The presumption of service applies when summons is refused, affirming the finality of judicial proceedings under the Code of Civil Procedure.

JUDGEMENT

ARINDAM SINHA, J. 1. Appellant, whose marriage stood dissolved by judgment dated 5th August, 2021 of the Family Court, made ex parte against her, is aggrieved. She had applied for setting aside of the judgment. The Family Court on order dated 13th January, 2022 dismissed her application. Hence, she seeks interference in appeal in respect of both, the order and the judgment.

2. Mr. Pradhan, learned advocate appears on behalf of appellant and submits, several grounds were taken in the application for setting aside the judgment made ex parte against his client. At the material time there were talks of settlement and apprehending mischief, his client did not accept the summons. It was an act of ignorance. Her learned advocate in the Family Court also took other grounds on facts. The notice was not affixed to her door and, the application for setting aside the decree was made promptly, within prescribed period of limitation. He submits further, on merits there are good grounds for reversing impugned judgment. The parties are Christian. There could not have been resort to proceeding under Special Marriage Act , 1954. The Divorce Act of 1869 is applicable. Unless there is interference in appeal his client will suffer hardship inasmuch as there is the matter of maintenance, for both, of herself and the daughter, who is with her. No direction was made.

3. Mr. Pattnaik, learned advocate appears on behalf of respondent and submits, it will appear from impugned order that there were several attempts to serve. Service of summons by post and process server were undertaken by the Court, at instance of his client. The postal article was returned on endorsement ‘Refused’. Report of the process server was also of refusal. Appellant is not entitled to maintenance and the daughter is being taken care of by his client.

4. His client had relied on judgment dated 29 th September, 2021 of the Supreme Court in Vishwabandhu v. Sri Krishna and another [ Arising out of Special Leave Petition (Civil) D no.1855 of 2020 ] . By said judgment the Supreme Court dismissed the application under order IX rule-13, Code of Civil Procedure , 1908 by relying upon sub-rule (5) in rule 9 of order V. Paragraph-19 from the judgment is reproduced below. “19. The summons issued by registered post was received back with postal endorsement of refusal, as would be clear from the order dated 19.02.1997. Sub-rule (5) of Order V Rule 9 of the Code states inter alia that if the defendant or his agent had refused to take delivery of the postal article containing the summons, the court issuing the summons shall declare that the summons had been duly served on the defendant. The order dated 19.02.1997 was thus completely in conformity with the legal requirements . In a slightly different context, while considering the effect of Section 27 of the General Clauses Act, 1897, a Bench of three Judges of this Court in C.C. Alavi Haji vs. Palapetty Muhammed and Anr. made following observations:- 14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or shop closed” or addressee not in station”, due service has to be presumed. [Vide Jugdish Singh v. Natthu Singh : State of M.P. vs. Hiralal and Ors. and V. R