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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

FIRST APPEAL NO. 2815 OF 2017
WITH CA/9798/2017 IN FA/2815/2017

1 Jayshri Gajendra Mahajan,
Age 30 years, Occu. Nil

2 Kanak Gajendra Mahajan,
Age 8 years, Occu. Education,
U/g through Appellant No.1
Both R/o. C/o. Subhash Vithal Navvade,
R/o. Bhadgaon (Peth),
Tq. Bhadgaon, Dist. Jalgaon.
.. Appellants
Versus

Gajendra Pandit Mahajan,
Age 37 years, Occu. Service,
R/o. Near Saibaba Temple,
Lalbag Burhanpur,
Tq. and Dist. Burhanpur (MP). .. Respondent

…
Shri. Girish V. Wani, Advocate for Appellants.
Shri. Anand I. Deshmukh, Advocate for sole Respondent.
…

CORAM : A. M. DHAVALE, J.

DATED : 7th AUGUST, 2018.

JUDGMENT :-

This is an appeal filed by wife challenging the Judgment and

Order dated 16th June, 2017, passed by the District Judge -5, Jalgaon,

in Miscellaneous Civil Application No. 85 of 2016, under Section 25 of

the Guardians and Wards Act, 1890, whereby the custody of a minor

girl aged 7 years is ordered to be handed over to the father.

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2. The grievance of the appellant as argued by learned Advocate

Shri. Girish V. Wani is that there was no proper service on the

appellant, still the trial Judge proceeded ex-parte against her.

3. I have perused the record and proceedings of the trial Court. As

per the record, notice dated 07-03-2017 was issued in the name of

appellant and her minor daughter. The bailiff visited her house on

18-03-2017. That time, her daughter and appellant were out of

station. It is alleged that the father of appellant No.1 has refused to

accept the notice and the noticee were not found. Hence, notice was

returned unserved. Earlier notice was also sent by Registered Post

Acknowledgment Deed (RPAD) and the envelope was returned

unserved with an endorsement that an intimation was given to the

noticee. But, she did not visit the post office for collecting envelope.

In the Judgment, learned trial Court has merely observed that notice

has remained unserved, though, notice was sent to opponent No.1

through RPAD, but it returned with an endorsement as unserved.

Therefore, the matter proceeded ex-parte against both the opponents.

4. The points for my determination and findings thereon are as

follows :-

Nos. Points Findings
1 Whether the learned Trial Judge
proceeded rightly ex-parte against the .. In the negative.
appellants ?
2 What order ? .. As per final order.

REASONS

5. The basic feature of Principles of Natural Justice is to give fair

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opportunity of hearing to the other side. The rule of fair trial

contemplates that nobody should be condemned unheard. It is no

doubt true that if some party is duly served in civil matter, but does not

appear, the Court can proceed ex-parte against such party, but, there

should be proper service of notice and Court should record the findings

of its satisfaction of proper service and still the party was not attending

the Court.

6. The impugned ex-parte judgment merely states that the notice

was issued to opponent No.1 through RPAD, but the same was

returned with an endorsement as unserved. It is needless to state that

this was not a case of proper service and the learned trial Judge has no

discretion to proceed ex-parte only on the basis of finding that the

notice was unserved.

7. Order V of the Code of Civil Procedure, 1908 (in short, CPC)

deals with issue and service of summons. It is well settled that

personal service on the party through bailiff and obtaining the

acknowledgment of party is the best service. But, if it could not be

served on the party, it could be served on any adult member of the

family. In the present case, the notice was sent initially by RPAD and

the envelope has returned with endorsement D/L 23-08-16 and 24-08-

16. An intimation was given on 25-08-2016 and as the addressee did

not visit the post office for collecting the registered post envelope, it

was returned as unserved. The envelope nowhere shows that it was

refused by the noticee i.e. Appellant herein. Thereafter, summons was

reissued through bailiff. That time the opponent was not there. The

papers disclose that the notice was issued for the first time on 13-06-

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2016 and the first notice issued returned unserved as the bailiff did not

get sufficient time for service.

8. This is a custody matter of a child before the Additional District

Judge-5, Aurangabad, who was expected to be sensitive to the rights of

the parties and was bound to verify the record before passing ex-parte

order. In the first place, there was no attempt to serve the notice

dated 14-08-2016 for want of time, still the Advocate for appellant filed

false application dated 20-08-2016 (Exhibit-7) that the opponent No.1

was avoiding to accept the notice. There was no material to accept the

statement, still the Court proceeded with the application. Pertinently,

the claim was filed at Jalgaon and the present appellant was residing

with her father at Bhadgaon, District Jalgaon. As per Order V of the

CPC, there is no provision of effecting service by mere RPAD. Still, the

application was casually allowed. When there was no service by RPAD,

still the ex-parte order was passed. The RPAD envelope does not bear

the endorsement as not claimed, still the order shows that there was

an endorsement as not claimed. Even if, it is assumed to be true, still

such endorsement does not mean that it is endorsement of refusal to

accept the service. Even if, there would have been refusal to accept

the service as per Order V, Rule 17 of the CPC, service by

pasting/affixing the copy of notice + plaint on the outer door or some

other conspicuous part of the house was essential alongwith the report

to that effect of the bailiff. No such efforts were made. Only one

attempt was made through bailiff when the opponent was not found in

house. This type of casual approach by a District Judge in the sensitive

matter of child custody for proceeding exparte without application of

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mind was not expected. As there was no service of notice, the

impugned ex-parte Order and Judgment is not tenable and deserves to

be set-aside.

9. At this stage, Shri. A. I. Deshmukh, learned Advocate for the

respondent submits that sufficient period has lapsed and there was

order in favour of the respondent. Considering the facts, the

respondent should get interim custody or atleast rights of visiting.

Since, I am setting aside the ex-parte order, the learned trial Judge will

have the jurisdiction to decide the prayer of interim relief like interim

custody or right of visitation. Without expressing any opinion on the

merits, it is clarify that the respondent is at liberty to make such

application if he so desires. It will be decided by the trial Judge on its

own merits according to provisions of law. With these observations,

the appeal deserves to be allowed. Hence, the order :-

ORDER

1. The appeal is allowed.

2. The ex-parte Judgment and Order passed by learned
District Judge – 5, Jalgaon, in Miscellaneous Civil
Application No. 85 of 2016 dated 16-06-2017, stands
set aside.

3. The matter is remanded to the concerned Judge for
reconsideration.

4. Learned Advocates for the parties agree to keep their
clients present before the learned Judge, Aurangabad,
on 28th August, 2018.

5. No order as to the costs.

6. Pending civil application, if any, stands disposed of.

[ A. M. DHAVALE ]
JUDGE
rrd.

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