IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2065 of 2011(O&M) Date of decision: 02.09.2011 Smt.Aditi Khurana …..Appellant versus Kamal Khurana ……Respondent CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Augustine George Masih Present: Mr.Rajesh Arora, Advocate for the appellant Mr.Sandeep Sharma, Advocate for the respondent Jasbir Singh, J. (Oral) This appeal has been filed against an order dated 6.11.2009, vide which, in an ex-parte manner, judgment and decree was passed against the appellant under Section 13(1)(ia) & (ib) of the Hindu Marriage Act, 1955, ordering dissolution of marriage between the appellant and the respondent, which was solemnized on 26.1.2004. The appellant has sought recall of the order, mentioned above, on the ground that she was never served in those proceedings. It is further stated that she was ordered to be proceeded ex-parte on 15.6.2009, on the date for which, she never received any notice. At the time, when notice of motion was issued, record was requisitioned. We have seen the record. On 23.5.2009, following order was passed by the trial Court:- “Present: Sh.Rajesh Bhardwaj, counsel for petitioner FAO No.2065 of 2011(O&M) Sh.Ashok Jiwan Sharma, counsel for respondent Ld. Counsel for respondent has stated that he do not want to contest the case as he has no instructions from his client. Let court notice to respondent be issued for 5.6.09. Sd/- ADJ /GGN 23.5.09” Order shows that the counsel for the appellant made a statement that he does not want to contest the case as he has no instructions from his client. Taking note of the same, Court below ordered that a fresh notice be issued to the respondent for 5.6.2009. On that date, following order was passed by the trial Court:- “Present: Sh.Rajesh Bhardwaj, counsel for petitioner Case received by transfer. It be checked and registered. Court notice issued to the respondent not received back either served or unserved. Now fresh court notice to the respondent be issued for 15.6.2009. Sd/- S.K.Goyal District Judge, Family Court, Gurgaon. 5.6.2009.” Service was not complete. Fresh notice was issued to the appellant-respondent for 15.6.2009, on which date, the trial Court passed the following order:- “Present: Sh.Rajesh Bhardwaj, counsel for petitioner Sh.Ashok Jiwan, Advocate for the respondent has got his statement recorded to the effect that the respondent does not want to contest the petition hence be proceeded against exparte. In view of the statement, respondent is hereby 2 FAO No.2065 of 2011(O&M) proceeded against ex parte. Now to come up on 22.8.09 for ex parte evidence. Sd/- S.K.Goyal District Judge, Family Court, Gurgaon. 15.6.2009.” Contention of counsel for the appellant that she was never served after 23.5.2009, appears to be correct. We have seen the trial Court’s file. Summon which was issued for 15.6.2009, as per report made by the Process Server, was served upon Sh.Ashok Jiwan Sharma, Advocate District Court, Gurgaon only and it never reached the appellant. There is nothing on record to show that after 23.5.2009, the said Advocate has put on record fresh power of attorney or ever the appellant was contacted. Justice should not be done but it seems to have been done. In the present case, we are satisfied that before passing the judgment under challenge, an opportunity of hearing was not granted to the appellant. Under the circumstances, we allow this appeal, set aside order, under challenge and remand the matter to the Family Court at Gurgaon, to decide it afresh. Parties are directed to appear before the trial Court on 4.10.2011. It is expected that the trial Court will make an effort to decide the matter expeditiously. (Jasbir Singh) Judge 02.09.2011 (Augustine George Masih) gk Judge 3