VIDYABAI Vs. SANTOSH KUMAR RAI

JUDGEMENT

(1.) ORDINARILY I would not have interfered with the impugned judgment and decree of the Court below on the ground of non service of summons of suit on the appellant. According to me, in that case the remedy for the appellant was to file an application under Order 9, Rule 13 C.P.C. for setting aside the exparte decree against her on the ground of non -service of summons. However, in the present case I find that without following the proper procedure the Court directed issue of summons by ordinary course and by registered post simultaneously. The summons by ordinary course was not returned, but on the basis of postal endorsement about refusal to accept the notice, the Court below held the service good and proceeded to pass an exparte decree after proceeding exparte against the appellant and after recording exparte evidence of the respondent.

(2.) BEFORE I proceed to deal with the relevant provisions about service of summons etc., I may point out that on 20.11.1989, the Court below was pleased to direct registration of the case. Simultaneously it was ordered that summons by registered post and through Court be issued against the appellant. On the next date of hearing, i.e., on 9.1.1990 it was recorded that summons not returned, await till 16.1.1990. Again on 16.1.1990, the summons was found to have not come after service. Accordingly an order was made for payment of fresh PF for service of summons by registered post on the appellant. To sum up, on the first date of appearance a direction was made for simultaneous issuance of summonses by registered post and by ordinary course and without awaiting service report of these summonses by ordinary course and by registered post, the Court below again made a direction on 16.1.1990 for fresh summonses by registered post only. Again on 26.2.1990, a direction was made for service of summons by registered post and by ordinary course after recording a finding that the notices earlier issued had not come back. The case was fixed for 2.4.1990 awaiting the service report. Without awaiting the case up to 2.4.1990, the Court below in undue haste took up the case on 6.3.1990 and on the basis of postal endorsement about refusal, held the service good, proceeded exparte against the appellant and fixed the case for exparte evidence on 23.3.1990 and then to 10.4.1990. On that dates, exparte evidence was recorded and thereafter on 18.4.1990 the impugned exparte judgment was delivered.

(3.) IN the result, this appeal succeeds and it is hereby allowed. The impugned exparte judgment and decree of the Court below are set aside and the case is remanded to the Court below with a direction to decide it afresh after giving both the parties reasonable opportunity of being heard. In the circumstances of the case, I make no order as to costs of this appeal.