Uttarakhand High Court
SA/81/2024 on 16 February, 2026
Office Notes,
reports, orders
or proceedings
SL. or directions
Date COURT'S OR JUDGES'S ORDERS
No and
Registrar's
order with
Signatures
SA No.81 of 2024
Hon'ble Siddhartha Sah, J.
Heard Mr. Mahesh Bhatt, learned counsel for the appellant and Mr. Vaibhav Mahtolia, learned counsel for the respondent.
2. This is the time barred second appeal, since there is a delay of 210 days in filing the instant second appeal.
3. The reason for the delay has been duly mentioned in the affidavit in support of the delay condonation application. In para 7 of the affidavit of the appellant, it is stated that he is posted in Assam Rifles and has to remain posted at borders. The appellant never came to know about pendency of the suit filed against him by the plaintiff/respondent herein. Not only this, the appellant also was ignorant of any appeal so preferred by the plaintiff/respondent before the court of learned 1st Additional District Judge, Nainital. The appellant for the first time came to know about the pendency of the Execution Case, when he received the copy of the summons at his WhatsApp by his superior authority on 20.05.2024. Thereafter, the appellant appeared before the Executing Court. The appellant also made inquiry in this regard and came to know about the judgment and decree passed by the 1st Additional District Judge, Haldwani. Thereafter, the appellant contacted his lawyer, who advised him to collect the necessary documents for filing the present second appeal. Thereafter, the appellant collected the documents and got prepared the instant second appeal and now without any further delay the instant second appeal is being filed.
4. Per contra, learned counsel for the respondent contends with the reference to his objections and contends that the delay has not been properly explained, therefore, the delay condonation application is liable to be rejected. In the objections, it has been contended that the learned Second Additional Civil Judge (Junior Division), Haldwani, District Nainital has issued the summon against the appellant through registered post in his accurate and correct residential address as mentioned in the above second appeal. The registered post came back with the remark dated 11.01.2022 that "the appellant's house is locked and when called him to acknowledge about summon the appellant refuses to take it".
5. It is further contended that the learned First Additional District Judge, Haldwani, District Nainital issued summon against the appellant/defendant in his accurate and correct residential address and to the Commanding officer of Unit. The summon came back from his residential address with the remark dated 26.07.2023 that "recipient (appellant) was not available in the house, after asking others appellant was told to be out of the house, even after giving information to the recipient did not claim, return in time to the sender." Thus, counsel for the respondent contends that the appellant has not shown appropriate and sufficient cause for not appearing before the learned courts i.e. learned Second Additional Civil Judge (Junior Division), Haldwani and learned First Additional District Judge, Haldwani, District Nainital.
6. Learned counsel for the appellant has drawn the attention of the Court to provisions of Order 5 Rule 28 & 29 of CPC. Making reference to Rule 28 and 29, the learned counsel for the appellant states that since the appellant is a soldier, the notice/summons ought to have been sent for service to his Commanding officer. Summons that have been referred by the learned counsel for the respondent was sent to the appellant in his personal name and his residential address, whereas the appellant was posted outside in the Army.
7. Perusal of the Order 5 with the Rule 28 and 29 CPC would reveal that the provisions of Rule 28 provides that where the defendant is a soldier, sailor or airman, the Court shall send the summons for service to his commanding officer together with a copy to be retained by the defendant and provisions of Rule 29 provides that (1) where a summons is delivered or sent to any person for service under rule 24, rule 27 or rule 28, such person shall be bound to serve it if possible, and to return it under his signature, with the written acknowledgment of the defendant, and such signature shall be deemed to be evidence of service. (2) Where from any cause service is impossible, the summons shall be returned to the Court with a full statement of such cause and of the steps taken to procure service, and such statement shall be deemed to be evidence of non-service.
8. Since the notice was sent at the residential address of the appellant at the trial court as well as at the appellate stage, there was no compliance of provisions of Order 5 Rule 28 & 29 of CPC. So far as, the summons that were sent through post on 22.05.2023 and shown to be received on 25.05.2023, the learned counsel for the appellant makes a submission that the information of the said summons was not provided to the appellant by the Commanding officer, therefore, the appellant was oblivious of the pendency of the appeal and could not participate in the appellate stage, therefore, the delay deserves to be condoned.
9. Considering the entire facts and circumstances of the case and particularly that the appellant is in Army and posted outside the residence and at the relevant time, when notices were issued to him and he did not come to know about the said pendency of the suit as well as appeal, therefore, he could not participate and only when he came to know about the pendency of the execution proceedings, he immediately took steps for preferring the second appeal.
10. The reasons as assigned for the delay are found to be sufficient. Hence, the Delay Condonation Application (IA No.01 of 2024) is allowed. Delay in preferring the appeal is hereby condoned.
11. Learned counsel for the respondent has drawn the attention of the Court to order dated 01.08.2025, wherein the learned counsel for the appellant had sought a week's time to argue on the question as to whether any interim order can be granted in second appeal prior to its admission, more particularly, in view of the judgment passed by Hon'ble Supreme Court in 'U. Sudheera & others vs. C. Yashodha & others', (2025) 4 SCC 215. Since the second appeal has not been admitted, therefore, there was no question of granting any interim order.
12. In such view of the matter, the interim order dated 23.04.2025 is hereby vacated.
13. Learned counsel for the appellant seeks a week's time to address the appeal on its admission.
14. Time so prayed for is granted.
15. List this matter on 26.02.2026.
(Siddhartha Sah, J.) 16.02.2026 Akash