Vinod K. Sharma, J. - (1.) Present revision petition has been filed against the order dated 29.4.2002 passed by the learned Civil Judge (Senior Division), Faridabad vide which application moved by the petitioner for setting aside the ex parte decree was dismissed and the appeal filed against that order has also been dismissed by the learned Additional District Judge, Faridabad.
(2.) The facts which are not in dispute are that the suit for recovery was filed on 19.4.1989 and on the same date notice was issued for 28.7.1989. Though the order passed on 19.4.1989 shows that the Court has mentioned that the service would be effected on filing of process fee, summons forms, copies of plaint as well as registered A.D.coveRs. However, it is not in dispute that summons were sent only through registered covers and even though there was no proof of service on presumption of service ex parte proceedings were taken against the petitioner and ex parte decree was passed on 29.10.1990. It was only 22.3.1991 that the petitioner came to know about the decree when Bailiff approached them for the execution of the same and on that very day the application was moved for setting aside ex parte decree. However, learned Courts below by treating that defendant were served on the basis of presumption of service rejected the application. It is not in dispute that in the year 1989 the Court was bound to serve the defendant in pursuance of Order 5 Rule 19-A of the Code of Civil Procedure (for short the Code) which provided that resort by registered post could be taken simultaneously with personal service.
(3.) In the present case, there is clear violation of Order 5 Rule 19-A of the Code which was held to be mandatory by this Court in the case of Smt. Parmilesh v. Vinod Kumar (1997-1)115 P.L.R. 178, Para 10 of the judgment reads as under: From the trial Court's record, it is evident that in the matrimonial case on 3.1.1994 it was ordered that fresh process fee with her correct address be submitted by husband. There was no order that the notice be sent by registered post. From that record it is evident that on 24.1.1994 the husband paid process fee with registered cover; no order was obtained from the matrimonial Court and notices were sent by registered post to the respondent; no ordinary process was issued. Order 5 Rule 19-A provides that "that Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgement due...." Thus, it is obvious that the notices sent by registered post were sent against the aforementioned provision without obtaining the order from the matrimonial Court. Provisions of this Rule 19-A are mandatory. Legislature in its wisdom has cast a duty on the Court to issue summons by ordinary process also when he orders service through registered post. Non-compliance of this rule is not a mere irregularity. As 1 have mentioned above in this case notice was sent by registered post without obtaining order from the Court to that effect. That gives an inkling of the intention of the husband. Thus, the report of the postman should not have been relied on by the learned District Judge. Further there is oath against oath. The appellant has stated on oath that no notice was even tendered to her. She never refused to accept any notice. It is apparent that the husband managed to get the notice sent by registered post through the Clerk of the Court. It is not impossible for such a husband to get the endorsement of refusal made by a postman on such a registered letter. No doubt, postman has been examined by him, but under the aforementioned circumstances, the District Judge should not have relied on his oath. Thus, in my considered view, it is apparent on record that the appellant was not served in accordance with law.;