Case Note & Summary
The revision applicant, Kishore @ Sundar s/o Rupchand Gujar, filed a Hindu Marriage Petition No. 96 of 2007 seeking divorce from his wife, Archana w/o Kishore Gujar, on the ground of cruelty under Section 13(1)(a) of the Hindu Marriage Act, 1955. The trial court, Civil Judge, Senior Division, Dhule, granted an ex parte decree of divorce on 17th February 2012. The respondent wife filed an application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside the ex parte decree, which was dismissed by the District Judge, Dhule, by order dated 17th February 2012. The revision applicant challenged this dismissal. The High Court examined the service of summons. The process server's report indicated that on the first visit, he affixed the summons on the door of the respondent's house, stating that the respondent was not available. The court noted that Order 5 Rule 17 CPC permits affixture only when the defendant cannot be found after due diligence and the serving officer has made all reasonable efforts to effect personal service. In this case, the process server did not attempt personal service before resorting to affixture. The court held that the service was not proper and the ex parte decree was liable to be set aside. The court also noted that the trial court had not recorded any satisfaction regarding the service being sufficient. The High Court allowed the civil revision application, set aside the order of the District Judge, and directed that the ex parte decree be set aside and the Hindu Marriage Petition be restored to its original number for fresh disposal in accordance with law. The court directed the parties to appear before the trial court on 10th September 2012.
Headnote
A) Civil Procedure - Service of Summons - Order 5 Rule 17 CPC - Service by affixture is permissible only when the defendant cannot be found after due diligence and the serving officer has made all reasonable efforts to effect personal service - In the present case, the process server affixed the summons on the first visit without attempting personal service, which is not proper service - Held that the ex parte decree was liable to be set aside (Paras 5-8). B) Hindu Marriage Act - Ex Parte Decree - Section 13(1)(a) - Setting aside ex parte decree - The trial court granted divorce on the ground of cruelty without ensuring proper service of summons - The appellate court erred in dismissing the application under Order 9 Rule 13 CPC - Held that the revision application must be allowed and the ex parte decree set aside (Paras 9-10).
Issue of Consideration
Whether the ex parte decree of divorce granted by the trial court was valid when the summons were served by affixture without prior attempts at personal service, and whether the appellate court erred in dismissing the application to set aside the ex parte decree.
Final Decision
The High Court allowed the civil revision application, set aside the order of the District Judge dated 17th February 2012, and directed that the ex parte decree of divorce be set aside. The Hindu Marriage Petition No. 96 of 2007 was restored to its original number for fresh disposal in accordance with law. The parties were directed to appear before the trial court on 10th September 2012.
Law Points
- Service of summons by affixture is permissible only when the defendant cannot be found after due diligence
- Order 5 Rule 17 CPC
- Section 13(1)(a) Hindu Marriage Act
- 1955
- Ex parte decree set aside for improper service
