PRAKASH KUMAR PATTANAYAK Vs. PRASANTA KUMAR PATNAIK

JUDGEMENT

(1.) THE present writ petition has been filed challenging the order dated 24.09.2010 passed in C.M.A. No.607 of 2010 by learned Civil Judge (Sr. Division), First Court, Cuttack. Petitioners have filed a petition under Order 23 Rule 3 proviso of the Code of Civil Procedure for setting aside the consent decree passed earlier. Besides, they have filed C.M.A. No.607 of 2010 under Section 151, C.P.C. for an order of ad -interim injunction in respect of the suit scheduled property, apprehending that the opposite party may alienate the property in the meantime. The learned Court below refused to entertain the petition under Order 39, Rule 3, C.P.C. read with Section 151 thereof for grant of ex parte ad -interim injunction and passed order to issue notice to the opposite party by special process. The process -server, as found from the endorsement in the notice, on 22.09.2010 went to the residence where the opposite party usually resides, for service of notice. In absence of the present opposite party, he served notice on his wife, who took the notice, read the same but refused to receive the notice. On the return of service, learned Court below, vide order dated 24.09.2010, held the service not to be sufficient and passed order for issuance of notice to the opposite party by registered post with AD. From the report of the process -server (Annexure -7), it is clear that when the process -server went to the house where the opposite party usually resides, to serve the notice, the opposite party was found absent, and in his absence the process -server served the notice on the wife of the opposite party. It is the further endorsement of the process -server that the wife of the opposite party read and understood the contents of the said notice but refused to accept the same. Finding no way out, the process -ever hanged the notice and copy of the petition on the door of the house of the opposite party and informed the Court accordingly.

(2.) TAKING into consideration the report of the process server (Annexure -7), the notice is to be held as sufficient, on refusal by the wife of the opposite party to accept the same, even after reading and understanding the contents of the notice, especially in view of the provisions contained in Rules 15 and 17 of Order 5, C.P.C. When the record of the Court, as found from the report of the process -server vide Annexure -7 in the present case, shows that the service was effected on the defendant by affixture, it is to be presumed that all requirements necessary for service by affixture were complied with. And it is open for the opposite party to rebut such presumption on appearance. I am inclined to take such a view in as much as in the present case on refusal by the wife of the opposite party to sign to acknowledgement, one of the three conditions prescribed in Rule 17 of Order 5 has been satisfied for effecting the service by affixture.

(3.) THE question involved in the writ petition being a question of law on the point of sufficiency of service of notice only, I feel inclined to dispose of the same at the stage of admission without issuing any notice to the opposite party. In that view of the matter and in view of my discussion supra, the writ petition is disposed of with a direction to the learned Court below to hear the petition for injunction filed by the petitioners and dispose of the same on merit in accordance with law, within a period of two weeks from the date of receipt of a copy of this order. If within the said period the opposite party enters appearance, he should be given an opportunity of being heard, and for that purpose learned Court below shall have discretion to allow at least ten day's time to the opposite party from the date of his appearance, if he however appears within the period of two weeks specified above. The entire exercise is to be completed within a period of four weeks. Needless to mention here that even after passing of the order on the point of interim injunction, learned Court below has the necessary discretion to vary the same in accordance with law, on proper application being filed by the opposite party to that effect, on his appearance.