Allahabad High Court
Raj Kumar vs Smt. Gayatri Devi And 7 Others on 8 July, 2019
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- MATTERS UNDER ARTICLE 227 No. - 4808 of 2019
Petitioner :- Raj Kumar
Respondent :- Smt. Gayatri Devi And 7 Others
Counsel for Petitioner :- Bansh Narain Pathak
Counsel for Respondent :- Abhishek Tripathi
Hon'ble Manoj Kumar Gupta,J.
The instant petition under Article 227 of the Constitution has been filed challenging the order dated 28.2.2019 passed in Misc. Case No.90 of 2016 by Additional District Judge, Court No.12, Varanasi rejecting application 8-Ga seeking condonation of delay in filing revision against order dated 23.2.2011 as well as the order dated 23.2.2011 itself.
The facts in brief necessary for disposal of the instant petition are as follows:-
Original Suit No.493 of 1994 was filed by respondent No.1 for specific performance of an agreement to sell. It was decreed exparte on 25.7.1996. The petitioner and other defendants in the suit applied for setting aside the exparte decree in the year 2002 on the ground that they had no knowledge of the suit and that they were not served with any notice. Alongwith application under Order 9 Rule 13 CPC, they also filed application under Section 5 of Limitation Act for condoning delay in filing the application. The application under Section 5 of the Limitation Act was rejected by order dated 23.2.2011. The petitioner and other defendants did not challenge said order and permitted it to attain finality. It seems that thereafter matter was again placed before the trial court and by order dated 18.1.2012, the trial court proceeded to reject the application under Order 9 Rule 13 CPC on merits holding that service of summons in the suit was sufficient upon the petitioner and other defendants by refusal as well as by publication. This was notwithstanding the fact that the trial court could have rejected the application under Order 9 Rule 13 CPC on the sole ground that application under Section 5 of the Limitation Act stood dismissed. The petitioner and other defendants challenged the order passed by the trial court rejecting application under Order 9 Rule 13 CPC dated 18.1.2012 by filing an appeal. The appeal was dismissed by order dated 7.3.2013. Against these orders, the petitioner and other defendants filed Writ-C No.22084 of 2013, which was dismissed by this Court on 5.1.2016 by observing thus :-
"The averments made in the petition reveal that Original Suit No. 493 of 1994 for specific performance of an agreement to sell was decreed ex-parte on 25.7.1996. The petitioners some time in the year 2002 applied for setting aside the ex-parte decree on the ground that they had no knowledge of the suit and that they were not served with any notice. Subsequently, petitioners moved application under Section 5 of the Limitation Act for condoning the delay in filing the application under Order 9 Rule 13 CPC with affidavit 32 Ga. The aforesaid application was rejected vide order dated 23.2.2011. The said order became final and conclusive as it was not challenged any further.
In view of the above order the natural consequence was to reject the application under Order 9 Rule 13 CPC as barred by time. However, the court of first instance vide order dated 18.1.2012 has rejected the same even on merits as the service of summons of the suit was held to be sufficient upon the petitioners by refusal as well as by publication.
Learned counsel for the petitioners has not pointed to any material which may show that the notice of the suit was not refused by the petitioners and the endorsement of refusal by the post office is manipulative in nature.
In view of the aforesaid facts and circumstances, the application of the petitioners under Order 9 Rule 13 CPC was liable to be dismissed both on the ground of limitation as well as on merits and as such the Courts have not committed any error in passing the impugned orders.
The writ petition is devoid of merit and is dismissed"
The petitioner taking clue from the observation made by this Court in its order dated 5.1.2016 that order dated 23.1.2011 had attained finality as it was not challenged, proceeded to file a revision against the said order alongwith an application seeking condonation of delay. The ground for seeking condonation of delay was that the counsel in High Court advised him to file a revision after dismissal of the writ petition on 5.1.2016. By impugned order, the revisional court has dismissed the application under Section 5 of the Limitation Act, as it did not find any sufficient ground to condone the delay.
Learned counsel for the petitioner submitted that the application seeking condonation of delay, has been rejected without considering the ground taken by the petitioner in his application under Section 5 of the Limitation Act.
Learned counsel for respondent No.1, on the other hand, submitted that the revision itself was not maintainable in view of the fact that application under Order 9 Rule 13 CPC came to be decided finally on merits by order dated 18.1.2012 and which was affirmed in appeal on 7.3.2013 and ultimately by Writ- Court on 5.1.2016.
This Court finds sufficient force in the submission of learned counsel for respondent No.1. Once the order passed on application under Order 9 Rule 13 CPC on merits was affirmed by this Court by judgement and order dated 5.1.2016 in Writ-C No.22084 of 2013, holding that there is nothing on record to indicate that service was effected by manipulation, the issue relating to condonation of delay in filing the said application looses its significance. Consequently, even the revision filed by the petitioner against order dated 23.2.2011 was not maintainable, after the order passed on application under Order 9 Rule 13 CPC on merits was upheld by this Court.
Accordingly, the petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.)
Order Date :- 8.7.2019
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