IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK AGARWAL th ON THE 6 OF DECEMBER, 2022 MISC. APPEAL No. 68 of 2017 BETWEEN:-

SMT. MAMTA W/O SATISH AHIRWAR, AGED ABOUT 26 YEARS, R/O QR. NO. G 26 B, EAST RAILWAY COLONY T.C. BEHIND REST HOUSE TAH. BINA, DISTT. SAGAR (MADHYA PRADESH)

.....APPELLANT (BY SHRI ASHISH TIWARI - ADVOCATE)

AND SATISH S/O RAM PRASAD AHIRWAR, AGED ABOUT 30 YEARS, R/O BEHIND SAHNI LODGE VEER SAWARKAR WARD BINA, TAH. BINA, DISTT. SAGAR (MADHYA PRADESH)

.....RESPONDENT (BY SHRI ABHIJIT BHOWMIK - ADVOCATE)

This appeal coming on for orders on application for stay and application for initiating contempt proceeding against the respondent this day, the court passed the following:

ORDER

This miscellaneous appeal is filed by the wife being aggrieved of order dated 13th December, 2016 passed in M.J.C. No.12/2016 by learned Additional District Judge, Bina, Distt. Sagar refusing to entertain an application under Order 9 Rule 13 CPC so also Section 5 of the Limitation Act, 1963. Brief facts of the case are that non-applicant-Satish had filed a suit for Signature Not Verified SAN divorce under the provisions of Hindu Marriage Act which was registered as Case No.14A/2014. In this case present appellant was proceeded ex-parte on the ground that she had refused to accept notice. Thereafter she had filed an application seeking setting aside of the ex-parte judgment and decree which has been rejected on two grounds namely; there is delay of one month eleven days in filing the application for setting aside ex-parte judgment and decree. Secondly, trial Court has held that in terms of provisions contained in Order 5 Rule 15 CPC and Order 5 Rule 17, CPC since there is a note appended to the service report that Bhabhi of present appellant had refused to accept notice, service was deemed to be complete and on that ground restoration application is dismissed.

Shri Abhijit Bhowmik, learned counsel for the respondent, supports the order and submits that no indulgence is required.

Order 5 Rule 15 of CPC contemplate certain requirements before service can be deemed to be effected; namely; when there is no likelihood of the addressee being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, may be made on any adult member of the family, whether male or female, who is residing with him.

Thus, the Process Server should have recorded a finding that what was the conversation between him and the sister-in-law of the present appellant and whether there was no likelihood of her being found at the residence within a reasonable time and whether she had authorised her sister-in-law to accept the notice specially when it has come on record that she was residing with her father. Thus, the Court below has to rigidly construed the provisions of Order

5 Rule 15, CPC and Section 5 of Limitation Act.

Signature Not Verified SAN Law in this behalf is clear as held by Hon'ble Supreme Court in Salem Advocate Bar Association, T.N. Vs. Union of India, (2005) 6 SCC 344 and Zolba Vs. Keshao and others AIR 2008 SC 2099, that the construction of rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules or procedure are hand-maid of justice and not its mistress.

Thus, when impugned order is tested on the touchstone of the judgment of Hon'ble Supreme Court in Salem Advocate Bar Association, T.N. (supra) and Zolba (supra), the impugned cannot be given a seal of approval, therefore, the same is quashed. Application under Order 9 Rule 13 of CPC is allowed.

Let parties are directed to appear before the Additional District Judge, Bina, Distt. Sagar on 21st December, 2022 for which no fresh notices will be required. Learned ADJ is directed to complete the proceeding and decide the case after affording an opportunity to the present appellant within a period of three months from the date of receipt of certified copy of the order being passed t