Allahabad High Court
Bhupendra Singh vs Smt. Namrata Saraswat on 1 November, 2022
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- FIRST APPEAL FROM ORDER No. - 42 of 2012
Appellant :- Bhupendra Singh
Respondent :- Smt. Namrata Saraswat
Counsel for Appellant :- Ritvik Upadhya
Counsel for Respondent :- Bablu Singh,Santosh Yadav
Hon'ble Ajay Bhanot,J.
This first appeal from order arises from the order dated 19.10.2011 passed by the learned first appellate court declining the application made by the appellant under Order 41 Rule 21 CPC for rehearing of the appeal as an exparte decree was made against the appellant.
On behalf of appellant it is contended that the learned appellate court returned a perverse finding on the service of notice. The appellant had shifted his residence to Pilibhit on the relevant dates. He was not aware of the proceedings. He promptly filed an application for rehearing. His conduct was bonafide.
The contention on behalf of respondent is that the service on the appellant was complete. He was avoiding court proceedings to frustrate the right of appeal of the appellant.
Heard learned counsel for the parties.
The learned first appellate court has noticed the postal endorsement to the effect that the appellant could not be served as the name of his father was not correctly depicted. The learned appellate court disbelieved the recital in the postal notification. The appellant was an influential person who had engineered the aforesaid report. On this footing the learned court found that the service of notice was complete.
I am afraid that the first appellate court misdirected itself in fact and law. The recitals in the postal report as extracted in the impugned judgment are to the effect that the name of the appellant's father was incorrectly shown. There is no recital of service upon the appellant in the said report. The presumption of service of notice cannot be drawn in these facts. The learned appellate court was under an obligation of law to ask for a fresh service report from the postal authorities or to issue fresh notices. Admittedly the appellant had not been served notice by the postal authorities. The endeavour of the court in these facts should be to ensure that all modes of service are exhausted for noticing the party. Instead the learned appellant court illegally made a finding of sufficiency of service on the foot of an unreliable postal report. The opinion of the learned appellate court that the appellant had influenced the postal report is not supported by the report. The said findings are perverse and are liable to be set aside.
It is the consistent case of the appellant that his conduct was bonafide. Furthermore the appellant has specifically taken a plea that notices were not served as he has shifted his residence to Pilibhit during the relevant point in time.
In the wake of preceding discussion this Court finds that service of notice upon the appellant was not complete. The appellant has shown sufficient cause for his failure to appear before the first appellate court. The appellant is desirous to prosecute his appeal with diligence.
The order dated 19.10.2011 is liable to be set aside and is set aside.
The matter is remitted to the first appellate court with the following directions. At this stage learned counsel for both the parties undertake that both the parties will cooperate in the proceedings before the appellate court and will not seek any unnecessary adjournment. The learned appellate court shall decide the appeal within a period of six months from the date of receipt of the order.
It is clarified that this Court has not made any observation on the merits of the case.
The appeal is allowed.
Order Date :- 1.11.2022
Manish Tripathi
