Before Resorting To OV R15 CPC, Must Show Defendant's Absent From Residence & No Likelihood Of Being Found: Jammu & Kashmir High Court

A bench comprising Justice Sanjay Dhar observed,

"It has also to be shown that the defendant has no agent empowered to accept the service of the summons on his behalf. Only when the conducts above are fulfilled, O V, R15 can be taken recourse to".

The observations were made while hearing an appeal in terms of which the appellant had challenged an order passed by the Principal District Judge, Kathua, whereby his application under Order IX Rule 13 of the Code of Civil Procedure(CPC) for setting aside ex parte judgment and decree passed by the same court, had been dismissed.

The respondent herein had filed a petition for dissolution of marriage under section 13 of the Jammu and Kashmir Hindu Marriage Act before the trial court. After summons were issued to appellant, the same were stated to have been served upon her father. When the appellant did not appear before the court below on the date fixed, she was proceeded ex parte and an ex parte judgment and decree of divorce came to be passed under section 13(1)(ii)(v) of the Jammu and Kashmir Hindu Marriage Act in favour of the respondent.

Aggrieved of the same the appellant had filed an application under Order IX Rule 13 of the CPC seeking setting aside of ex parte judgment and decree and an another application under section 5 of the Limitation Act seeking condonation of delay was also filed by the appellant before the trial court on 13.10.2018, both of which came to be dismissed.

The appellant challenged the impugned order primarily on the ground that the service of the summons has not been effected upon her in terms of Order V Rule 15 of the CPC as the conditions contained therein have not been satisfied. Appellant submitted that the respondent knew that the appellant was not residing with her father but was residing at Lakhanpur and in spite of this he gave wrong address of the appellant in the divorce petition so as to obtain an ex parte decree against her.

Respondents contended that the appellant had the knowledge about the pendency of the petition and she had been duly served through her father but she did not choose to appear before the court.

After considering the rival contentions Justice Dhar observed Order IX Rule 13 CPC( Setting aside Ex-parte Decrees) that for a defendant to succeed in an application for setting aside ex parte decree, he has to satisfy the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing.

Pointing out to the fact that service of the summons upon the appellant has been effected by taking resort to provisions contained in Order V Rule 15 of the CPC, the bench explained that before resorting to provisions contained in Order V Rule 15 of the CPC, it has to be shown that the defendant is absent from his residence at the time when the service of the summons is sought to be effected and there is no likelihood of his being found at the residence within a reasonable time.

The bench after examining the record noted that summons were issued by the trial court to the appellant, at the address of her father’s house located at Ward No. 15, Patel Nagar, Kathua and the report of the Process Server revealed that the appellant was not present at the said address but her father conveyed to Process Server that she had gone out of station whereafter he received the summons by endorsing his signatures thereon.

Court further noted that on October 28, 2017 statement of the Process Server was recorded on oath by the learned trial court in which he confirmed the veracity of the reports on the two summons abd the trial court relying upon the report of the Process Server declared that the appellant had been served through her father and proceeded ex parte against her.

Noting that the trial court had made several attempts to serve summons upon the appellant, the court recorded that her father had accepted the summons informing the Process Server that he would convey the same to the appellant, without informing the Process Server that the appellant was not residing with him nor did he come in the witness box before the trial court to state so, was sufficient for the trial court to infer that the appellant resided with her father.

Commenting further on the subject the bench said that since the appellant had not also empowered any agent to accept service of summons on her behalf, the conditions mentioned in Order V Rule 15 of the CPC were satisfied in the instant case and accordingly, the trial court had rightly declared that the appellant has been duly served with the summons.

"Once she did not appear before the learned trial court, there was no option left before the trial court but to proceed ex parte against her and to pass ex parte judgment and decree on the basis of ex parte evidence led by the respondent herein", the court said.

Finding the appeal without merit, the bench dismissed the same.

Case Title: Dr Kiran Bala Vs Dr Ashwini Kumar Singh Jasrotia.

Citation: 2023 LiveLaw (JKL) 39

Coram: Justice Sanjay Dhar

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