Indrasen And 2 Others vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 17826 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:46799
 
Court No. - 20
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2116 of 2023
 

 
Petitioner :- Indrasen And 2 Others
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Revenue Lko. And 2 Others
 
Counsel for Petitioner :- Surendra Kumar Yadav,Bhanu Pratap Singh
 
Counsel for Respondent :- C.S.C.,Anoop Kumar Srivastava
 

 
Hon'ble Manish Mathur,J.

1. Heard Mr. Surendra Kumar Yadav learned counsel for petitioner and Mr. Amit Kumar Srivastava learned counsel for opposite party No.2. Opposite party No.1 being merely proforma in nature, notices are dispensed with.

2. Petition under Article 227 of Constitution of India has been filed seeking quashing of the order dated 23rd February 2008 passed in regular suit No. 539 2001 whereby ex parte proceedings were directed to be continued against the petitioners who are defendants in the in the said proceedings. Also under challenge is the order dated 28th September 2021 whereby application under Order 9 Rule 7 of the code of civil procedure has been rejected. Order dated 15th February 2023 passed in civil appeal No. 29 of 2021 upholding the aforesaid two orders is also under challenge.

3. It has been submitted that the opposite party No.2 filed the aforesaid suit for permanent injunction in which initially notices were issued but the said suit was dismissed in default of appearance on 8th July 2003 and was restored on 23rd September 2005 whereafter fresh notices were issued to the petitioners/defendants but no service was ever effected upon them. It is submitted that since the petitioners/defendants were unaware of the aforesaid restoration and subsequent proceedings, they could not appear in the same leading to passing of the order dated 23rd February 2008 drawing ex parte proceedings against them. It is submitted that the petitioners thereafter obtained knowledge of the said order only in the year 2017 through rumours circulating in the village and filed application under Order 9 Rule 7 of the Code dated 18th December 2017 in which a prayer for condonation of delay was also made.

4. Learned counsel for petitioner submits that even as per the impugned orders, there is no finding that the petitioners No.1 and 3 were ever served personally and the only finding recorded is that service was effected upon the defendants through petitioner No.2. As such it is submitted that service upon the petitioners 1 and 3 was deemed sufficient without actual service having been effected upon them and as such an opportunity to lead evidence to the petitioners should not have been closed taking such a technical view of the matter.

5. Learned counsel has submitted that suit proceedings should be decided on the basis of evidence led by both parties and should be on merits instead of on the basis of ex parte proceedings and therefore a liberal view was required to be taken by the court concerned to allowing the application under Order 9 Rule 7 of the code particularly when a specific averment had been made that the plaint petitioners/ defendants were never served personally.

6. Learned counsel appearing for answering opposite party has refuted submissions advanced by learned counsel for petitioners with submission that a perusal of impugned orders will evidence that fresh notices were issued to the petitioners/defendants after restoration of suit and personal service was effected upon petitioner No.2 Dhan Pal on 27th October 2005 who also accepted notices on behalf of other petitioners/defendants. It is submitted that since specific finding has been recorded by the trial court regarding service upon petitioners, the same could have been rebutted by them by leading evidence, which was not done due to which adverse inference should be drawn against them. It is submitted that non appearance of the petitioners in suit proceedings was deliberate and therefore no indulgence is required to be granted. He has placed reliance on the judgments rendered in the cases of Basawaraj and another versus Special Land Acquisition Officer reported in (2013) 14 SCC 81 and Ajay Dabra versus Pyare Ram and others reported in 2023 AIR (SC) 698.

7. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it appears that vide order dated 23rd February 2008, it has been indicated that service upon the petitioners/defendants was found sufficient vide order dated 5th November 2007 and ex parte proceedings were drawn since the petitioners did not put in appearance despite service. The order dated 28 September 2021 also records that as per order sheet, personal service has been effected upon the petitioner No.2, Dhan Pal on 27 October 2005 who also accepted notices on behalf of other petitioners. The order also indicates that recall application instead of being filed within a period of 30 days has in fact been filed after 10 years of ex parte proceedings being directed. On this analogy, the application has been rejected and the said order has been upheld in appellate proceedings.

8. The order dated 28th September 2021 since it specifically records the fact that personal service was effected upon petitioner No.2 on 27th October 2005, was required to be rebutted by the petitioners not only in the memorandum of appeal but also by leading any evidence to rebut the same. Such a course of action having not been taken by the petitioners, an adverse inference is required to be drawn against them. In fact a perusal of memorandum of appeal does not indicate any rebuttal whatsoever of the said finding of fact recorded by the trial court and the entire application as well as present petition is founded only on the aspect that an opportunity of hearing is required to be given to the petitioners.

9. With regard to aforesaid proposition, Hon'ble Supreme Court in the case of Basawaraj versus Special Land Acquisition Officer (2013) 4 SCC 81 has clearly held that with regard to recall of orders directing ex parte proceedings, a liberal interpretation is required to be given so that a decision on merits is arrived at and the decree is not passed behind the back of any party to a dispute.

10. However at the same time a word of caution has also been observed by a Supreme Court to the effect that although applications seeking recall are required to be allowed liberally but not in cases where there is deliberate or intentional default on the part of the defendant in pursuing the matter even after notice. As such a liberal attitude is not required to be taken in case of deliberate for intentional negligence.

11. Upon applicability of aforesaid judgments in the present facts and circumstances of the case, it is evident that a specific finding has been recorded by the trial court that the petitioner No.2 was personally served with notices as far back as October, 2008 and he accepted the notices on behalf of his brothers who were arrayed as the other defendants in suit. It is evident that such a finding of fact has not been rebutted by the petitioners/defendants anywhere. In such circumstances, service of notice upon the defendants is clearly established due to which no exception can be taken to the orders impugned.

12. It is also noticeable that even if ex parte decree is issued in suit proceedings, the defendants would definitely have a right to appeal against the same in terms of section 96 of the code and therefore it cannot be said that they have been left remediless.

13. In view of aforesaid discussion, the petition being devoid of merits is dismissed. Parties to bear their own cost.

Order Date :- 18.7.2023

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