r 1'^. % ^ •t.^s ^^ IN THE HON»BLEHIGH COURT OF CHHATTISGARH (^ ^CM. No. AT BILASPUR /^ of 2010 Oivision BendT Of2010 ^) APPELLANT Non-applicant Shashi Bhushan Prasad Gupta, aged about 30 years, S/o. Shri Maheshwari Prasad, R/o. New Loco Colony Qr.No.975/3, Railway colony, Bilaspur, Tahsil and District Bilaspur (C.G.) Versus ^.^•"" ^f^ \^a RESPONDENT Applicant •^-V<T"^.\V^' ^^ /Arti Devi, aged about 24 years, ' W/o. Shri Shashi Bhushan Prasad Gupta (D/o. Shri Bhulan Sao) presently residing at Village 65 Post Tilari, P.S. Chenari, District Rohtas (Bihar) MISCELLANEOUS APPEAL UNDER SECTION 19 QF THE FAMILY COURTS ACT WiS^' ^^s-sa^ h\^<^ ^ HI^H COURT OF CHH^TTIS^ARH <4T BILASPUR DIVISION BENCH: HON'BLE SHRI I.M.QUDDUSI & HON'BLE SHRI N.K <46ARWAL. JJ. P.A. fMrNo. 112/2010 APPELLANT Non-applicant RESPONbENT Applicant Vs Shashi Bhushan Prasad ^upta Arti Devi ^ Present: Mr. Anilkant ^upta, Advocate for 1+ie oppellflmt. JUD6MENT (Oran (Passcd on 28th August, 2010) I.M. Quddusj. J; 1. Heard on admission. 2. The appellant has filed this first appeal against the order dated 13.07.2010 passed by the Family Court, Bilaspur in Civil M.J.C. No.9/2006 whereby applications of the respondent herein filed under Order 9 Rule 13 CPC & Section 5 of the Limitatjon Act have been allowed and ex-parte judgment and decree dated 23.06.2004 has been set aside. 3. Brief facts of the case are that a suit for divorce was filed by the appellant on 5.5.2003 which was registered as Civil Suit No.237-^/04. On filing of the civil suit, the court below issued summons to the defendant/respondent herein and the same could not be served on the defendant, therefore, service has been effected through publication wherein name of the respondent was mentioned as 'Aarti Kumari" instead of "Aarti Devi", but on this publication aiso the defendant did not turn up and therefore, on 5.8.2003 the court befow passed order to proceed ex-parte against her. Thereafter the appellant moved an application under Order 6 Rule 17 of the CPC for correction of the name of •^ ...^ ^ <-r ^ the defendont/respondent herein as her name was wrongly mentioned as 'Aarti Kumari" in place of "Aarti Devi". On the said application the court below issued 'Hamdust notice' to the defendant/respondent herein and fixed the case for 15.11.2003. The said 'Humdast notice' issued to the respondent was returned un-served with a note that 'the respondent refused to accept the same\ However, since from 15.11.03 to 15.5.04 the post of Presiding Officer of the Family Court, Bilaspur remained vacant, the Reader concerned fixed another date and ultimately, on 23.6.2004 ex-parte decree was passed in favour of the appellant. 4. On coming to know about the said ex-parte decree of divorce, the respondent herein filed an application under Order 9 Rule 13 CPC for setting the said ex-parte decree stating therein that on 5.5.2005 on being informed by her relatives that the appellant is going to perform second marriage, she enquired and came to know about passing of an ex-parte divorce decree in favour of the appellant. Further, in the application the respondent herein has specifically mentioned that no notice in any way was served upon her. Along with said application, the respondent has also filed an application under Section 5 of the Limitation Act. 5. The court below/ after hearing the parties and considering the facts and circumstances of the case, has allowed the appljcation vide impugned order and set aside the ex-parte decree dated 23.06.2004, hence this appeal. -.- 6. We have heard learned counsel for the appellant and perused the impugned order passed by the Family Court, Bilaspur. 7. The learned Family Judge while setting aside the ex-parte decree has given the reasons inter-alia to the effect that ex-parte proceeding after refusa! of 'Hamdast notice' was not proper, ..^,•1 .„ "^^^•^ -\ ^ ^. 't... - ^ o \- 8. In the above regard it is necessary to peruse the provisions of Clause (4) of Rule 9 (A) of the Order 5 CPC, which reads as under:- "(4) If such summons, when tendered, is refused or if the person served refuses to sign an acknowledgement of service or for any reason such summons cannot be served personally, the Court shall, on the application of the party, re-issue such summons to be served by the Court in the same manner as a summons to a defendant." 9. From per-usal of the impugned order it is evident that on 5.8.2003 an ex-parte order was passed by the court below against the defendant/respondent after pubiication of notice in which name of the defendant/respondent was wrongly mentioned as 'Aarti Kumar', in place of "Aarti Devi". Thereafter, on moving application for correction by the appellant herein, humdast notice was issued to the defendant/respondent herein and after returnof Humdust notice with a note that the defendant refused to accept it. the court below passed ex-parte decree dated 23.6.2004. Whereas, as per provisions of the Order 5 Rule 9 (A) (4) of the CPC, quoted above, the court below was required to re- issue the summons to the defendant/respondent. Thus, it is apparent that ex-parte proceedings against the defendant/ respondent were not iri accordance with Jaw. 10. On the basis of above discussjons, we are of the opinion that the learned Family Judge has not committed any illegality or infirmity in passing the impugned order rather the court below was correct in holding that the ex-parte proceedings against the respondent were not proper. 11. In the result, the appeal has no substance, the same deserves to be and is hereby dismissed in limine. No order as to costs. >Slvo Sd/- I.M.Quddusi Judge Sd/- N.K. Agrawal Judge < f^ ^ ^. ^