The valuable right of a party cannot be adversely affected without giving them a due opportunity of hearing, and in the absence of proper service of summons, ex parte proceedings cannot be sustained.

V.K. Agrawal, J.

1. By the impugned order, application under Order 9, Rule 13 of C.P.C., for setting aside the decree of divorce granted in Civil Suit No. 161-A/96, was allowed and the said suit was directed to be heard bi parte.

2. The petitioner/husband had filed a petition registered as Civil Suit No. 161-A/96 against the respondent/wife. Service report of summons of the said petition on the respondent /wife indicated that she refused to take summons. The Trial Court after recording evidence led by the petitioner/husband passed an ex parte judgment and decree of divorce.

3. The respondent/wife filed an application under Order 9, Rule 13 of C.P.C. for setting aside the ex parte judgment and decree making an averment that the summons was never tendered to him, and that she never refused to accept the same.

4. The learned Trial Court after recording evidence on the said application found that the averments made by the respondent/wife that the summons was never tendered to her and that she did not refuse to accept the same, appear to be acceptable and, therefore, set aside the ex parte judgment and decree and ordered the trial to proceed bi parte.

5. The learned Counsel for the petitioner husband submitted that the summons was duly tendered and served on the respondent/wife. She refused to accept the summons and, therefore, was rightly proceeded against ex parte. It was, therefore, contended that there was no justification for setting aside the ex parte judgment and decree. It has also been submitted that the petitioner /husband has remarried after ex parte decree of divorce was granted in his favour. There was, therefore, no justification for setting aside the ex parte judgment and decree. Reliance in the above connection has been placed by the learned Counsel on Rajendra Prasad Yadav v. Prem Lata, II (997) DMC 614=IV (1997) CLT 199.

6. Learned Counsel for the respondent however supported the impugned order and submitted that since the summons of the original suit was never duly served on the respondent/wife, the ex parte judgment and decree was rightly set aside.

7. The respondent/wife stated on oath that the summons was not refused by her. It would appear that the process server Lal Bahadur (NAW/1) stated that he tendered summons to the respondent/wife but she refused to take the same, However, during his statement he failed to recognise the respondent/wife. Further, out of two attesting witneses to the above service report one was not examined. The statement of other witness M. Francis (NAW/2) clearly indicated that the service of summons was not effected in his presence and that he signed on the report of process-server as a witness thereof on the asking of his friend, the petitioner/ husband. It would thus be clear that due service of summons on the respondent was not proved.

8. It is, therefore, clear that the Trial Court is justified in holding that the service of summons was never effected on the respondent/wife and that she did not refuse to accept the same.

9. In the absence of the service of summons on the respondent/wife, the ex parte proceedings clearly could not be sustained, and they had to be set aside. Valuable right of a party cannot be adversely affected without giving him due opportunity of hearing. In view of the above, the learned Trial Court was justified in ordering setting aside of ex parte judgment and decree, notwithstanding the remarriage of the petitioner/husband.

10. It is, therefore, clear that interference in the impugned order setting aside the ex parte judgment and decree is not called for. This revision has no merit and is accordingly dismissed.