Rajesh Kumar & 2 Others vs Nirmala Devi & Another
2017 Latest Caselaw 424 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 34
 

 
Case :- FIRST APPEAL FROM ORDER No. - 1275 of 2017
 

 
Appellant :- Rajesh Kumar & 2 Others
 
Respondent :- Nirmala Devi & Another
 
Counsel for Appellant :- Vipin Kumar Saxena
 
Counsel for Respondent :- Pushpendra Singh Yadav
 

 
Hon'ble Ashok Kumar,J.

Heard Sri Vipin Kumar Saxena, learned counsel for the appellants and Sri J.N. Singh, Advocate assisted by Sri Pushpendra Singh Yadav, learned counsel for the respondents at length. Learned counsel for the respective parties are agreed that the present appeal may be heard finally and disposed of.

Brief facts of the case are that by the impugned order dated 8.2.2017 passed by the Additional District and Sessions Judge, Court No.5, District Etah in Misc. Case No. 4 of 2014, the learned Judge has rejected the application 3-C2 filed by the defendants-appellants under Order 41 Rule 21 C.P.C., by which the defendants-appellants prayed for recalling the ex parte judgment dated 15.3.2014 passed in Civil Appeal No. 42 of 2013 and further for re-hearing of the appeal on merits.

The plaintiffs-respondents filed the Original Suit No. 237 of 2008 by which they have sought the permanent injunction restraining the defendants-appellants from interfering with their possession over Gata No. 37/0-279 hec., 38/0-360 hec. and taking the possession by force over the aforesaid plot.

The aforesaid Original Suit No. 237 of 2008 has been filed by the plaintiffs-respondents by which they stated that father of the defendants-appellants, Sri Mohan Lal had executed the sale deeds on 29.5.2003 and 1.4.2004 in respect of Gata No. 37/0-279, 38/0-360 hec. and their names have also mutated even then the defendants-appellants are interfering with the possession of the plaintiffs-respondents. It is further stated that the plaintiff-respondent no.2 is growing the crops in the said plots and therefore, the injunction of the defendants-appellants have become dishonest and the defendants-appellants on 29.5.2003 along with certain other persons came on the plots and started interfering with their possession and in that situation the aforesaid suit has been filed.

The defendants-appellants contested the suit as they filed the written statement in which they stated that the sale deed in respect of the aforesaid two plots have been forgedly manipulated by the plaintiffs respondents. It is further stated that the father of the defendants appellants Sri Mohan Lal expired on 21.2.2005 when the plaintiffs respondents tried to take possession on the said plots and the defendants appellants filed the Original Suit No. 137 of 2008 and 138 of 2008 for the cancellation of the alleged sale deeds. It is further stated in the written statement that the mutation order in favour of the plaintiffs respondents has been cancelled by the Tehsildar vide its order dated 7.5.2010. The defendants-appellants had also initiated proceeding under Section 149 C.P.C. in which the report has been submitted and they were found in possession of the plot in question. The defendants-appellants therefore, prayed that the suit of the plaintiffs-respondents is not maintainable and accordingly, is liable to be rejected.

The Additional Civil Judge (Jr. Division) Court No.25, Etah vide its order dated 29.5.2013 has dismissed the aforesaid suit and has held that the plaintiffs have failed to prove their possession on the land in question and that the Suit Nos. 137 and 138 of 2013 filed by the defendants-appellants, by which they sought for cancellation of the sale deed, are pending and the mutation order in favour of the plaintiffs have been cancelled by the Tehsildar vide its order dated 7.5.2010.

Aggrieved by the judgment and order dated 29.5.2013 passed by Additional Civil Judge (Jr. Division) Court No.25, Etah the plaintiffs-respondents filed Appeal No. 42 of 2013 which has been transferred to the Court of Additional District Judge, Court No.5, Etah. In the said appeal filed by the plaintiffs-respondents being Civil Appeal No. 42 of 2013 the Court of Additional District Judge vide its orders dated 11.7.2013, 26.7.2013 and 27.8.2013 issued the notices to the defendants by which it has been directed that the plaintiffs may do the pairvi by both ways. The orders aforesaid dated 11.7.2013, 26.7.2013 and 27.8.2013 passed by the Additional District Judge, Court No.5, Etah are quoted hereinbelow :-

"11-07-03

vkt ;g flfoy vihy vihykFkhZ Jherh fueZyk nsoh }kjk vf/koDrk Jh f'ko'kadj vxzoky ,MoksdsV izkIr gksdj is'k dh xbZA

lnj eqalfje vk[;k voyksfdr gqbZA

vkns'k gqvk fd&flfoy vihy vaxhd`r fd;s tkus ;ksX; ikdj iathd`r fd;s tkus dk vkns'k fd;k tkrk gSA izfri{kh dks uksfVl tkjh gks iSjoh nksuks izdkj ls vUnj lkr fnu dh tk;sA voj U;k;ky; ls lEcfU/kr vfHkys[k ryc fd;s tk;sA okLrs cgl fnukad 26-07-2013 dks is'k gksA

5lh7

bl vk'k; dk fn;k x;k gS vihy ds vyEcu dky rd foi{khx.k dks fookfnr lEifRr ij Loa; vius ukSdjksa ,tsUVksa ;k vU; fdlh ds ek/;e ls vihykFkhZx.k dks osn[ky djus ;k mlds 'kkfUrfiz; dCtk o n[ky eas gLr{ksi djus ls ckt jgsaA ,d i{kh; fu"ks/kkKk tkjh fd;s tkjh fd;s tkus dk dksbZ vkSfpR; izrhr ugh gksrk gSA mijksDr fu;r fnukad ij bl izkFkZuk i= dh lquokbZ gksxhA bl izkFkZuk i= ij vkifRr o fuLrkj.k gsrq foi{khx.k dks uksfVl tkjh gksA

g0v0

tuin U;k;k/kh'k] ,Vk

26-07-13

is'k gqbZ] iqdkj x;kA vihykFkhZ ds fy;s mifLFkr vk;sA jsLiks0 ij rkehyk ugh gSA ih vks vkt iz'kklfud dk;Z ls ckgj x;s gSA vr% oknh iqu% 7 fnu esa nksuksa rjg ls iSjoh djsa rnksijkUr uksfVl fn0 27-08-13 ds fy;s tkjh gksA ewy vfHkys[k ryc gksA

g0v0

27-08-13

i=koyh izLrqr gqbZA e; vf/koDrk gkftj gSA i=koyh iSjoh gsrq fn0 15-10-13 dks is'k gksA iSjoh vUnj lIrkg djsaA i=koyh ewy ryc gksA "

As directed and indicated in the aforesaid three orders dated 11.7.2013, 26.7.2013 and 27.8.2013 it was incumbent upon the plaintiffs-respondents to do pairvi by both means, as directed by the Court of Additional District Judge. The direction of the Additional District Judge was clear that the pairvi has to be done through process of the Court as well as by registered post, but the plaintiffs-respondents did not take steps to serve through process of the Court.

The fact remains that the plaintiffs only complied with the order by taking steps by registered letter which were placed before the Court of Additional District Judge in which an endorsement was made by the postman that the defendants-appellants refused to take the registry, hence returned.

The submission of the learned counsel for the appellants is that the aforesaid service by refusal was collusive as at no point of time the service has been affected nor the postman came to serve the notice at the houses of the defendants-appellants. The Court of the lower appellate authority on the basis of the aforesaid endorsement of the postman dated 25.10.2013 has treated the service upon the defendants-appellants as sufficient service of the notice. An application being 11-C2 has been moved by the plaintiffs-respondents along with the affidavit of one Brijraj Singh by which the temporary injunction has been sought and to serve the copy of the aforesaid application and affidavit upon a counsel said to be a junior assisting counsel of the Advocate Sri Anil Sharma.

Learned counsel for the appellants-defendants has submitted that there was no service of appeal upon the defendants-appellants as such they were not aware about the aforesaid appeal proceedings. It has been stated that the defendants-appellants had never given vakalatnama to any junior or assisting counsel of Sri Anil Sharma, Advocate or to even any other counsel. It is therefore submitted that in any case, once no authorisation has been given by the defendants-appellants to represent in the proceedings on their behalf the application being 11-C2 is not at all entertainable or acceptable.

The lower appellate Court further vide order dated 18.11.2013, has held that the counsels are watching the proceedings and they were granted time to file the objections. Learned counsel for the defendants-appellants has submitted that they were, in fact, not aware about the proceeding related to Civil Appeal No. 42 of 2013, therefore there was no question of appearance and to pursue their stand in the aforesaid proceedings before the lower appellate Court. The lower appellate Court has allowed the appeal ex parte by passing the judgment dated 15.3.2014 by which the appeal has been decided ex parte and decreed the suit of the plaintiffs-respondents for permanent injunction.

The learned counsel for the defendants-appellants has submitted that on 29.7.2014 the plaintiffs-respondents along with their associates came to the land in dispute and they started interfering with the possession of the defendants-appellants by stating and saying that they have won the case/appeal.

The submission of the learned counsel for the appellant is that for the first time they came to know about the aforesaid proceedings allegedly carried out in Civil Appeal No. 42 of 2013, when the plaintiffs respondents along with their associates tried to interfere in the possession of the defendants-appellants on the plots No. 57-58. The learned counsel for the appellants submitted that on very next date i.e. 30.7.2014 the defendants-appellants approached the Court and met their counsel who has inspected the file and record and informed that the appeal has been ex parte allowed. It is only on 30.7.2014 the defendants appellants came to know about the order and judgment dated 15.3.2014 passed by the lower appellate Court in Civil Appeal No. 42 of 2013 and thereafter on 4.8.2014 an application supported by an affidavit has been drafted under order 42 Rule 21 C.P.C. read with Section 151 which has been registered as Misc. Application No. 4 of 2014 by which the defendants-appellants requested for recalling of the order, which has been passed ex parte dated 15.3.2014. The defendants-appellants have requested in their applications supported by an affidavit that the appeal be re-heard on merits as no opportunity has been given to them nor they have ever received any notice or summon. The plaintiffs-respondents have filed the objections and oppose the application filed by the defendants-appellants.

The lower appellate Court vide judgment order dated 8.2.2017 rejected the misc. application filed by the defendants-appellants stating that from perusal of the order-sheet of Civil Appeal No. 42 of 2013 it is clear that defendants-appellants did not deliberately put in their appearance in the aforesaid case and it is not clear that the defendants-appellants have put their appearance on what date. On the basis of the aforesaid reasons, the lower appellate Court has recorded its finding that the restoration application cannot be allowed as no sufficient ground are mentioned in the application supported by the affidavit.

At the end learned counsel for the appellants has submitted that the impugned judgment and order dated 8.2.2002 passed by the Additional District and Sessions Judge in Misc. Appeal No. 4 of 2014 is totally illegal, incorrect, wrong and therefore, is liable to be set aside.

Learned counsel for the respondents, on the other hand, has submitted that the order impugned is fully justified and the lower appellate Court has considered all the aspects of the matter and then only it has recorded that the service has been affected through the postman who has endorsed that the defendants-appellants refused to take registry, therefore the same are returned. Further learned counsel for the plaintiffs-respondents have submitted that once the service is affected, it is presumed that the defendants-appellants are aware and in fact aware about the proceedings and they were watching the proceeding from outside the Court and when the appeal filed by the plaintiffs-respondents has been allowed then the objection has been raised about the non-service of the summons, which cannot at all be relied on.

I have heard learned counsel for the parties at great length and have perused the impugned judgment and complete order-sheet, which has been enclosed along with the memo of appeal.

The learned lower appellate Court while passing the impugned order dated 8.2.2017 has itself recorded the finding that from the order-sheet, which has been maintained, it is not cleared as to when the defendants-appellants put their appearance in the said appeal proceedings. It has further been mentioned/noted by the appellate Court that the defendants-appellants are deliberately not participated in the proceedings and since there is no prayer to set aside the order, which has been passed ex-parte dated 15.3.2014, there is no occasion to restore proceeding and rehear the appeal.

The lower appellate Court has completely ignored the relevant fact that the service affected upon the defendants-appellants, when ordered to be by both ways, has been made by the plaintiffs-respondents or not, admittedly only one mode has been followed and the report of the postman about the service upon the defendants-appellant and endorsement appears to be collusive. Nothing has been considered by the lower appellate Court. No finding has been recorded by the lower appellate Court about the statement and submission of the defendants-appellants that no postman came to houses of the appellants nor the appellants ever refused to receive the post. There is no whisper in the impugned order as to whether any witness was named before whom the service was refused. Nothing has been mentioned about the service of the application 11-C2 for temporary injunction upon the junior of Sri Anil Sharma, Advocate, it has been objected by the defendants-appellants. The service of an application ought to have have been affected upon the authorized Advocate and not upon any of the assisting counsel because in normal course of profession it is seen that one assisting counsel handling the brief of one senior counsel and suddenly changes the chamber of earlier counsel by joining the chamber of another senior counsel. In the present case, neither the name has been disclosed upon whom the application 11-C2 has been served nor the junior counsel has ever been examined or produced before the lower appellate Court, therefore, it is held that the alleged service upon the junior of senior counsel, who is not authorized to receive, cannot be held the service upon an authorized person. In normal course, the service of notice ought to have been or any other documents ought to have been served upon the authorized person namely, either the counsel representing the respective parties or upon a registered clerk of an Advocate or authorized Advocates regularly attending and appearing representing the cases on behalf of the senior counsel/counsels.

In view of the aforesaid, it is held that the service as indicated by the lower appellate Court, is not a sufficient service of the notice and further the plaintiffs-respondents failed to take the steps by complying the direction of the lower appellate Court to serve the notice by both ways and once that is so, the order, which has been passed ex parte in Civil Appeal No. 42 of 2013, is hereby set aside as also the impugned order dated 8.2.2017 passed in Misc. Appeal No. 4 of 2014.

The appeal is allowed. The lower appellate Court is directed to hear the Civil Appeal No. 42 of 2013 afresh after providing the opportunity of being heard to the appellants and decide the appeal on merits within a period of three months from the date of a certified copy of this order is filed before it. It is further made clear that no unnecessary adjournment should be granted to any of the parties.

Order Date :- 11.05.2017

S.S.