CHANDRA SHEKHAR BANGWAL Vs. SHAMBHAVI DEVI
HIGH COURT OF UTTARAKHAND
Chandra Shekhar Bangwal
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(1.) Delay Condonation Application No. 8191 of 2011
(2.) THERE is more than two years delay in preferring the review application. In the meantime the appellant has got married. The appeal has been allowed and a decree for divorce has been granted on the ground that the review applicant filed a proceeding against the appellant and his family members alleging commission of offence punishable amongst others, under Section 498 -A, 307 etc. of I.P.C. The Learned Counsel for the review applicant submitted that initially her client succeeded in the said criminal proceedings, but later on she lost before the appellate court, as the appeal against convection has been allowed. The Learned Counsel further submitted that her client filed a revision application which has since been dismissed. At the same time, it appears that while the appellate order under review was passed, the court felt that there was sufficient service upon the respondent, when the record show that the service was sought to be effected through Process Server and, the Process Server in his report stated that at the time of effecting service, the review applicant was not available and, her father refused to accept the summons. At the same time, there is no affidavit of service affirmed by the Process Server. In the circumstances, it appears to us that the appellate court before passing the order under review could not proceed on the basis that there was sufficient service upon the review applicant, inasmuch as, in the absence of an affidavit by the Process Service, it is mandated by Order V Rule 19 of the Code of Civil Procedure that the court must examine the Process Server, which was not done in the instant case. In any event, in the absence of the person intended to be served, the service could only be effected upon an authorized agent of the person intended to be served and, the father of a married woman, despite being at loggerhead with the husband, cannot be treated as the authorized agent of the said married woman. In the circumstances, the matter has become complicated as it has now become a double edged sword. It appears to us that, in the background of what has been stated, even if for infraction of law the judgment and order under review is recalled, the court may ultimately be obliged to grant decree on the ground of cruelty meted out by the wife to the husband. In the circumstances, since the matter of permanent alimony has not been dealt with, it would be appropriate on the part of review applicant to apply for permanent alimony. In order to give the review applicant to consider all these aspects of the matter, we adjourn this matter for a month.;
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