Mohammad Khan vs Ajijul Hasan
2021 Latest Caselaw 3714 Chatt

                                           1

                                                                               NAFR
                  HIGH COURT OF CHHATTISGARH, BILASPUR
                                 W.P (227) No.452 of 2016
     1. Mohammad Khan S/o Marhum Ahmad Khan, Aged About 40 Years
        Occupation Contractor, R/o Jawahar Nagar, Ful Chowk, Raipur, Tahsil And
        District Raipur, Chhattisgarh
     2. Smt. Nasrin Khan, W/o Abdul Jabbar Khan, Aged About 44 Years R/o Rajam
        Talab Arjun Chowk, Raipur, District Raipur, Chhattisgarh
     3. Smt. Shaahjanda Khan, W/o Anwar Khan, Aged About 39 Years R/o Purani
        Basti, Raipur, District Raipur, Chhattisgarh
     4. Smt. Sultana Khan, W/o Mohammad Sharif Khan, Aged About 26 Years R/o
        Near Bus Stand, Jagdalpur, Distt. Bastar Chhattisgarh ----Petitioners
                                        Versus

     1. Ajijul Hasan S/o Late Rasidul Hasan, Aged About 53 Years R/o Mominpara,
        Tatyapara Ward, Near Masjid, Raipur, Tahsil And District Raipur, Chhattisgarh,
        Chhattisgarh

     2. Shahidul Hasan, S/o Late Rasidul Hasan, Aged About 44 Years R/o
        Mominpara Tatyapara Ward, Near Masjid, Raipur, Tahsil And District Raipur,
        Chhattisgarh, District : Raipur, Chhattisgarh
     3. Vajibul Hasan, S/o Late Rasidul Hasasn, Aged About 40 Years R/o Mominpara
        Tatyapara Ward, Near Masjid, Raipur, Tahsil And District Raipur, Chhattisgarh,
        District : Raipur, Chhattisgarh
     4. Shamimul Hasan, S/o Late Hasidul Hasan, Aged About 36 Years R/o
        Mominpara Tatyapara Ward, Near Masjid, Raipur, Tahsil And District Raipur,
        Chhattisgarh, District : Raipur, Chhattisgarh
     5. Vasimul Hasan, S/o Late Rasidul Hasan, Aged About 33 Years R/o
        Mominpara Tatyapara Ward, Near Masjid, Raipur, Tahsil And District Raipur,
        Chhattisgarh, District : Raipur, Chhattisgarh
     6. Hasida Bano, D/o Gulam Ali, Aged About 54 Years R/o Mominpara Tatyapara
        Ward, Near Masjid, Raipur, Tahsil And District Raipur, Chhattisgarh

                                                                   -----Respondents

For Petitioner:                          Shri Ganesh Burman, Advocate.
For Respondent No.6:                     Shri Raghavendra Pradhan, Advocate


                Single Bench:Hon'ble Shri Deepak Kumar Tiwari J
                               Order On Board
15.12.2021

1. This is a Petition challenging the order dated 04.05.2016 passed by the 5 th

Additional District Judge, Raipur (CG) in Misc. Civil Appeal No.24/2013 whereby,

the ex parte decree passed against the Respondents/Defendants has been set

aside.

2. Brief facts of the case are that the Plaintiffs/Petitioners had filed a suit for

possession of vacant land and also for damages in which the trial Court issued

notice to the Respondents but the nephew of the Respondents, who were

residing jointly, had refused to accept notice and therefore, the trial Court had

proceeded ex parte against them.

3. After conclusion of the trial, an ex parte decree judgment and decree has

been passed against the Respondents on 09.03.2004. The Respondents had

moved an application under Order 9 Rule 13 CPC r/w Section 115 CPC along

with an application under Section 5 of Limitation Act after lapse of more than four

years to set aside the ex parte decree passed in Civil Suit No.14-A/2002 (Ahmad

Khan vs. Ajijul Hasan & Ors).

4. The trial Court has dismissed the application vide order dated 29.08.2013.

The said order has been challenged in the Appeal in which, the impugned order

has been passed.

5. Learned Counsel for the Petitioner submits that the lower appellate Court

has committed gross illegality in allowing the application under Order 9 Rule 13

CPC filed by the Respondents/Defendants. In order to play dilatory tactics, the

Respondents/Defendants have refused to accept notices and have not shown

any proper reason to accept the application under Order 9 Rule 13 CPC or any

grounds for condoning the delay in filing the aforesaid application and therefore,

the Petition may be allowed and the impugned order be set aside.

6. The appellate Court has minutely examined the service against the

Respondents/Defendants and it was held that no proper service of notice was

made against the Respondents/Defendants. For adjudication of any case, proper

notice is a basic requirement and Audi alteram partem is the rule for natural

justice. Unless notice is not properly served, this cannot be complied with. So,

the legislature under Order 5 Rule 17 CPC further safeguards that when the

Defendant or his agent or such other person as aforesaid refuses to sign the

acknowledgment, the serving officer shall affix a copy of the summons on the

outer door or some other conspicious part of the house in which the defendant

ordinarily resides. In this case, the process server has not complied with the said

rule. Even the service was made to the adult members of the Defendant family

and there was no of the person to whom the service has been effected and there

was also no identification of any person that the said person to whom service was

made is the member of the family of the Defendant.

7. In view of the foregoing reasons, this Court is of the opinion that the ex

parte decree has properly been set aside and the same does not call for any

interference in the Writ Petition. The said order is affirmed. Accordingly, the

Petition is dismissed.

Sd/-

(Deepak Kumar Tiwari) JUDGE Priya