LAXMIBAI Vs. KESHRIMAL JAIN

JUDGEMENT

(1.) Aggrieved by the decree of judicial separation, passed by the District Judge, Gwalior on 15-9-1981, the appellant-wife has preferred this first appeal under S. 28 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act), though originally this appeal was wrongly presented under S. 96 of the Code of Civil Procedure.

(2.) The appellant is the wife and the respondent is the husband. Respondent filed an application in the Court of District Judge, Gwalior, under S. 13 of the Hindu Marriage Act, 1955 for a decree of divorce an the ground of cruelty. The process was issued by the District Judge, by Registered-Post, but the endorsement on the envelope is that the appellant-wife Laxmibai refused to accept it. Hence, as mentioned in para 3 of the impugned judgment, the District Judge proceeded ex parte against the appellant. He recorded the evidence of the respondent - Keshrimal Jain and pronounced his judgment on 15-9-1981. Against this judgment the appellant preferred appeal along with an application for condonation of delay. The delay was condoned vide order dated 18-9-1984 and the appeal was admitted for hearing.

(3.) I have heard the learned counsel for both the parties. The main contention of the appellant is that it has wrongly been written on the envelope, sent by registered post, that the appellant has refused to accept the same. Shri Ramji Sharma learned counsel for the appellant, strongly argued that the ex parte order passed by the District Judge was not only erroneous but it is also based upon the defective service of process itself. In para 3 of the impugned judgment, the District Judge has described as in what way the process was sent and how it was refused. I examined the envelope and the endorsement of the postal authorities 'refused to accept'. This endorsement carries with it presumption of its correctness, unless the contrary is proved. This Court in the case of Chandransingh v. Akhatar Ali and Co., 1969 MPLJ Notes No. 21 page 14 has decided that the endorsement of refusal made by the Process-server does not require proof by evidence as summons is a public document. Thus, there was no reason why the trial Court should not have presumed the service to be proper and in correct manner.