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2019 Supreme(Telangana) 235
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
M.S. RAMACHANDRA RAO, J.
Rajampetapavan Kumar – Appellant
Versus
Gundu Sangeetha – Respondent
CRP No. 6453 of 2018
Decided On : 28-01-2019
Advocate Appeared:
For the Appellant : A. Prabhakar Rao
For the Respondents: Y. Koteswar Rao
Headnote:
Civil Procedure Code, 1908 – Order V – Rules 16,17 and 18 – Limitation Act, 1963 – Section 5 – Constitution of India – Article 227 – Challenging order of Family Court setting aside the ex parte decree passed in said O.P. against respondent by dissolving her marriage with petitioner – Held, Service of summons by registered post, no doubt in the instant case, the postal cover is returned with an endorsement "unclaimed" – But it was incumbent on part of petitioner to examine Postman who made such endorsement to prove it, but he did not choose to do so – Family Court also, before passing ex parte decree, did not take steps to summon Postman nor did it direct service on respondent by substituted service – Respondent had not been duly served with notice personally and suffered ex parte decree – Respondent cannot be allowed to suffer for fault of Family Court not properly following Order V Rule 17 C.P.C. or not summoning Postman, and since valuable rights regarding matrimonial status of parties are subject-matter of O.P – Court below not commit any error in allowing IA after awarding costs to petitioner – Court below was right in holding application under Section 5 of Act, 1963 for condonation of delay not necessary since said I.A. was filed within 30 days from date of knowledge of same – No merit in revision – Revision petition dismissed (Paras: 19 to 22)
Facts of the case:
Challenging order of Family Court setting aside the ex parte decree passed in said O.P. against respondent by dissolving her marriage with petitioner
Findings of the court:
Service of summons by registered post, no doubt in the instant case, the postal cover is returned with an endorsement "unclaimed" – But it was incumbent on part of petitioner to examine Postman who made such endorsement to prove it, but he did not choose to do so – Family Court also, before passing ex parte decree, did not take steps to summon Postman nor did it direct service on respondent by substituted service – Respondent had not been duly served with notice personally and suffered ex parte decree – Respondent cannot be allowed to suffer for fault of Family Court not properly following Order V Rule 17 C.P.C. or not summoning Postman, and since valuable rights regarding matrimonial status of parties are subject-matter of O.P – Court below not commit any error in allowing IA after awarding costs to petitioner – Court below was right in holding application under Section 5 of Act, 1963 for condonation of delay not necessary since said I.A. was filed within 30 days from date of knowledge of same – No merit in revision
Result: Revision Petition dismissed
ORDER :
M.S. Ramachandra Rao, J.
1. This revision is filed by the petitioner under Article 227 of the Constitution of India challenging the order dated 30.8.2018 in IA No. 608 of 2016 in OP No. 816 of 2013 of the Family Court at Hyderabad setting aside the ex parte decree passed on 25.10.2013 in the said O.P. against the respondent by dissolving her marriage with the petitioner.
2. The petitioner in this revision had earlier been married to the respondent on 4.5.2007. Later disputes arose between them and respondent filed the subject O.P. alleging cruelty against petitioner.
3. It appears that summons were sent through Process Server for service on respondent, but the Process Server filed a report on 6.8.2013 stating that respondent refused to receive the notice and so he affixed it to the main door.
4. Notice sent by RPAD to the address shown in the O.P. as that of the respondent was returned as "unclaimed".
5. Treating the summons and notice sent through Registered Post as having been served, the Family Court set the respondent ex parte and passed the ex parte decree on 25.10.2013.
6. The respondent then filed on 3.6.2016 IA No. 608 of 2016 under Order DC Rule 13 C.P.C. to set aside the ex parte decree dated 25.10.2013 in FCOP No. 816 of 2013.
7. In the affidavit filed in support of the said application, she stated that petitioner had shown wrong address of respondent, that the parties had been living together at H. No. 18-7-466/2/B/113/A, Ambica Nagar, Uppuguda, Hyderabad, but the address was wrongly shown as H. No. 18-7-455/279/A, Lalithabagh, outside Goulipura, Hyderabad, which is the address of her parents; that since their marriage itself was against the will of her parents, she was not informed by her parents; and thus by playing fraud on the Family Court, the ex parte decree was obtained by petitioner. She specifically alleged that there was collusion between the petitioner and the Process Server and so the Court while setting her ex parte in 2013 could not rely upon the report of the Process Server. She contended that she came to know about these proceedings only on 10.5.2016 and her application filed on 3.6.2016 is within 30 days from the date of knowledge of the same and therefore it is within time.
8. Counter was filed by petitioner opposing the said application. He contended that the address being now shown by respondent as her correct address was in fact the wrong address; that respondent intentionally remained ex parte and refused notices in the O.P. and respondent was rightly set ex parte and ex parte decree was passed. He also contended that respondent was aware about the grant of divorce by the Family Court and certified copies of the ex parte divorce decree was given to her long back and so she was aware of the passing of the divorce decree.
9. He contended he had waited for 3 years and after appeal time was over, he had married one Smt. D. Shilpa on 1.5.2016 and the said marriage is also a registered marriage. He contended that only to avoid filing of a petition for condonation of delay under Section 5 of the Limitation Act, 1963, the respondent is claiming that she got knowledge of passing of the decree of 2013 in May, 2016 and that her contentions cannot be accepted. He denied the other allegations made by respondent also.
10. By order dated 30.8.2018, the Court below allowed IA No. 608 of 2016 subject to payment of Rs. 1,000/- as costs. After referring to the contentions of both sides, the Court below recorded that the docket proceedings coupled with endorsement of the Process Server on the notice and his sworn affidavit discloses that respondent was present in the house and she had refused to receive the summons and so he affixed the notice on the door of the house. It also recorded that the petitioner identified the respondent. It held that under Order V Rules 17 and 18 C.P.C., the Process Server is required to submit a report of service, the time and manner in which summons were served, name and address of the
