. Thus, the appeal is allowed. Order dated 08.02.2017 is set aside. The application under Order 9 Rule 13 CPC is restored for fresh adjudication with a direction that the postman concerned would be examined and thereafter the application would be decided afresh.
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