Mahesh Singh vs Vinod Kumar Joshi
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Uttarakhand High Court

Mahesh Singh vs Vinod Kumar Joshi on 2 January, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

     HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (M/S) No.3625 of 2023


Mahesh Singh                                 ........Petitioner

                           Versus

Vinod Kumar Joshi                          ........Respondent


Presence:-
     Mr. Naman Kamboj, learned counsel (appeared through V.C.)
     and Mr. Ankush Kumar Tyagi, learned counsel for the
     petitioner.

Hon'ble Pankaj Purohit, J. (Oral)

By means of this petition under Article 227 of the Constitution of India, petitioner has challenged the order dated 07.11.2023, passed by 1st Additional District Judge, Kashipur, District U.S. Nagar in Misc. Civil Appeal No.01 of 2023 and order dated 28.05.2022, passed by Civil Judge (Senior Division), Kashipur, District Udham Singh Nagar in Civil Misc. No.10 of 2018, whereby the application under Order 9 Rule 13 of CPC filed by the petitioner, was rejected and subsequently, affirmed by the appellate court vide its order dated 07.11.2023.

2. Heard learned counsel for the parties.

3. The facts of the case are that a Civil Suit No.77 of 2014 was filed by the respondent-plaintiff in the court of Civil Judge (Senior Division), Kashipur, U.S. Nagar, which was proceeded ex-parte and subsequently decreed by judgment and decree dated 04.08.2015. Petitioner-defendant has challenged the said ex-parte decree dated 04.08.2015 by filing an application under Order 9 Rule 13 of CPC stating therein that the

petitioner-defendant has no knowledge of the aforesaid suit and the summons were not properly served upon him. Thereafter, petitioner filed the application under Order 9 Rule 13 of the CPC for setting aside the aforesaid ex-parte judgment and decree dated 04.08.2015. The learned Civil Judge, (Senior Division), Kashipur, District U.S. Nagar rejected the said application vide judgment and order dated 28.05.2022 and the Civil Misc. No.10 of 2018, Mahesh Singh vs. Vinod Kumar Joshi was rejected.

4. It is feeling aggrieved by the aforesaid judgment and order dated 28.05.2022, petitioner filed a Misc. Civil Appeal No.1 of 2023, Mahesh Singh vs. Vinod Kumar Joshi raising the same contention that the petitioner was not aware of the pendency of the suit, therefore, the ex-parte judgment and decree be set-aside and the application of the petitioner under Order 9 Rule 13 of CPC has wrongly been rejected by the learned Civil Judge, (Senior Division), Kashipur. But Misc. Civil Appeal met the same fate.

5. I have perused the impugned order dated 28.05.2022, passed by Civil Judge, (Senior Division), Kashipur, U.S. Nagar as well as the order dated 07.11.2023, passed by learned First Additional District Judge, Kashipur, District U.S. Nagar.

6. From the perusal of both the judgments, it is reflected that the learned Civil Judge, Kashipur as well as the appellate court has gone in detail into the facts of the case, which resulted into ex-parte decree against the petitioner-defendant. Both the courts below has come up with the concurrent findings that not only sufficient service of summons were effected on the petitioner-

defendant by his refusal to take the notice, which was sent through post, but the summons were also published in the daily newspaper-Dainik Jagran circulated in the area. It is also pointed out by the appellate court as well as the trial court that the petitioner-defendant is also aware of the civil execution Case No.3 of 2016, the notice whereof was also refused by the petitioner-defendant and he was in full knowledge of the proceedings of the execution as well.

7. In this view of the matter, both the courts below i.e. Civil Judge, (Senior Division), Kashipur as well as the appellate court has come up to this conclusion that there was no reason to interfere with the ex-parte judgment and decree passed against the petitioner- defendant and accordingly, the application under order 9 Rule 13 of CPC was rejected. The appeal there against were also met the same fate.

8. Having gone through the impugned judgment and orders and the record of the case, as filed by the petitioner in the present writ petition, this Court does not find any illegality and infirmity in the impugned judgment and orders and accordingly, no interference is warranted. The writ petition deserves to be dismissed and accordingly is dismissed in-limine.

(Pankaj Purohit, J.) 02.01.2024 AK