Tuesday, 19 May 2015

Precaution to be taken by court prior to passing of exparte order against other party



Harmonious construction of Rules 17 and 19 of Order V of the Code
of Civil Procedure goes to show that acceptance of report of the service of the
summons is a serious and solemn act and not merely an empty formality. Object to
serve summons on the respondent is to enable him to know about institution of the
proceedings against him and enable him to resist the said proceeding filed against
him. Law of procedure is framed in such a manner that principle of natural justice
is scrupulously followed. The basic requirement of this rule is that the decision
should not be reached behind back of the affected party and such party should not
be precluded from participating in the proceeding. Therefore, it becomes the
prime duty of the Court concerned to see that all procedural requirements are duly
adhered to prior to proceeding ex-parte against the concerned party to the
litigation.
:Proof of due service of summons is essential condition for proceeding
ex parte against the concern respondent. If record of case in hand is perused, it
appears that though the Process Serving Officer / Bailiff has submitted his report
stating that, respondent wife has refused to accept the summons in the court
premises at 10.45 a.m. of 17.11.2011, he has not filed the same 
alongwith his affidavit. Another endorsement on summons Exh.No.5 shows that, the Process
Serving Officer has made efforts to serve the original respondent - wife at given
address i.e. N-12, B-Sector, 48/7, T.V. Center, HUDCO, Aurangabad, however
said report also not accompanied with an affidavit. Order passed below Exh.No.1
on 17.11.2011 by which the learned Judge, Family Court proceeded ex parte
against the respondent – wife, does not shows that mandatory provisions as
envisaged by Rules 17 and 19 of the Code of Civil Procedure were complied with
by the learned Judge of Family Court. There is no record to show that the Process
Serving Officer / Bailiff was examined by the learned Judge Family Court,
Aurangabad prior to proceeding ex parte against the respondent wife. As report of
the Process Serving Officer / Bailiff at Exhibit 5 relied upon by the learned Judge
was to the effect that original respondent / wife has refused to accept the summons
when it was sought to be served on her, as per mandate of Rule 19 of Order V of
the Code of Civil Procedure, it was incumbent on the part of the learned Judge to
examine said Process Serving Officer / Bailiff on oath or to cause him to be so
examined by another Court touching his proceedings. Obviously, the intention of
such examination is to see that chances of a false endorsement of such attempt to
serve the summons and refusal thereof are minimized. If the Process Serving
Officer / Bailiff is examined on oath and during such examination, it is found that
the statement so made by him is false, then such Process Serving Officer / Bailiff
makes himself liable for prosecution. Thus, there is inbuilt guard against false
report regarding service of summons. The learned Judge of the Family Court has
not taken precaution to adhere to the provisions of Rule 19 of the Code of Civil
Procedure while passing order below Exhibit 1 regarding service of summons on
original respondent / wife. In fact, it is seen that the said order below Exhibit 1

was passed in a casual manner not even declaring that the summons has been duly
served on respondent/wife. There seems to be no application of mind to this aspect
by the learned Judge of the Family Court at Aurangabad. At least the order below
Exh.No.1 does not show such application of mind.
Signature of the original petitioner is appearing on summons at
Exh.No. 5 as if to show that refusal to accept the summons by original respondent
– wife is in his presence. Report on separate sheet given on 17.11.2011 does not
bear such signature. Rule 19 of the Family Court Rules, 1988, shows that if
bailiff attempted to serve the summons and person refused to accept it then the
person who accompanies the Bailiff for the purpose of identification, at the time of
service is also required to file his affidavit. In the case in hand, such affidavit of
the original petitioner is also missing.
Thus even provisions of Rule 17 do not
seem to be complied with. For all these reasons, it becomes crystal clear that the
learned Judge, Family court erroneously proceeded ex parte against the
Respondent-wife and, therefore, impugned judgment and decree of dissolution of
marriage passed by the learned Judge of Family Court, Aurangabad dated 10 th
February, 2012 in Petition No.A-311/2011 cannot be sustained. It needs to be set
aside for non-compliance of the Rules mentioned supra, so also the same is
violating the principles of natural justice as no proper opportunity of hearing was
accorded to the Respondent-wife. 

FAMILY COURT APPEAL NO.13 OF 2013.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
BENCH AT AURANGABAD.
CIVIL APPELLATE JURISDICTION.
Deepali w/o Pratap Sonawane

V
Pratap s/o Irappa Sonawane

CORAM : B.P. Dharmadhikari &
       A.M. Badar, JJ.
DATE : 22nd December, 2014.
Citation;2015(3) ALLMR341

By this Family Court Appeal, original respondent – wife is
challenging the Judgment and Decree dated 10th February, 2012 passed by the
learned Judge, Family Court, Aurangabad in Petition No. A-311/2011, which was

filed by the present respondent – husband, seeking dissolution of marriage by
decree U/Section 13(1)(i-a) and (i-b) of the Hindu Marriage Act, 1955. [ In short,
the “Act of 1955”.]
[2]
Heard the learned counsel appearing for the present petitioner – wife.
He contended that the learned Judge, Family Court, Aurangabad erred in passing
ex parte decree for divorce within a short period of 4 1⁄2 months of institution of
the proceeding by the respondent-husband, by accepting the report of the bailiff
that he attempted to serve the summons upon the respondent therein, in court
premises, and she refused to accept the same. According to the learned counsel for
the present appellant – the wife has no occasion to remain present in the premises
of the Family Court, Aurangabad; so as to enable the Bailiff of the Family Court to
effect service of summons upon her.
[3]
In the present matter, the learned counsel for respondent – husband
did not appear when we heard the appeal yesterday i.e. 21.12.2014 and today also.
Initially, when the learned counsel for respondent-husband was appearing in the
matter, this court attempted to settle the controversy between the parties by
referring the same to the Mediator. However, we have received the report of the
Mediator that mediation failed.
[4]
With the assistance of the learned counsel for the petitioner, we have
perused the Record & Proceedings of the Petition No.A- 311/11 in order to satisfy
us regarding legality or otherwise of service of summons on the present appellant -
wife.
Perusal of the record shows that, Respondent – husband instituted
proceedings U/Section 13(1)(i-a) and (i-b) of “ the Act of 1955” for divorce on the
ground of desertion before the Family Court, Aurangabad on 19th September, 2011.
On that day, the leaned Judge of Family Court issued the notice to respondent -
wife returnable on 7th October, 2011. Record further shows that, on 21st September,
2011 summons was sent through the Bailiff on the address of wife mentioned in

the petition. It was returned back unserved with report of the Process Server /
Bailiff dated 17th October, 2011 stating that original respondent wife is not found
on the address mentioned in the summons i.e. N-12, B-Sector. The report of
Process Server / Bailiff Shri. Mhaske (Exh.5) further states that local residents
have stated that respondent is not residing at Sector B of N-12.
[5]
On perusal of first order sheet, we found that, date on the same is
incorrectly recorded by the Family Court as 17.11.2011 instead of 17.10.2011.
The matter was then adjourned for return of notice to 17 th November, 2011 by
allowing application of original petitioner – husband for issuing fresh notice. On
17/11/2011 petition was taken up and initially it was recorded in the order sheet
that summons is returned back unserved. Thereafter, there is an endorsement on
the order sheet that, ex parte order is passed on Exh.No.1 and then Petition came
to be fixed for evidence of original petitioner-husband on 20.12.2011. In this way,
matter proceeded ex parte against the original respondent - wife and ultimately
decree of divorce U/Section 13(1)(i-b) of “ the Act of 1955” on the ground of
desertion came to be passed by the learned Judge, Family court, Aurangabad on
10th February, 2012. Same is impugned before this court, in the present Family
Court Appeal.
[6]
The question which falls for determination is, “Whether the learned
Judge, Family court, Aurangabad erred in passing ex parte decree by holding
service of summons on respondent – wife, as proper and legal.?
[7]
For proper appreciation of the matter, it is apposite to reproduce the
order on Exh.1 passed by the learned Judge of the Family Court, Aurangabad, on
17.11.2011 proceeding ex-parte against original respondent – wife. It reads thus:-

ORDER
Sd/-
Summons report at Exhibit 5 shows that the respondent has
refused to accept the summons. So under such circumstances,
the petition to proceed ex-parte against the respondent.
(Illegible)
17.11.2011
Judge, FC, Aurangabad”
It is thus clear that the marriage petition proceeded ex-parte only on
the basis of report of the Process Server / Bailiff dated 17.11.2011. Let us now
examine the said report in order to ascertain whether the due service was effected
by following all procedural provisions in that regard.
[8]
Perusal of the report of the Bailiff Shri Mhaske at Exh.No.5 shows
that, initially he made an endorsement thereon on 17 th November, 2011 that
original respondent - wife has refused to accept the summons. Then the bailiff
proceeded to give report on separate page on 17.11.2011 itself stating that
respondent wife was found in the court premises at 10.45 a.m., but she refused to
accept the summons. Relying on this report of the Bailiff, the learned Judge,
Family court proceeded to pass ex parte order against the original respondent-wife
which ultimately resulted in passing ex-parte decree of divorce against her.
[9]
Bear look to the summons - form No.1 at Exh.No. 5 shows that, the
Process Server / Bailiff on 17th October, 2011 as well as 17th November, 2011 has
noted that original respondent wife was not available at her given address at N-12,
B-Sector and endorsement dated 17th November, 2011 shows that, she refused to
accept the summons. This prima facie gives an indication that original Respondent
wife on 17th November, 2014 has refused to accept the summons at her given
address at N-12, B-Sector. Thereafter, the Process Severing Officer / Bailiff has
made an endorsement again on the summons in Form No.1 (Exh.5) that he is

submitting separate report. Then on another sheet of paper, Process Severing
Officer / Bailiff Shri. Mhaske has given his report indicating that original
respondent wife, who was available in the court premises of Family Court at
Aurangabad at 10.45 a.m. on 17th November, has refused to accept the service of
summons. Thus, there is reason to believe that, report on separate sheet given by
Bailiff Shri. Mhaske
which is not even on affidavit appears to be given
incorrectly. The same certainly appears to be doubtful. Much substance is,
therefore, found in argument of the learned counsel for the appellant / original
respondent wife that there was no cause for the wife to remain present in the
premises of the Family Court, Aurangabad on 17th November, 2012 and as such
ig
the report of service of summons on her appears to be incorrect and doubtful.
Be that as it may be, let us examine duty of the Presiding Officer of
[10]
the Court in declaring service of the summons as valid and binding, so as to enable
the Court to proceed ex parte against the concerned party. In exercise of the
powers conferred by Section 21 of the Family Courts Act, 1984, the Hon'ble High
Court of Bombay has framed the rules governing the procedure to be followed by
the Family Court. These rules are called as The Family Courts (Court) Rules,
1988. Rule 19 of these rules deals with proof of service of summons. It reads as
under:-
Rule 19
Proof of service of summons :- Unless the Court shall
otherwise order, the service of a summons to appear and answer shal
be proved by the vakalatnama having been filed or when no
vakalatnama has been filed, by evidence showing that the summons
was served in the manner provided by the Code of Civil Procedure.
Such proof shall ordinarily be by the affidavit of the bailiff and (as to
such matters as the bailiff cannot speak to of his knowledge) of the
person who attended the bailiff for the purpose of identification at the
time of service, or of such other person or persons as can speak to the

identity of the person served or to other matters necessary to be
proved in respect of the service.
Thus, in absence of Vakalatnama of the respondent on record of the
[11]
Family Court, the service of summons on the respondent needs to be proved by
showing that the summons is served on such party in the manner prescribed by the
Code of Civil Procedure. Let us, therefore, consider the provisions of the Code of
Civil Procedure in respect of proof of service of summons on the respondent. The
provisions of Order V Rules 17 & 19 are relevant on this aspect and they read thus
:-
ORDER – V
cannot be found :
Rule 17 :- Procedure when defendant refuses to accept service, or
Where the defendant or his agent or such other person as aforesaid
refuses to sign the acknowledgement, or where the serving officer,
after using all due and reasonable diligence, cannot find the
defendant, who is absent from his residence at the time when service
is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable
time] and there is no agent empowered to accept service of the
summons on his behalf, nor any other person on whom service can be
made, the serving officer shall affix a copy of the summons on the
outer door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business or personally
works for gain, and shall then return the original to the Court from
which it was issued, with a report endorsed thereon or annexed
thereto stating that he has so affixed the copy, the circumstances
under which he did so, and the name and address of the person(if any)
by whom the house was identified and in whose presence the copy
was affixed.
Rule 19. Examination of Serving Officer
Where a summons is returned under rule 17, the Court shall, if the
return under that rule has not been verified by the affidavit of the
serving officer, and may, if it has been so verified, examine the

serving officer on oath, or cause him to be so examined by another
Court, touching his proceedings, and may make such further enquiry
in the matter as it thinks fit; and shall either declare that the summons
has been duly served or order such service as it thinks fit.
[12]
Basically service of summons is to be made by delivering a copy
thereof to the concerned party apart from other modes of service prescribed in the
Code of Civil Procedure. In the instant case, the attempt of service is shown to
have been made at the premises of the Family Court, Aurangabad. Perusal of
Rules 17 and 19 of Order V of the Code of Civil Procedure show that in order to
accept the service as valid service, particularly, when the report is to the effect that
the respondent refused to accept the summons then, it become duty of the court to
examine the Process Serving Officer / Bailiff if his report is not on affidavit. Even
if the Process Serving Officer gives his report on affidavit, discretion is with the
court to examine the Process Serving Officer in order to ascertain, whether his
report of is correct or not in order to hold the service valid. After complying with
these mandatory requirements, the court is require to declare, whether the
summons is duly served or not.
[13]
Harmonious construction of Rules 17 and 19 of Order V of the Code
of Civil Procedure goes to show that acceptance of report of the service of the
summons is a serious and solemn act and not merely an empty formality. Object to
serve summons on the respondent is to enable him to know about institution of the
proceedings against him and enable him to resist the said proceeding filed against
him. Law of procedure is framed in such a manner that principle of natural justice
is scrupulously followed. The basic requirement of this rule is that the decision
should not be reached behind back of the affected party and such party should not
be precluded from participating in the proceeding. Therefore, it becomes the
prime duty of the Court concerned to see that all procedural requirements are duly
adhered to prior to proceeding ex-parte against the concerned party to the
litigation.
:Proof of due service of summons is essential condition for proceeding
ex parte against the concern respondent. If record of case in hand is perused, it
appears that though the Process Serving Officer / Bailiff has submitted his report
stating that, respondent wife has refused to accept the summons in the court
premises at 10.45 a.m. of 17.11.2011, he has not filed the same alongwith his
affidavit. Another endorsement on summons Exh.No.5 shows that, the Process
Serving Officer has made efforts to serve the original respondent - wife at given
address i.e. N-12, B-Sector, 48/7, T.V. Center, HUDCO, Aurangabad, however
said report also not accompanied with an affidavit. Order passed below Exh.No.1
on 17.11.2011 by which the learned Judge, Family Court proceeded ex parte
against the respondent – wife, does not shows that mandatory provisions as
envisaged by Rules 17 and 19 of the Code of Civil Procedure were complied with
by the learned Judge of Family Court. There is no record to show that the Process
Serving Officer / Bailiff was examined by the learned Judge Family Court,
Aurangabad prior to proceeding ex parte against the respondent wife. As report of
the Process Serving Officer / Bailiff at Exhibit 5 relied upon by the learned Judge
was to the effect that original respondent / wife has refused to accept the summons
when it was sought to be served on her, as per mandate of Rule 19 of Order V of
the Code of Civil Procedure, it was incumbent on the part of the learned Judge to
examine said Process Serving Officer / Bailiff on oath or to cause him to be so
examined by another Court touching his proceedings. Obviously, the intention of
such examination is to see that chances of a false endorsement of such attempt to
serve the summons and refusal thereof are minimized. If the Process Serving
Officer / Bailiff is examined on oath and during such examination, it is found that
the statement so made by him is false, then such Process Serving Officer / Bailiff
makes himself liable for prosecution. Thus, there is inbuilt guard against false
report regarding service of summons. The learned Judge of the Family Court has
not taken precaution to adhere to the provisions of Rule 19 of the Code of Civil
Procedure while passing order below Exhibit 1 regarding service of summons on
original respondent / wife. In fact, it is seen that the said order below Exhibit 1

was passed in a casual manner not even declaring that the summons has been duly
served on respondent/wife. There seems to be no application of mind to this aspect
by the learned Judge of the Family Court at Aurangabad. At least the order below
Exh.No.1 does not show such application of mind.
[15]
Signature of the original petitioner is appearing on summons at
Exh.No. 5 as if to show that refusal to accept the summons by original respondent
– wife is in his presence. Report on separate sheet given on 17.11.2011 does not
bear such signature. Rule 19 of the Family Court Rules, 1988, shows that if
bailiff attempted to serve the summons and person refused to accept it then the
person who accompanies the Bailiff for the purpose of identification, at the time of
service is also required to file his affidavit. In the case in hand, such affidavit of
the original petitioner is also missing.
Thus even provisions of Rule 17 do not
seem to be complied with. For all these reasons, it becomes crystal clear that the
learned Judge, Family court erroneously proceeded ex parte against the
Respondent-wife and, therefore, impugned judgment and decree of dissolution of
marriage passed by the learned Judge of Family Court, Aurangabad dated 10 th
February, 2012 in Petition No.A-311/2011 cannot be sustained. It needs to be set
aside for non-compliance of the Rules mentioned supra, so also the same is
violating the principles of natural justice as no proper opportunity of hearing was
accorded to the Respondent-wife. Hence, we proceed to pass the following order
:-
ORDER
(i) The Family Court Appeal No.13 of 2013 is allowed.
(ii) Impugned Judgment and decree dated 10th February, 2012
passed by the learned Judge, Family Court, Aurangabad in Petition
No. A-311/2011 between the parties, dissolving their marriage by
decree of divorce on the grounds of desertion, is quashed and set
aside.

Petition No.A-311 of 2011 is remanded back with directions to
the learned Judge, Family Court, Aurangabad to decide the same
(iv)
afresh after granting an opportunity of hearing to both the parties.
Record & Proceedings be sent back to the Family Court,
Aurangabad, immediately.
No order as to costs.
(vi) Consequently, pending Civil Application is also disposed of.
(v) 
(B.P. DHARMADHIKARI, J.)
(A.M. BADAR, J.)

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