# Brajpal Singh v. Kalyan Singh

- **Citation:** (2020) 6 ILRA 376
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** Writ-C No. 74265 of 2011
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brajpal-singh-v-kalyan-singh-45837
- **Pages:** 15

## Headnote

A. Civil Law - Code of Civil Procedure
,1908 - Order 9 Rule 13 - setting aside
decree exparte against defendant - Order 43
Rule 1 (d) - First appeal from order under Rule
13 order 9 rejecting an application fom an
order to set aside a decree passed exparte -
Order5 Rule2 - copy of plaint annexed to
summons - Limitation Act, 1963 - Section 5 -
condonation of delay - Order 41 Rule 27 -
Production of additional evidence in Appellate
court - acceptability of the explanation is the
only
criteria
to
condone
the
delay
(N.
Balakrishnan Vs. M. Krishnamurthy, 1998 (89)
RD 607) - ex-parte decree should not be set
aside lightly - burden is upon the applicant to
prove that the summons or notices was never
served upon him and he got knowledge of the
ex-parte decree on a particular date(S.P.
Srivastava Vs. Prem Lata AIR 1980 All 336)-
non enclosure of copy of plaint with summons is
merely
an
irregularity
(Raghubir
Sahai
Bhatnagar Vs. Bhakt Sajjan, AIR 1978 All 139).
(Para - 30,32,36,38)
Respondent executed an agreement to sale in
favour of petitioner - sale deed to be executed
within one year - not executed - petitioner
executed suit for execution - Trial Court
proceeded ex-parte on 13.9.2005 - after 4 years
- respondent filed application - under Order 9
Rule 13 CPC for setting aside the ex-parte order
- under Section 5 of the Limitation Act, 1963 for
condonation of delay - finding of Trial Court -
cause shown not sufficient - application rejected
- Appeal under Order 43 Rule 1 (d) of CPC -
Appellate Court proceeded on the presumption -
copy of the plaint not enclosed with the
registered summons - mandatory as per order 5
Rule 2 CPC to enclose the copy of plaint with
registered summons - Appellate Court further on
the basis of affidavit filed by the respondent and
report of Amin held that the possession of the
land in dispute was delivered without beating
drums by the Ardali of the Amin - application
allowed under Section 5 of the Limitation Act,
1963 and under Order 9 Rule 13 CPC . (Para3,4,5,8,9,10,,13,14,15,)

HELD:- Appellate Court has committed manifest
illegality in allowing the appeal and setting aside
the order dated order dated 26.2.2011 passed
by the trial court rejecting the application of
respondent to set aside ex-parte judgment and
decree dated 13.9.2005.(Para - 41)

Petition allowed.(E-7)

List of cases cited:-

1.Raj Kumar Vs Jai Prakash (1987) ARC 234

2.Balwant Singh (dead) Vs Jagdish Singh & ors.
AIR (2010) SC 3043

3.Pradeep Kumar Vs Kamal Kant & ors. Writ
Petition (M/S) No. 2444 of 2019

4.Balwant Singh (dead) Vs Jagdish Singh & ors.
AIR (2010) SC 3043

5.N. Balakrishnan Vs M. Krishnamurthy (1998)
89
RD
607
6 All. Brajpal Singh Vs. Kalyan Singh
377
6.S.P. Srivastava Vs Prem Lata AIR (1980) All
336

7.Raghubir Sahai Bhatnagar Vs Bhakt Sajjan AIR
(1978) All 139

8.Commissioner of Income Tax Vs Hindustan
Bulk Carriers AIR (2003) SC 3942

## Text

_Characters 0–39,663 of 52,250. This is a partial read: ask again with offset=39663 for what follows._

376 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The respondent Corporation is
directed to release the insurance amount in
favour of the claimant if he is able to
establish his claim as successor/ nominee
of the policy in accordance with law,
within a period of three months from the
date of production of certified copy of this
order.
----------
(2020)06ILR A376
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-C No. 74265 of 2011

Brajpal Singh ...Petitioner
Versus
Kalyan Singh ...Respondent

Counsel for the Petitioner:
Y.S. Bohra

Counsel for the Respondents:
Sri Kapil Kumar, Sri Dinesh Pathak, Ms.
Sandhya Singh

A. Civil Law - Code of Civil Procedure
,1908 - Order 9 Rule 13 - setting aside
decree exparte against defendant - Order 43
Rule 1 (d) - First appeal from order under Rule
13 order 9 rejecting an application fom an
order to set aside a decree passed exparte -
Order5 Rule2 - copy of plaint annexed to
summons - Limitation Act, 1963 - Section 5 -
condonation of delay - Order 41 Rule 27 -
Production of additional evidence in Appellate
court - acceptability of the explanation is the
only
criteria
to
condone
the
delay
(N.
Balakrishnan Vs. M. Krishnamurthy, 1998 (89)
RD 607) - ex-parte decree should not be set
aside lightly - burden is upon the applicant to
prove that the summons or notices was never
served upon him and he got knowledge of the
ex-parte decree on a particular date(S.P.
Srivastava Vs. Prem Lata AIR 1980 All 336)-
non enclosure of copy of plaint with summons is
merely
an
irregularity
(Raghubir
Sahai
Bhatnagar Vs. Bhakt Sajjan, AIR 1978 All 139).
(Para - 30,32,36,38)
Respondent executed an agreement to sale in
favour of petitioner - sale deed to be executed
within one year - not executed - petitioner
executed suit for execution - Trial Court
proceeded ex-parte on 13.9.2005 - after 4 years
- respondent filed application - under Order 9
Rule 13 CPC for setting aside the ex-parte order
- under Section 5 of the Limitation Act, 1963 for
condonation of delay - finding of Trial Court -
cause shown not sufficient - application rejected
- Appeal under Order 43 Rule 1 (d) of CPC -
Appellate Court proceeded on the presumption -
copy of the plaint not enclosed with the
registered summons - mandatory as per order 5
Rule 2 CPC to enclose the copy of plaint with
registered summons - Appellate Court further on
the basis of affidavit filed by the respondent and
report of Amin held that the possession of the
land in dispute was delivered without beating
drums by the Ardali of the Amin - application
allowed under Section 5 of the Limitation Act,
1963 and under Order 9 Rule 13 CPC . (Para3,4,5,8,9,10,,13,14,15,)

HELD:- Appellate Court has committed manifest
illegality in allowing the appeal and setting aside
the order dated order dated 26.2.2011 passed
by the trial court rejecting the application of
respondent to set aside ex-parte judgment and
decree dated 13.9.2005.(Para - 41)

Petition allowed.(E-7)

List of cases cited:-

1.Raj Kumar Vs Jai Prakash (1987) ARC 234

2.Balwant Singh (dead) Vs Jagdish Singh & ors.
AIR (2010) SC 3043

3.Pradeep Kumar Vs Kamal Kant & ors. Writ
Petition (M/S) No. 2444 of 2019

4.Balwant Singh (dead) Vs Jagdish Singh & ors.
AIR (2010) SC 3043

5.N. Balakrishnan Vs M. Krishnamurthy (1998)
89
RD
607
6 All. Brajpal Singh Vs. Kalyan Singh
377
6.S.P. Srivastava Vs Prem Lata AIR (1980) All
336

7.Raghubir Sahai Bhatnagar Vs Bhakt Sajjan AIR
(1978) All 139

8.Commissioner of Income Tax Vs Hindustan
Bulk Carriers AIR (2003) SC 3942

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Y.S. Bohra, learned
counsel for the petitioner and Sri Dinesh
Pathak and Ms. Sandhya Singh, learned
counsel for the respondent.

2. The petitioner by means of the
present writ petition has assailed the order
dated 8.11.2011 passed by Additional District
& Sessions Judge, Court No. 3, Bulandshahr
in Misc. Appeal No. 26 of 2011 (Kalyan
Singh Vs. Brajpal) whereby the Appellate
Court has condoned the delay in filing the
application under Order 9 Rule 13 of Civil
Procedure Code, 1908 (hereinafter referred to
as 'CPC') of the respondent and further
allowed the application under Order 9 Rule
13 of CPC and set aside the ex-parte
judgement dated 13.9.2005.

3. Brief facts giving rise to the present
writ petition are that the respondent-Kalyan
Singh executed an agreement to sale in
favour of Brajpal Singh-petitioner in
respect of 1/4th share of Plot No. 329 total
area 1.564 situated at Village Khanauda,
Pargana and Tehsil Anupshahr, District
Bulandshahr for a sale consideration of Rs.
1,50,000/-.
The
petitioner
paid
Rs.
1,25,000/- in advance on 1.7.2002 to
Kalyan Singh . As per terms and conditions
of the agreement to sale, the sale deed was
to be executed within one year from the
date of agreement to sale i.e. on or before
30.6.2003.

4. As the sale deed was to be executed
on or before 30.6.2003, the petitioner gave
a notice dated 2.6.2003 through Advocate
to the respondent asking him to execute the
sale deed within 15 days from the date of
receiving of registered notice. By the said
notice, the petitioner also requested the
respondent to inform the date on which the
sale deed is to be executed so that he may
remain present in the registry office for the
execution of sale deed. The respondent did
not reply to the notice dated 2.6.2003.
However, the petitioner was present in the
registry office with the balance sale
consideration of Rs. 25,000/- and other
incidental expenses for the purpose of
execution of sale deed. The respondents did
not turn up for execution of sale deed.
When the respondent did not execute the
sale deed despite the request by petitioner
several times, the petitioner gave another
notice
dated
25.4.2004
asking
the
respondent for execution of sale deed. The
respondent despite service of notice dated
25.4.2004 did not execute the sale deed.

5. In the aforesaid factual backdrop,
the petitioner instituted an Original Suit
No. 479 of 2004 before the Court of Civil
Judge
(Senior
Division),
Bulandshahr
praying
for
a
decree
of
specific
performance of contract for execution of
sale deed in respect of the aforesaid
property.

6. In the suit, summons were issued to
the respondent. The summons were sent to
the respondent trough process server as
well as by registered post. The summons
sent by the registered post was refused by
the respondent on 18.10.2004. The postal
department returned the summons with
endorsement " लेने से िना तकया ".
378 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The wife of the respondent refused
to accept the summons sought to be served
through process server and also refused to
tell the address of her husband. The process
server submitted a report on the back side
of the summon which contained signature
of two witnesses namely (1) Brajpal Singh
s/o Arjun Singh and (2) Om Prakash
Raghav s/o Kuwarpal Singh Raghav. The
report of process server stated that the wife
of the respondent Kalyan Singh refused to
receive the summon and also refused to tell
the address of Kalyan Singh, therefore, the
summon was affixed on the door of the
house. In view of the aforesaid fact, the
Trial Court found service of summons upon
the respondent sufficient, and consequently,
it passed an order dated 20.4.2005 to
proceed ex-parte in the suit. The order of
the court below dated 20.4.2005 reads as
under:-

"20-04-2005

okn iqdkjk x;kA oknh e; fo}ku
vf/koDrk mifLFkrA i=koyh dk ifj'khyu fd;k
x;kA dkxt la[;k & 11 , jftLVah dks izfroknh
}kjk ysus ls bUdkj ds lEcU/k es izfof"V dh x;h
gSA bUdkjh ls rkehy Ik;kZIr gSA izfroknh
vuqifLFkr gSA i=koyh okLrs izfrokn i= ,oa
lajpuk fook/kd fu;r gSA izfroknh ij rkehy
Ik;kZIr gSA izfroknh dh vuqifLFkfr ds dkj.k okn
izfroknh ds fo#) ,d i{kh; Jo.k fd;k tk;sxkA
i=koyh okLrs ,d i{k lk{; fnukad 28-04-2005
dks is'k gksA

1⁄4'kadj yky1⁄2

vij flfoy tt 1⁄4izoj [k.M1⁄2

U;k; d{k la[;k & 3] cqyUn'kgjA""

8. Thereafter, the Trial Court
proceeded ex-parte and decreed the suit by
judgement and order dated 13.9.2005. The
petitioners, thereafter, filed Execution Case
No. 30 of 2005 for execution of the decree
in which the notices were sent to the
judgement-debtor i.e. respondent. The
respondent refused to accept the notice.
Consequently, the Executing Court on
1.4.2006 passed an order to proceed exparte as the service of summon upon the
respondent is sufficient. The order dated
1.4.2006 passed in Execution Case No. 30
of 2005, is extracted herein below:-

1-4-06 i=koyh izLrqr gqbZA

iqdkj djkbZ xbZA iqdkj ij fMdzhnkj
e; fo}ku vf/koDrk U;k;ky; esa mifLFkr gSA
fu.khZr _.kh ij rkehy tfj;s badkjh Ik;kZIr gSA
fu.khZr _.kh dh vksj ls U;k;ky; esa dksbZ
mifLFkr ugh gqvk gSA vkKfIr /kkjd }kjk elkSnk
cSukek i=koyh ij miyC/k djk;k x;k gSA
dk;kZy; vk[;k ds vuqlkj elkSnk cSukek fMdzh
ds vuqlkj lgh gSA ,slh fLFkfr es vkKfIr /kkjd
}kjk izLrqr elkSnk cSukek vuqeksfnr fd;k tkrk
gSA vkKfIr /kkjd dks funsZf'kr fd;k tkrk gS fd
og fodz; foys[k jftLVahdj.k ds fy;s okafNr
;Fkksfpr U;k;'kqYd i=koyh ij miyC/k djk;sA
bl lEcU/k esa vko';d midze vfoyEc djsaA
i=koyh okLrs vfxze vkns'k 21@4@06 dks izLrqr
dh tk;sA

g0 vifBr

vij flfoy tt 1⁄4o0 l01⁄2 d0 la0 &
1] cqyUn'kgj"

9. By the said order, the Executing
Court also directed the decree holder i.e.
the petitioner to produce draft sale deed and
also deposit the expenses. The petitioner in
compliance of court's order produced draft
sale deed before the Executing Court. On
depositing the balance sale consideration of
Rs. 25,000/-, the Executing Court sent the
sale deed for registration to the Sub
Registrar by order dated 18.4.2006. The
sale deed was registered on 1.5.2006 in the
Office of Sub Registrar, Anupshahr, District
Bulandshahr. The Executing Court after
receiving the sale deed passed an order on
2.12.2006 for delivery of possession of the
aforesaid plot to the petitioner through
Court Amin. The Court Amin executed the
6 All. Brajpal Singh Vs. Kalyan Singh
379
delivery of possession on 22.2.2007 after
completing all the formalities in the
presence of witnesses and submitted report
and possession memo to the Executing
Court. It appears that subsequent to the
execution of the sale deed, the name of the
petitioner was mutated in the revenue
record.

10. The respondent after about four
years from the date of ex-parte judgement
and
decree
dated
13.9.2005
filed
application under Order 9 Rule 13 CPC for
setting aside the ex-parte judgement and
order dated 13.9.2005 which was numbered
as Misc. Case No. 14 of 2009. The
respondent also filed an application under
Section 5 of the Limitation Act, 1963
praying for condonation of delay in filing
the application under Order 9 Rule 13 CPC.

11. In the affidavit in the delay
condonation application, the respondent
stated that the respondent had not refused
to receive any summon sent by registered
post or through process server, and the
refusal has been endorsed on the registry by
postman in collusion with the petitioner. He
further stated that the respondent came to
know about the execution of sale deed for
the first time on 16.2.2009 when he visited
the Lekhpal of the village to obtain khasara
and khatauni of the property, and he was
told by the Lekhpal about the mutation of
the name of the petitioner in the revenue
records.
The
respondent,
thereafter,
contacted his counsel on 18.2.2009, and
after inspection of record, he found that exparte judgment has been passed by the
Court treating the service of summons
sufficient on account of refusal by the
respondent to accept summons sent through
registered
post.
The
respondent
immediately filed an application for setting
aside the ex-parte decree. The respondent
has prayed for condonation of delay on the
basis of averments made in the delay
condonation application detailed above.

12. The aforesaid application was
contested by the petitioner by filing reply to
the delay condonation application as well
as application under Order 9 Rule 13 CPC.
The petitioner in his reply to the delay
condonation application stated that the
respondent has falsely stated that he came
to know about the ex-parte order on
16.2.2009. It was further stated that the
judgement-debtor i.e. respondent had full
knowledge about the decree and delivery of
possession of the property to the petitioner
in execution of the said decree. He denied
the fact that there was any collusion with
the postman in obtaining the endorsement
of refusal. The petitioner had further stated
that there was inordinate delay in filing the
application under Order 9 Rule 13 CPC;
and the respondent had failed to establish
that the delay in filing the application under
Order 9 Rule 13 CPC was bonafide. It was
also stated that the respondent had failed to
make out any case for setting aside the exparte judgment and decree dated 13.9.2005.
Accordingly, he prayed that the delay
condonation
application
as
well
as
application under Order 9 Rule 13 CPC is
liable to be dismissed.

13. The Trial Court vide judgement
and order dated 26.2.2011 rejected the
delay
condonation
application,
and
consequently, dismissed the application of
respondent under Order 9 Rule 13 CPC.
The Trial Court recorded specific finding
that the petitioner had denied the fact that
the respondent came to know about the exparte judgement on 16.2.2009 when he
visited the Lekhpal to obtain the khasara
and khatauni of the aforesaid property and
he (petitioner) had colluded with the
380 INDIAN LAW REPORTS ALLAHABAD SERIES
postman to put endorsement of refusal on
the registered notice, hence, the burden was
upon the respondent to prove that the
endorsement of refusal was obtained by
fraud,
but
the
respondent
failed
to
discharge the said burden as he did not lead
any evidence to establish that there was any
collusion between the petitioner and the
postman. The Trial Court further noticed
the fact that the order to proceed ex-parte
was passed prior to transfer of case to the
Court of Additional Civil Judge as stated by
the respondent in paragraph No. 7 of the
rejoinder affidavit, therefore, there was no
occasion to issue fresh notice to the
respondent. The Trial Court found that the
cause shown by the respondent for delay in
not filing the application under Order 9
Rule 13 CPC within time was not
sufficient, accordingly, it rejected the
application under Section 5 of The
Limitation Act, and also the application
under Order 9 Rule 13 CPC.

14. Feeling aggrieved by the order
dated 26.2.2011 passed by the Additional
Civil Judge, Pravar Khand, Court No. 3,
Bulandshahr dismissing the Misc. Case No.
14 of 2009, the respondent preferred First
Appeal From Order under Order 43 Rule 1
(d) of CPC which was numbered as Misc.
Civil Appeal No. 26 of 2011. The Appellate
Court by the judgement and order dated
8.11.2011 allowed the delay condonation
application of respondent as well as the
application under Order 9 Rule 13 CPC and
set aside the ex-parte judgement and decree
dated 13.9.2005 on payment of cost of Rs.
500/- and restored the Original Suit No.
479 of 2004 to its original number.

15. The Appellate Court proceeded on
the presumption that the copy of the plaint
was not enclosed with the registered
summons whereas as per order 5 Rule 2 CPC,
it is mandatory to enclose the copy of plaint
with registered summons. The Appellate
Court further on the basis of affidavit filed by
the respondent and report of Amin held that
the possession of the land in dispute was
delivered without beating drums by the
Ardali of the Amin on the ground that the
name of Ardali, who was assigned the duty of
beating drums, was not recorded in the
Amin's report. The Appellate Court further
relied upon the affidavit of some persons filed
by the respondent on the ground that all
affidavits were of the person who were
resident of Village Khanauda where the
property in dispute was situated whereas the
affidavit filed by the petitioner in support of
his case were of persons who were not the
resident of Village Khanauda. The Appellate
Court was of the view that as the respondent
has filed application under Order 9 Rule 13
CPC within time from the date of knowledge
of ex-parte decree, hence, the cause shown by
the respondent for delay in filing the
application under O9R13 C.P.C. is sufficient.
Accordingly,
it
allowed
the
delay
condonation
application
and
also
the
application under Order 9 Rule 13 CPC.

16. Learned counsel for the petitioner
challenging the aforesaid order contended
that the Appellate Court while allowing the
appeal has carved out a new case inasmuch as
neither in the application under Order 9 Rule
13 CPC nor in the delay condonation
application under Section 5 of The Limitation
Act, the respondent has stated that the
registered summon did not contain the copy
of the plaint. He submits that there is a
presumption that the officials act are deemed
to have been done regularly, and thus, finding
of the Appellate Court that copy of plaint was
not enclosed with the registered summons is
illegal and based upon no evidence on record.
In support of the said submission he has
placed reliance upon the judgement of this
6 All. Brajpal Singh Vs. Kalyan Singh
381
Court in the case of Raj Kumar Vs. Jai
Prakash, 1987 ARC 234.

17. He further submits that there is no
pleading
in
the
application
of
the
respondent under Section 5 of The
Limitation Act, 1963 and Order 9 Rule 13
CPC to the effect that there was no beating
of drum by the 'Ardali' of the Amin at the
time of delivery of possession nor the
report of the Amin was challenged by the
appellant on the ground that it did not state
the name of Ardali of the Amin who was
assigned with the duty of beating drums in
the aforesaid two applications of the
respondents. Thus, the submission is that
the
Appellate
Court
has
committed
manifest error of law apparent on the face
of record in allowing the application of the
respondent under Section 5 of The
Limitation Act as well as under Order 9
Rule 13 CPC by carving out a new case
which was not pleaded by the respondent.
He submits that in the present case, a
valuable right has accrued to the petitioner,
and the Appellate Court had failed to
consider this aspect of the matter while
allowing the delay condonation application.
He has placed reliance upon the judgement
of Apex Court in the case of Balwant
Singh (dead) Vs. Jagdish Singh and
others, AIR 2010 SC 3043.

18. He further submits that the
Appellate Court has acted illegally in
relying upon the additional evidence filed
by the respondent in the form of affidavit in
appeal in the absence of any order passed
by the Appellate Court to admit the
additional evidence at the appellate stage.

19. Per contra, learned counsel for
the
respondent
contends
that
the
Appellate Court has not committed any
jurisdictional
error
in
allowing
the
application under Order 9 Rule 13 CPC,
therefore, this Court should refrain from
exercising its power under Article 226 of
the Constitution of India. In support of
his submission, he has placed reliance on
the judgement of Uttarakhand High
Court at Nainital in the case of
Pradeep Kumar Vs. Kamal Kant and
others in Writ Petition (M/S) No. 2444
of 2019 decided on 2.9.2019. He further
submits that the Court should adopt
liberal approach to consider sufficient
cause in condoning the delay in order to
do substantial justice. Learned counsel
for the respondent further contends that
the summons have not been properly
served and the procedure of service of
notice has not been followed and this
aspect has not been considered by the
Trial
Court
while
rejecting
the
application under Order 9 Rule 13 CPC.

20. I have heard rival submissions
of learned counsel for the parties and
perused the record.

21. The moot question which arise for
consideration is as to whether the Appellate
Court was justified in condoning the
inordinate delay of about 4 years in filing
the application under Order 9 Rule 13 CPC
of the respondent.

22. It transpires from the record that
the Trial Court after having been satisfied
with the sufficiency of service of summons
upon the respondent passed an order on
20.4.2005 to proceed ex-parte. The Trial
Court, thereafter, proceeded to hear the suit
and passed the ex-parte judgment and
decree on 13.9.2005.

23. Thereafter, the petitioner preferred
Execution Case No. 30 of 2005 in which
Executing Court after being satisfied with
382 INDIAN LAW REPORTS ALLAHABAD SERIES
the service of notice upon the respondent
passed an order on 1.4.2006 to proceed exparte and directed the petitioner to produce
the draft sale deed and also deposit the
required expenses. Pursuant to the order
dated 1.4.2006 passed by the Executing
Court, the petitioner deposited expenses
and filed draft sale deed which was
registered on 1.5.2006. The Executing
Court passed an order on 2.12.2006 for
delivery of possession which was given to
the petitioner through Amin on 22.2.2007.

24. In the facts of the present case, it
would be appropriate at this stage to refer
the averments made by respondent in
application dated 19.2.2009 under Order 9
Rule 13 CPC which are extracted herein
below:-

izkFkZuki= uEcj lkfcd vUrxZr vkns'k 9
fu;e 13 lifBr /kkjk 151 lh0 ih0 lh0 fo#)
U;k;ky; fl0 tt 1⁄4fl0 fMoh01⁄2 cqyUn'kgj ewy
okn la0 & 479@ 2004 cztiky flag izfr dY;ku
flag esa ikfjr vkns'k o fMdzh

fnukad 13&9&2005 esa fuEu vk/kkjksa ij
izLrqr gS &

1- ;g fd vkns'k fnukad 13-9-05 ,d
i{kh; #Ik ls izkFkhZ ds f[kykQ xyr rF;ksa ij ikfjr
dj fn;k x;k gSA

2- ;g fd ewy okn esa lEcfU/kr leu
}kjk jftLVah ftlesa izkFkhZ }kjk ysus ls badkj okyh
ckr fy[kh x;h gS fcYdqy vlR; ,oa fujk/kkj gS]
izkFkhZ ds ikl dHkh U;k;ky; dk leu o jftLVah
dHkh dksbZ deZpkjh ysdu ugh igqapk gSA

3- ;g fd foi{kh@ oknh }kjk izkFkhZ
dks uqdlku igqapkus ,oa [kqn dks Qk;nk igqapkus
dh fu;r ls jftLVah ij lkft'k ds rgr izkFkhZ ds
bls ysus ls badkj dh ckr fcYdqy >wBh fy[kk;h
x;h gSA

4- ;g fd izkFkhZ@ izfroknh }kjk vius
vko';d dk;Z gsrq ys[kiky ls vius [ksr dh
udy [kljk o [krkSuh ekaxus ij fnukad 16-22009 dks izkFkhZ ds uke dh txg foi{kh@
izfroknh dk uke ntZ gksus dh tkudkjh feyh
ftl ij izkFkhZ dks vnkyr }kjk oknh ds gd esa
cSukes djus dh irk yxus ij izkFkhZ us vius
vf/koDrk ls ewy i=koyh dh tkudkjh djkdj
fnukad 18-2-2009 dks eqvk;uk djk;kA ftlls
leLr tkudkjh izkIr gqbZA

5- ;g fd ,slk dksbZ dkj.k ugh Fkk
ftlls izkFkhZ dks jftLVah uk ysus ls dksbZ Qk;nk
igqapk jgk gksrk ftldh otg ls izkFkhZ us jftLVah
ysus ls euk dj nsrkA

6& ;g fd foi{kh@ oknh }kjk
izkFkhZ@ izfroknh ds jftLVah ds ysus ls badkj
fy[kkus ij oknh us vnkyr dks xqejkg dj tku
cw>dj uktk;t Qk;nk mBk;k gSA

7& ;g fd U;k;ky; }kjk ikfjr
,di{kh; vkns'k fnukad 13-9-05 ds cus jgus ls
izkFkhZ@ izfroknh dh l[r gdryQh gSA

8& ;g fd U;k;fgr esa ,d i{kh;
vkns'k fnukad 13-9-05 dks lekIr dj mDr okn
dks xq.k nks"k ds vk/kkj ij r; djus ds fy;s
uEcj lkfcd ij fy;k tkuk vfr vko';d gSA

vr% Jheku th ls izkFkZUkk gS fd izkFkhZ
dk uEcj lkfcd izkFkZuk i= Lohdkj dj
U;k;ky; }kjk ikfjr ,di{kh; vkns'k fnukad 139-2005 dks fujLr dj izkFkhZ@ izfroknh dks mlds
lcwr dk volj iznku dj okn dks xq.k nks"k ds
vk/kkj ij r; fd;k tkos] d`ik gksxhA

fnukad 19-2-09

izkFkhZ@ izfroknh

dY;ku flag iq= Jh jkeLo#i

fuoklh xzke & [kukSnk ijxuk

rglhy vuwi'kgj ftyk cqyUn'kgj"

25. The respondent also filed delay
condonation application stating therein that
he had never received notice served
through registered post or summon alleged
to have been served upon him, and the
endorsement of refusal made on the
registered summon by the postman was an act
of fraud of petitioner in collusion with the
postman. He further averred that when he
visited the Lekhpal to obtain khasara and
khatauni of the aforesaid property on
16.2.2009, he came to know about the
6 All. Brajpal Singh Vs. Kalyan Singh
383
execution of the sale deed and mutation of
name of respondent in the revenue record in
respect of the aforesaid property. Thereafter, he
inspected the record of the Trial Court on
18.2.2009
and
immediately
filed
an
application on 19.2.2009 for recall of the exparte judgment and decree. On the basis the of
the aforesaid averments, he prayed for
condonation of inordinate delay in filing the
application under Order 9 Rule 13 CPC of
about four years.

26. It would be apposite to refer the
judgment of the Apex Court in the case of
Balwant Singh (dead) Vs. Jagdish Singh and
others, AIR 2010 SC 3043 wherein the Apex
Court has refused to condone the inordinate
delay of 778 days in filing the substitution
application by the heirs of the appellant who
died on 28.11.2007. The Apex Court held that
even if the term 'sufficient cause' has to receive
liberal construction, it must squarely fall within
the concept of reasonable time and proper
conduct of the concerned party. Paragraph Nos.
13 and 16 of the Balwant Singh (dead)
(supra) reads as under:-

"13. As held by this Court in the
case of Mithailal Dalsangar Singh (supra),
the abatement results in the denial of
hearing on the merits of the case, the
provision of abatement has to be construed
strictly. On the other hand, the prayer for
setting aside an abatement and the
dismissal consequent upon an abatement,
have to be construed liberally. We may
state that even if the term `sufficient cause'
has to receive liberal construction, it must
squarely
fall
within
the
concept
of
reasonable time and proper conduct of the
concerned
party.
The
purpose
of
introducing liberal construction normally is
to
introduce
the
concept
of
`reasonableness' as it is understood in its
general connotation. The law of limitation
is a substantive law and has definite
consequences on the right and obligation of
a party to arise. These principles should be
adhered to and applied appropriately
depending on the facts and circumstances
of a given case. Once a valuable right, as
accrued in favour of one party as a result of
the failure of the other party to explain the
delay by showing sufficient cause and its
own conduct, it will be unreasonable to
take away that right on the mere asking of
the applicant, particularly when the delay
is directly a result of negligence, default or
inaction of that party. Justice must be done
to both parties equally. Then alone the ends
of justice can be achieved. If a party has
been thoroughly negligent in implementing
its rights and remedies, it will be equally
unfair to deprive the other party of a
valuable right that has accrued to it in law
as a result of his acting vigilantly. The
application filed by the applicants lack in
details. Even the averments made are not
correct and ex-facie lack bona fide. The
explanation has to be reasonable or
plausible, so as to persuade the Court to
believe that the explanation rendered is not
only true, but is worthy of exercising
judicial discretion in favour of the
applicant. If it does not specify any of the
enunciated
ingredients
of
judicial
pronouncements,
then
the
application
should be dismissed. On the other hand, if
the application is bona fide and based upon
true and plausible explanations, as well as
reflect normal behaviour of a common
prudent person on the part of the applicant,
the Court would normally tilt the judicial
discretion in favour of such an applicant.
Liberal construction cannot be equated
with doing injustice to the other party. In
the case of State of Bihar v. Kameshwar
Prasad Singh [(2000) 9 SCC 94], this
Court had taken a liberal approach for
condoning the delay in cases of the
384 INDIAN LAW REPORTS ALLAHABAD SERIES
Government, to do substantial justice.
Facts of that case were entirely different as
that was the case of fixation of seniority of
400 officers and the facts were required to
be verified. But what we are impressing
upon is that delay should be condoned to
do substantial justice without resulting in
injustice to the other party. This balance
has to be kept in mind by the Court while
deciding such applications. In the case of
Ramlal and others v. Rewa Coalfields Ltd.,
[AIR 1962 SC 361] this Court took the
view:

"7. In construing Section 5 is
relevant to bear in mind two important
considerations.

The first consideration is that the
expiration of the period of limitation
prescribed for making an appeal gives rise
to a right in favour of the decree holder to
treat the decree as binding between the
parties. In other words, when the period of
limitation prescribed has expired the
decree-holder has obtained a benefit under
the law of limitation to treat the decree as
beyond challenge, and this legal right
which has accrued to the decree holder by
lapse of time should not be light heartedly
disturbed. The other consideration which
cannot be ignored is that if sufficient cause
for excusing delay is shown discretion is
given to the Court to condone delay and
admit the appeal. This discretion has been
deliberately conferred on the Court in
order that judicial power and discretion in
that behalf should be exercised to advance
substantial justice. As has been observed by
the Madras High Court in Krishna v.
Chathappan, ILR 13 Mad 269.

It is however, necessary to
emphasize that even after sufficient cause
has been shown a party is not entitled to
the condonation of delay in question as a
matter of right. The proof of a sufficient
cause is a condition precedent for the
exercise of the discretionary jurisdiction
vested in the court by Section 5. If sufficient
cause is not proved nothing further has to
be done; the application for condoning
delay has to be dismissed on that ground
alone. If sufficient cause is shown then the
Court has to enquire whether in its
discretion it should condone the delay. This
aspect of the matter naturally introduces
the consideration of all relevant facts and it
is at this stage that diligence of the party or
its bona fides may fall for consideration;...

16. Above are the principles
which should control the exercise of
judicial discretion vested in the Court
under these provisions. The explained delay
should
be
clearly
understood
in
contradistinction to inordinate unexplained
delay. Delay is just one of the ingredients
which has to be considered by the Court. In
addition to this, the Court must also take
into account the conduct of the parties,
bona fide reasons for condonation of delay
and whether such delay could easily be
avoided by the applicant acting with
normal care and caution. The statutory
provisions mandate that applications for
condonation of delay and applications
belatedly filed beyond the prescribed
period of limitation for bringing the legal
representatives on record, should be
rejected unless sufficient cause is shown for
condonation of delay. The larger benches
as well as equi-benches of this Court have
consistently followed these principles and
have either allowed or declined to condone
the delay in filing such applications. Thus,
it is the requirement of law that these
applications cannot be allowed as a matter
of right and even in a routine manner. An
applicant must essentially satisfy the above
stated ingredients; then alone the Court
would be inclined to condone the delay in
the filing of such applications."
6 All. Brajpal Singh Vs. Kalyan Singh
385

27. In the light of parameters laid
down by the Apex Court in the aforesaid
judgment, now the Court proceeds to
examine as to whether the explanation
tendered by the respondent in delay
condonation application is sufficient to
condone the inordinate delay of four years
in filing the application under O9R13
C.P.C.

28. In the case in hand, the respondent
has denied the fact that he had ever refused
to accept the notice or summons of suit
through process server or by registered
post, and he came to know about the exparte judgment as well as execution of the
sale deed on 16.2.2009 when he visited the
Lekhpal to obtain copy of khasara and
khatauni. At this stage, it is relevant to
point out that neither the delay condonation
application nor the application under Order
9 Rule 13 CPC disputes the correctness of
the finding recorded by the Executing
Court in order dt. 1.4.2006 in Execution
Case No. 30 of 2005 regarding the
sufficiency of service of notice of execution
case
upon
the
respondent-judgement
debtor. It is also important to note that the
aforesaid two applications do not contain
any averment that the Ardali of the Amin
did not beat the drums at the time of
delivery of possession nor theses two
applications doubted the correctness of the
report of the Amin. In this view of the fact,
it is highly improbable that the delivery of
possession of the property could have been
effected by the Amin to the petitioner
without knowledge of the respondent.

29. Thus, the aforesaid facts
clearly indicates that the respondent had
knowledge about the ex-parte judgment
and decree much before the filing of
application under Order 9 Rule 13 CPC
and delay in filing the application under
O9 R13 C.P.C. was not sufficiently
explained.

30. The Apex Court in the case of
N.
Balakrishnan
Vs.
M.
Krishnamurthy, 1998 (89) RD 607 has
held that the acceptability of the
explanation is the only criteria to
condone the delay; sometimes delay of
very short period is not condonable for
want of unacceptable explanation. The
relevant portion of the said judgement
is extracted hereinbelow:-

"It
is
axiomatic
that
condonation of delay is a matter of
discretion of the court. Section 5 of the
Limitation Act does not say that such
discretion can be exercised only if the
delay is within a certain limit. Length of
delay is no matter, acceptability of the
explanation
is
the
only
criterion.
Sometimes delay of the shortest range
may be uncondonable due to want of
acceptable
explanation
whereas
in
certain other cases delay of very long
range
can
be
condoned
as
the
explanation thereof is satisfactory. "

31.

The
judgment
of
N.Balakrishnan (supra) is of no help
to
respondent
inasmuch
as
the
respondent has not tendered plausible
and cogent explanation which can be
said to be sufficient and acceptable for
condoning the inordinate delay of four
years in filing the application under
O9R13 C.P.C.

32. Further, though a bald averment
has been made by the respondent in both
the applications that he had not refused to
accept the service of summons but this fact
was denied by the petitioner. In such an
event, the burden of proof was on the
386 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent to establish by leading evidence
that
the
endorsement
of
refusal
on
registered notice was an act of fraud of the
petitioner in collusion with the postman.
The respondent did not lead any evidence
to establish the aforesaid facts, and in this
view of the fact, the Trial Court rightly
recorded finding that the respondent had
failed to discharge burden to prove that the
endorsement of refusal was obtained by
fraud on the registered notice. The
aforesaid finding of the Trial Court is
supported by the judgement of this Court in
the case of S.P. Srivastava Vs. Prem Lata
AIR 1980 All 336 wherein it has been held
that an ex-parte decree should not be set
aside lightly, and the burden is upon the
applicant to prove that the summons or
notices was never served upon him and he
got knowledge of the ex-parte decree on a
particular
date.
Relevant
extract
of
paragraph 6 of the judgment is reproduced
herein:

"6. The first point raises a
question of fact. When did the wife first
come to know of the ex parte decree? She
stated that she came to know of the ex parte
decree on the 15th April, 1976 after
inspection of the relevant papers. On the
13th April, 1976 she had come to know of a
proceeding of divorce instituted by the
husband. The ex parte decree was passed
on the 2nd June, 1973. Her knowledge was,
therefore after 34 months. It is obvious that
she was not living with the husband during
this period. The question whether she had
knowledge of the suit would not depend on
what she stated, for her statement remained
wholly uncorroborated. On the question
whether there was a service of the summons
of the the suit on her, there was a bare
denial. The positive evidence that could be
led in the case had been led by the
husband. Firstly, the process server was
examined and also a witness of the service.
The process server had been disbelieved for
the following reasons; The process server is
said to nave served the summons on the
22nd April, 1973. It was a Sunday. It was
stated by the process server that the
husband had come to the Nazarat to
enquire as to who would be taking the
summons to the opposite party. The court
below opined that it was amazing that the
office of Nazarat would remain open on a
Sunday. The court below also relied on the
circumstance that there was no compliance
with the Order 5, Rule 17 by the process
server, inasmuch as the summons had not
been pasted on the outer door of the house.
Thus, the court below came to the
conclusion that there was no service of the
summons on the wife. The finding of the
court below that she came to know of the ex
parte decree only on the 15th April, 1976
was based on no other consideration than
believing her. She had also to lead
sufficient evidence to show that she had no
knowledge whatsoever of the ex parte
decree. It is a relevant circumstance to be
considered when the application for setting
aside the ex parte decree was being moved
after 34 months. What was she doing all
this time? If there was a separation and she
was not living with her husband, what
prompted her to visit her husband's place
on the 14th April, 1976. In any event, there
is neither any consideration nor any
finding as to whether she had visited her
husband's place on the 14th April, 1976. If
she did not visit her husband's place on the
14th April, 1976, what made her to see the
record on the 15th April, 1976? The court
below has not considered any of these
matters and has set aside the ex parte
decree without considering the relevant and
material circumstance. An ex parte decree
is not to be set aside lightly. The wife
seeking to set aside the ex parte decree has
6 All. Brajpal Singh Vs. Kalyan Singh
387
got to prove to the entire satisfaction of the
court that the summons or notice was never
served on her and secondly that she got the
knowledge of the suit or proceeding on a
particular date. The burden is still more
heavy when the application for setting
aside the ex parte decree is made after the
period of limitation provided for moving
the said application. The applicant must
satisfy the court with cogent and reliable
evidence, the reasons which prevented him
or her from making the application within
time."

33. Now, the court proceed to analyze
as to whether the reasons recorded by the
Appellate
Court
in
allowing
delay
condonation
application
as
well
as
application
under
O9R13
C.P.C.
are
sustainable in law.

34. It is evident from the order of
the Appellate Court that it had carved
out a new case in allowing the
application of respondent under Section
5 of The Limitation Act inasmuch as no
foundation
had been
laid
by
the
respondent in application under Section
5 of The Limitation Act, 1963 or in the
application under Order 9 Rule 13
C.P.C. alleging that the Ardali of the
Amin did not beat the drum at the time
of delivery of possession nor the
respondent had disputed the correctness
of report of Amin in the aforesaid two
applications.

35.