GOLAKHA BIHARI SUBUDHI Vs. PATITAPABAN BISOI

JUDGEMENT

(1.) THIS writ application is directed against the order dated 28.2.2009 passed by the learned Judge, Family Court, Cuttack in Misc. Case No. 73 of 2008 rejecting an application filed by the Petitioner under Order 9, Rule 13 Code of Civil Procedure to set aside the ex parte order dated 8.4.2008 passed in C.P. No. 209 of 2007.

(2.) CUSTODY of Purusottam Bisoi, the minor child is the dispute between both the parties. The present Petitioner is the maternal grand -father of the child whereas the opposite party is the father of the child. The opposite party had filed C.P. No. 209 of 2007 to take, custody of the minor child and the said Civil Proceeding was disposed of ex parte by order dated 8.4.2008 in his favour. An application was filed by the Petitioner under Order 9, Rule 13 Code of Civil Procedure for setting aside the said ex parte order dated 8.4.2008 on the ground that he had no knowledge about the proceeding and had never been served with notice in the said case. The said petition was resisted by the opposite party on the ground that not only summon was served on the Petitioner through process server but also through post, but the Petitioner did not choose to contest the case and therefore, no sufficient cause having been shown by the Petitioner for his non -appearance in court, there is no reason to set aside the ex parte order. The learned. Judge, Family Court, Cuttack on analysis of the oral and documentary evidence adduced in course of hearing of the said Misc. Case filed under Order 9, Rule 13 Code of Civil Procedure came to hold that the Petitioner had been served with notice but did not appear and contest and therefore, has failed to show sufficient cause for his non -appearance in the court. With the above finding, the application for setting aside of the ex parte order having been dismissed, this writ application has been filed.

(3.) WE have carefully gone through the evidence adduced before the court and also the service return as well as postal acknowledgement. The Petitioner has examined himself as P.W.1 and though in his evidence on affidavit he stated that he had not been served with notice, in cross -examination he stated that the year previous to his examination in court he came to know about the ex parte order having been passed against him from his wife. He was examined on 17.1.2009 and filed the application for setting aside the ex parte order within one month therefrom. However, we find that the application under Order 9, Rule 13 Code of Civil Procedure was filed on 5.5.2008, i.e., almost three and half months after the Petitioner came to know about the ex parte order and no reason has been assigned by him as to why there was delay in filing the application. On the other hand, the opposite party examined himself as O.P.W.1 and stated that as per his identification, the process server served the notice on the Petitioner and the Petitioner received the same in presence of one Kunja Mallick. His evidence is supported by the process server who was examined as O.P.W.2. The process server has specifically stated in his evidence that on 27.4.2007 he went to the village of the parties and reached the house of opposite party who accompanied him to identify the house of the Petitioner. The Petitioner who was present in the house was offered with a copy of the summon and he not only received the same but also signed on the reverse of the summon. One Kunja Mallick who was present also signed as a witness. However, the said Kunja Mallick who was examined as P.W.2 denied to have signed on the back of the summon. This being the nature of oral evidence, we looked into the signature of the Petitioner available in the Vakalatnama filed before the trial court as well as before this Court and compared the same with that of his signature appearing on the back of the service return as well as the postal acknowledgement, Ext.1. On a comparison of the handwritings appearing in the said three documents, it appears that the signature appearing in the Vakalatnama is exactly the same appearing in the postal acknowledgement, Ext.1. But there is little difference in the signature appearing in the Vakalatnama and the service return. Therefore, even if the contention of the learned Counsel for the Petitioner is accepted to the extent that the Petitioner had not been served with summons through the process server, there cannot be any doubt in mind that he had been served with summons through court and Ext.1, the acknowledgement clearly establishes that. Apart from the above, we also compared the signature of the witness Kunja Mallick appearing in the service return with that of his signature appearing in the deposition and we do not find any difference. Therefore, we agree with the findings of the trial court that Kunja Mallick is a signatory to the service return and his evidence in court is not trustworthy.