RAJIV NARAIN RAINA, J. - (1.) THIS is an appeal against the order dated 25th January, 2013 passed by the District Judge, Narnaul granting an ex parte decree of divorce to the respondent -husband in a petition under S.13 of the Hindu Marriage Act, 1955. The facts are that the respondent filed a petition under S.13 of the Act for dissolution of marriage solemnized between the appellant and the respondent. When the petition came up for hearing before the learned Additional District Judge, Narnaul notice of the petition was issued to the respondent for 13th January, 2010 including through dasti summons, if desired. On 13th January, 2010 the learned Additional District Judge, Narnaul proceeded ex parte against the respondent, the appellant before this Court by passing the following order: - "Present: Sh. J.S. Dhillon, Adv. for the petitioner Notice issued to respondent received with the report of refusal. Case called several times since morning. But none has appeared on behalf of the respondent. Waited sufficiently. Hence, respondent is proceeded against exparte. Case is adjourned to 18.1.2010 for ex parte evidence of the petitioner."
(2.) IT is the case of the appellant -wife that the grant of ex parte decree of divorce dissolving the marriage between the parties came to her knowledge on 23rd February, 2010 when she received a telephonic call inquiring about the matrimonial status of the respondent and whether divorce had been granted to the parties with mutual consent. On getting to know of this turn of events, the appellant moved an application under Order 9 Rule 13 CPC for setting aside the judgment and decree dated 19th January, 2010. It was pleaded that the appellant was never served nor had she ever refused to receive summons from Court from any process server and thus the report of refusal had been prepared by the respondent party in connivance with the process server and the Nazar stationed at Behrod, in the State of Rajasthan. In response to the application, the husband pleaded that summons for service of the appellant wife were taken dasti by one Naveen Kumar, Advocate who took them by hand to Behrod and entrusted the same to the process serving agency at the Civil Court at Behrod. The only question which arises in this appeal is whether there was due service by refusal upon the appellant. Mr. Jai Vir Yadav, learned counsel appearing for the appellant - wife submits that the procedure laid down under Order 5 Rule 17 of the Code of Civil Procedure, 1908 (for short "the Code") was not followed. The provisions of Order 5 Rule 17 of the Code require that if a person refuses to acknowledge the receipt of summons, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house where the defendant ordinarily resides and then return the summons with a report with an endorsement to that effect. This procedural rule also requires that the name and address of a person who identifies the house and in whose presence the copy is affixed is also required to be mentioned. Though the rule is procedural yet it is substantive in nature looking to the far reaching consequences that could ensue from departure. It is the submission of Mr. Jai Vir Yadav that procedure was not followed nor complied with nor has been noticed or dealt with in the impugned judgment which is a serious flaw sufficient to upturn the verdict. It is his further submission that the learned District Judge, Narnaul has not had due regard to the provisions regarding service of summons as contained in Volume IV Chapter 7 Part B of the High Court Rules & Orders which deals with the heading "Proof of Service" contained in sub chapter (c) Rule 3 Sub Rule V which speaks of service by affixation under Order 5 Rule 17. The Court is enjoined upon a duty in such like cases to satisfy itself after taking affidavit of the process server regarding reasonable efforts made to serve the defendant and then declare whether the summons were duly served. There is no such declaration recorded by the learned trial Court and as such in the absence of the same it cannot be said that service was duly effected on the appellant. The submission is that on this score alone, the impugned decree is liable to be set aside. Besides, Appendix 1 of Chapter 7 Part D of the High Court Rules and Orders provides a proforma required to be submitted by the process server to accompany the return of summons. In this way, the report Ex.RW1/B submitted by Rajesh Kumar does not satisfy the requirements of law.
(3.) RAJESH Kumar process server appeared as respondent witness No.1 before the trial Court. He was not able to depose that he had served summons which were refused by the appellant in terms of the procedure laid down under Order 5 Rule 17 of the Code and of the legal requirements of satisfactory proof of service set down in the High Court Rules and Orders issued by this Court. The so -called process server did not bother to get identification of the appellant ascertained by associating any respectable member of the village namely Panch, Sarpanch, Lambardar or Chowkidar of the village in Rajasthan. Not even a neighbour of the appellant was associated while recording refusal of the acceptance of summons to prove that the respondent -appellant was duly served of the proceedings at Narnaul the State of Haryana. To make matters worse, the report Ex.RW1/B does not record the date when the service was allegedly refused and, therefore, the evidence of RW1 Rajesh Kumar is untrustworthy and deserves not to be relied upon.;