Valiala Sandhya , Lavanya v. Vallala Srinivas

HON'BLE SRI JUSTICE T. SUNIL CHOWDARY TRANSFER C.M.P.No.438 of 2015 ORDER:

This petition is filed under Section 24 C.P.C., to withdraw H.M.O.P.No.86 of 2015 from the file of the Senior Civil Judge Court, at Siddipet, Medak District, and transfer the same to the Senior Civil Judge Court, at Sircilla, Karimnagar District.

2. As directed by this Court 31.08.2015 the petitioner has sent notice to the respondent and the same was returned with an endorsement 'no such person is available. For better clarification, the address furnished by the respondent in H.M.O.P.86 of 2015 filed by him on the file of Senior Civil Judge Court, at Siddipet, and the address to which the petitioner sent notice are furnished in the following table:

Address mentioned by the respondent in his O.P.

Address to which the petitioner sent notice by post Vallala Srinivas, S/o. Bhagwan, age:28 years, Occupation: Private employee, R/o.Dr.No.12-1-33, Ganeshnagar, Siddipet Town and Mandal of Medak District.

Vallala Srinivas, S/o. Bhagavan, Dr.No.12-1-33, Ganesh Nagar, Post Siddipet (Mandal) District: Medak, T.S.

Pin: 502 103.

The crucial question that falls for consideration is 'whether return of the postal cover with above referred endorsement would amounts to service of notice or not. A perusal of the record clinchingly establishes that the petitioner sent the notice to the correct address of the respondent, as mentioned in H.M.O.P. No.86 of 2015 filed by him against the petitioner herein.

3. At this juncture, learned counsel for the petitioner has drawn my attention to the decision in AJEET SEEDS LTD. v. K.GOPALA KRISHNAIAH at Paras-9 and 10, it is held as follows:

9. ................ This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop

closed' or 'addressee not in station', due service has to be presumed. (Vide Jagdish Singh v. Natthu Singh, State of M.P. v. Hiralal and V. Raja Kumari v. P. Subbarama Naidu.) It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved."

10. It is thus clear that Section 114 of the Evidence Act enables the Court to presume that in the common course of natural events, the communication would have been delivered at the address of the addressee. Section 27 of the GC Act gives rise to a presumption that service of notice has been affected when it is sent to the correct address by registered post. It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business."

4. As per the principle enunciated in the above decisions, when a notice has been sent to the correct address of the party and the same has been returned as 'no such person is available', it amounts to service of notice. The facts of the case on hand are almost identical to the facts of the case cited supra.

5. Having regard to the facts and circumstances of the case and also the principle enunciated in the case cited supra, I am of the considered view that the notice was properly served on the respondent. Since the respondent did not make appearance, after duly served with notice in this petition, the matter can be decided on merits in the absence of the respondent. Heard the learned counsel for the petitioner and perused the material available on record.

6. The marriage of the petitioner was performed with the respondent on 21.03.2011 in Bhiwandi of Maharashtra state, as per Hindu rites and caste customs. Immediately after the marriage, the petitioner joined the respondent to lead marital life. Out of lawful wedlock, the petitioner and respondent were blessed with one daughter. The respondent and others are facing trial in C.C.No.182 of 2015 on the file of the Judicial First Class Magistrate Court, at Sircilla, Karimnagar District, for the offences punishable under Sections 498-A IPC and 3 and 4 of the Dowry Prohibition Act. The

respondent filed H.M.O.P.No.86 of 2015 on the file of Senior Civil Judge Court, at Siddipet, for dissolution of marriage between him and the petitioner.

7. The petitioner has been residing at her parents house in Sircilla due to misunderstandings between her and the respondent. The petitioner may face some difficulty to travel from Sircilla to Siddipet along with her daughter in order to prosecute H.M.O.P.No.86 of 2015. Even as per the averments made in the petition, the petitioner is a resident of Sircilla. Invariably, the respondent has to attend the Court of Judicial Magistrate of First Class Court, at Sircilla in view of pendency of C.C.No.182 of 2015. While deciding the petitions of this nature, the Court has to take into consideration the inconvenience likely to be caused to the parties to the proceedings, more particularly, the wife and children.

8. As per the principle enunciated in Sumita Singh v. Kumar Sanjay, Rachna Kanodia v. Anuk Kanodia and V.Sailaja v V.Koteswara Rao the paramount consideration, in transfer of matrimonial cases, is the convenience of the wife.

9. Having regard to the facts and circumstances of the case and also the principle enunciated in the cases cited supra, I am of the considered view that it is a fit case to allow the petition.

10. Accordingly, the Transfer Civil Miscellaneous Petition is allowed. H.M.O.P.No.86 of 2015 is withdrawn from the file of the Senior Civil Judge Court, Siddipet, Medak District, and transferred to the file of Senior Civil Judge Court, at Sircilla, Karimnagar District, for disposal in accordance with law. As a sequel, miscellaneous petitions, if any, pending in this transfer petition shall stand closed. _____________________ T.SUNIL CHOWDARY, J 29.09.2015.

Rns