# Narmal Prasad Mishra & Anr v. Mukut Bihari & Ors

- **Citation:** (2024) 3 ILRA 1433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-15
- **Case number:** Matter Under Article 227 No. 96 of 2024
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narmal-prasad-mishra-anr-v-mukut-bihari-ors-51604
- **Pages:** 19

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Order 9 Rule 13 - Limitation Act, 1963 -
Section 5 - Petitioners filed suit seeking
decree
of
cancellation
of
sale
deed
executed in favour of private respondents,
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
and for injunction, contending that Ram
Pyare, their maternal grandfather, already
bequeathed property to them under will -
Petitioners came to know of alleged sale
deed when defendants sought mutation of
their names in revenue records - Suit filed,
proceeded ex parte and finally decreed ex
parte - Defendants assailed ex parte
judgment and decree by filing applications
under O.9 R.13 in two separate sets -
Notices issued to petitioners in both cases
- Trial Court held applications within
limitation under Article 123 Limitation Act,
,rejected applications - Petitioners moved
applications
in
both
cases
seeking
dismissal of defendants' petitions on
ground that, since applications under
Section 5 Limitation Act rejected, petitions
liable to be dismissed - Trial Court
rejected
petitioners'
applications
and
defendants'
applications
allowed
-
Petitioners filed Civil Revision, dismissed -
Impugned
order
-
Held,
service
on
defendant by registered post failed as
cover returned with endorsement that she
resided in Surkhet, Nepal - Trial Court
effected service through publication in a
daily with no circulation in Surkhet, Nepal
- Urged that newspaper had circulation in
Nepalganj,
but
no
evidence
showed
circulation in Surkhet, Nepal - Trial and
Revisional Courts held defendant not duly
served - Treating publication as invalid
service, as limitation computed from date
of
knowledge,
rendering
applications
within time - Both Courts found sufficient
cause
preventing
defendants
from
contesting suit, and since ex parte decree
was joint and several, its setting aside for
one defendant extended to all - No error
in both orders. (Para 7 to 14, 62, 63)

Writ petitions dismissed. (E-13)

List of Cases cited:

## Text

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3 All. Narmal Prasad Mishra & Anr. Vs. Mukut Bihari & Ors.
1433
law.
29. In case of S. R. Ezaz v. The Tamil Nadu
Handloom Weavers Co-operative Society
Ltd. reported in 2002 (48) ALR 73, the
Apex
Court
has
held
as
under:
"In our view, if such actions by the mighty
or powerful are condoned in a democratic
country, nobody would be safe nor the
citizens can protect their properties. Law
frowns upon such conduct. The Court
accords legitimacy and legality only to
possession taken in due course of law. If
such actions are condoned, the fundamental
rights guaranteed under the Constitution of
India or the legal rights would be given go
bye either by the authority or by rich and
influential persons or by musclemen. Law
of jungle will prevail and 'might would be
right' instead of 'right being might'. This
Court in State of U.P. and others vs.
Maharaja Dharmander Prasad Singh and
others [(1989) 2 SCC 505] dealt with the
provisions of Transfer of Property Act and
observed that a lessor, with the best of title,
has no right to resume possession extrajudicially by use of force, from a lessee,
even after the expiry or earlier termination
of the lease by forfeiture or otherwise.
Under law, the possession of a lessee, even
after the expiry or its earlier termination is
juridical
possession
and
forcible
dispossession is prohibited. The Court also
held
that
there
is
no
question
of
Government withdrawing or appropriating
to it an extra judicial right of re-entry and
the possession of the property can be
resumed by the Government only in a
manner known to or recognized by law."
30. In the present case, the plaintiff has
asked for a decree of injunction restraining
the defendants from interfering in the
peaceful possession and enjoyment of the
plaintiff in respect of House No. N 638, S
Block, Yashoda Nagar, Kanpur Nagar. In
the plaint, the plaintiff has also claimed
himself to be the owner of the property. So
far as the possession of the plaintiff is
concerned, the same is not denied by the
defendants/petitioners as it is admitted that
the plaintiff is residing in the house with
the consent of the defendants being their
son, however, the defendant in suit have
claimed ownership in the property in
dispute. The question of ownership will be
decided only after framing of issues in this
regard and considering the evidence of the
parties at the time of trial of the suit. Since,
the possession of the plaintiff is admitted,
the lower appellate court has committed no
illegality in protecting possession of the
plaintiff.

31. Consequently, the writ petition fails and
is accordingly dismissed.
----------
(2024) 3 ILRA 1433
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.03.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Matter Under Article 227 No. 96 of 2024
alongwith other connected cases

Narmal Prasad Mishra & Anr.
 ...Petitioners
Versus
Mukut Bihari & Ors. ...Respondents

Counsel for the Petitioners:
Rajeiu Kumar Tripathi

Counsel for the Respondents:
Sushil Kumar Pathak, Pawan Kumar Mishra,
Piyush Asthana

Civil Law - Civil Procedure Code, 1908 -
Order 9 Rule 13 - Limitation Act, 1963 -
Section 5 - Petitioners filed suit seeking
decree
of
cancellation
of
sale
deed
executed in favour of private respondents,
1434 INDIAN LAW REPORTS ALLAHABAD SERIES
and for injunction, contending that Ram
Pyare, their maternal grandfather, already
bequeathed property to them under will -
Petitioners came to know of alleged sale
deed when defendants sought mutation of
their names in revenue records - Suit filed,
proceeded ex parte and finally decreed ex
parte - Defendants assailed ex parte
judgment and decree by filing applications
under O.9 R.13 in two separate sets -
Notices issued to petitioners in both cases
- Trial Court held applications within
limitation under Article 123 Limitation Act,
,rejected applications - Petitioners moved
applications
in
both
cases
seeking
dismissal of defendants' petitions on
ground that, since applications under
Section 5 Limitation Act rejected, petitions
liable to be dismissed - Trial Court
rejected
petitioners'
applications
and
defendants'
applications
allowed
-
Petitioners filed Civil Revision, dismissed -
Impugned
order
-
Held,
service
on
defendant by registered post failed as
cover returned with endorsement that she
resided in Surkhet, Nepal - Trial Court
effected service through publication in a
daily with no circulation in Surkhet, Nepal
- Urged that newspaper had circulation in
Nepalganj,
but
no
evidence
showed
circulation in Surkhet, Nepal - Trial and
Revisional Courts held defendant not duly
served - Treating publication as invalid
service, as limitation computed from date
of
knowledge,
rendering
applications
within time - Both Courts found sufficient
cause
preventing
defendants
from
contesting suit, and since ex parte decree
was joint and several, its setting aside for
one defendant extended to all - No error
in both orders. (Para 7 to 14, 62, 63)

Writ petitions dismissed. (E-13)

List of Cases cited:

1.
S.
Sundaram
Pillai
&
ors..Vs
V.R.
Pattabariman & ors..; 1985 (1) SCC 591

2. Ajeet Seeds Limited Vs K. Gopala Krishnaiah;
(2014) 12 SCC 685, (Paras 9, 10)

3. Sunil Poddar Vs U.O.I.; (2008) 2 SCC 326,
(Para 23)

4. Basant Singh & anr. Vs Roman Roman
Catholic Mission; (2002) 7 SCC 531, (Paras 6 to
9)

5. Parimal Vs Veena @ Bharti; (2011) 3 SCC
545, (Paras 12, 13, 15 to 19)

6. Ram Bharose Vs Ganga Singh 1931 SCC
Online All. 133

(Delivered by Hon'ble Jaspreet Singh, J.)

1. This is a batch of four petitions
preferred
under
Article
227
of
the
Constitution of India assailing the order
dated 20.12.2023 passed by the District
Judge,
Bahraich
and
order
dated
07.11.2023 passed by the Additional Civil
Judge (Junior Division)/F.T.C. Bahraich
whereby the application preferred by the
private respondents under Order 9 Rule 13
C.P.C. has been allowed and also holding
that the said application was within time
and was not barred by limitation.

2. Since the issue involved in all the
four petitions are common and the matter is
in between the same parties, consequently,
all the four petitions are being decided by
this common judgment.

3. The Court has heard Sri Rajeiu
Kumar Tripathi, learned counsel appearing
for the petitioner. Sri S.C. Sitapuri, learned
counsel who has filed his vakalatnama on
behalf of the private respondent nos. 2 and
4 in the petition bearing No. 96 (A-227) of
2024 which is taken on record. Sri Piyush
Asthana, learned counsel appearing for
respondent no. 1 and 3, Sri Pawan Kumar
Mishra, learned counsel for the respondent
nos. 5 and 6.
3 All. Narmal Prasad Mishra & Anr. Vs. Mukut Bihari & Ors.
1435

4. The learned counsel for the private
respondents submitted that they do not
wish to file any counter affidavit as only a
question of law is involved, hence, with the
consent of learned counsel for the parties,
the Court has heard the matter and it is
being decided at the admission stage itself.

5. For the sake of convenience, the
Court has lifted the facts from the Petition
No. 96 (A-227) of 2024 and shall refer to
the parties as impleaded in the instant
petitions.

6. In order to appreciate the
controversy involved in the instant four
petitions, it will be appropriate to delineate
the facts giving rise to the instant petitions.

7. That the petitioners before this
Court, were the plaintiffs in Regular Suit
No. 1146 of 2018 while the private
respondents were the defendants. The
petitioners filed a suit as aforesaid, seeking
a decree of cancellation of sale deed dated
16.09.1982 and injunction. The sale deed
was executed by Ram Pyare in favour of
the private respondents
and it
was
impugned on the ground that Ram Pyare
was the grand-father (maternal) of the
petitioners who bequeathed the property to
the petitioners by means of his will dated
10.09.1982.

8. It is only at a later stage that when
the defendants of the suit attempted to get
their names mutated in the revenue records
on the basis of the alleged sale deed dated
06.09.1982 that the petitioners became
aware of the sale deed and thus filed the
said suit. The suit proceeded ex-parte
against the defendants and it was finally
decided ex-parte on 13.09.1982.

9. The ex-parte judgment an decree
dated 13.09.1982 was assailed by the
defendants of the suit by filing application
under Order 9 Rule 13 C.P.C.in two sets;
(i) one set of the defendants namely Mukut
Bihar, Arvind Kumar Tripathi, Anand
Prakash Tripathi and Akhilesh Tripathi
filed an application under Order 9 Rule 13
C.P.C. along with an application under
Section 5 of the Limitation Act. This was
registered as miscellaneous Case no. 289 of
2023. The other set of defendants namely
Asha Devi and Anita Devi filed a separate
application under Order 9 Rule 13 C.P.C.
along with an application under Section 5
of the Limitation Act which was registered
as Misc. Case No. 305 of 2023.

10. In both the aforesaid two cases,
notices were issued to the plaintiffs (the
petitioners herein). Both the Misc. Cases
namely Case No. 289 of 2023 and 305 of
2023 were heard together and the Trial
court by means of order dated 26.10.2023
found that the application filed by the
defendants in two sets were within time in
terms of Article 123 of the Schedule
appended with the Limitation Act of 1963
and consequently it rejected the application
under Section 5 of the Limitation Act for
the aforesaid reasons.

11. The petitioners herein moved an
application in both the misc. cases as
aforesaid and sought the dismissal of the
application under Order 9 Rule 13 C.P.C.
on the ground that as Section 5 of the
Limitation Act, 1963 applications have
been rejected so also the petitions under
Order 9 Rule 13 C.P.C. ought to have been
rejected consequently.

12. These two applications were
rejected by the Trial Court on 31.10.2023
and the Trial Court thereafter fixed
1436 INDIAN LAW REPORTS ALLAHABAD SERIES
07.11.2023 for orders on the application
under Order 9 Rule 13 and accordingly on
07.11.2023, the applications under Order 9
Rule 13 C.P.C. were allowed holding that
the defendants of the suit did not have
adequate notice and they were prevented by
sufficient
cause
from
contesting
the
proceedings and since the nature of the exparte decree dated 13.09.2022 was joint
and several, hence, setting aside of the
decree in respect of one set of defendants
would entail the setting aside of the decree
as a whole enuring to the benefit of the
other set of defendants, too.

13. The petitioners being aggrieved
preferred four Civil Revisions before the
District Judge, Bahraich assailing the order
dated 31.10.2023 and the order dated
07.11.2023. Both orders were challenged in
both the sets of cases and as such this
resulted in four civil revisions bearing No.
66 of 2023, 67 of 2023 which arose from
Misc. Case No. 289 of 2023 whereas the
Civil Revision No. 68 of 2023 and 69 of
2023 are the cases arising out of Misc. Case
No. 305 of 2023.

14. The Revisional Court did not find
favour with the submissions advanced by
the revisionist and consequently all four
revisions as aforesaid were dismissed
upholding the order passed by the Trial
Court. As a consequence, the petitioners
have preferred these four petitions under
Article 227 of the Constitution of India and
the order dated 31.10.2023 and 07.11.2023
arising out of Civil Revision Nos.66 of
2023 and 67 of 2023 have given rise to the
two petitions bearing Nos. 96 (A-227) of
2024 and 347 (A-227) of 2024. Similarly,
the order dated 31.10.2023 and 07.11.2023
passed in Civil Revision No. 68 of 2023
and 69 of 2023 relating to Misc. Case no.
305 of 2023 has given rise to a petition
under Article 227 of the Constitution of
India bearing No. 91 (A-227) of 2024 and
342 (A-227) of 2024.

15. It is in the aforesaid backdrop that
all the four petitions were connected and
heard together. In the aforesaid four
petitions, the order dated 31.10.2023 and
07.11.2023
has
been
challenged
on
common grounds.

16. Sri Rajeiu Tripathi, learned
counsel for the petitioners while assailing
the orders in all the petitions has primarily
raised two questions for consideration of
this Court:-

(I) It is urged that once an
application
under
Section
5
of
the
Limitation Act of 1963 was rejected by the
Trial Court on 26.10.2023, it was only
obvious that the petition under Order 9
Rule 13 C.P.C. ought to have been rejected
consequently.

17. It is urged that the petitioners have
moved an application on 31.10.2023
requiring the Trial Court to consider this
aspect and since the application under
Section 5 of the Limitation Act already
stood rejected, the petitions under Order 9
Rule 13 C.P.C. ought to have been
dismissed but the Trial Court without
affording any opportunity of hearing on the
same date itself i.e. 31.10.2023 rejected the
said applications moved by the petitioners
and thereafter the order dated 07.11.2023
allowing the petitions under Order 9 Rule
13 was passed and the petitioners were not
even aware of the order dated 31.10.2023
which came to the notice of the petitioners
only when the order dated 07.11.2023 was
passed.
3 All. Narmal Prasad Mishra & Anr. Vs. Mukut Bihari & Ors.
1437

18. In the aforesaid circumstances, the
petitioners have been prevented from
agitating their cause appropriately before
the Trial Court and this aspect of the matter
has also not been appropriately dealt with
by the Revisional Court resulting in sheer
miscarriage of justice;

(II) The other limb of submission of
learned counsel for the petitioners is that
the two courts have not considered the
provisions of law applicable to the instant
case in the correct perspective.

19. The contention is that in terms of
Section 27 C.P.C. summons have to be
issued to the defendants in a suit and in the
instant case, the service report indicated
that despite the summons having been sent
to the correct address of the defendant, they
evaded the service. In the aforesaid
backdrop, the Trial Court had also sent
summons by registered post which also did
not return, as a result, a presumption in
terms of Order 5 Rule 19-A C.P.C. was
available to the court. The Trial Court
being
cautious
also
permitted
the
petitioners (the plaintiffs before the Trial
Court) to get the defendants served through
substituted service in terms of Order 5 Rule
20 C.P.C.

20. It is submitted that Order 5 Rule
20 C.P.C. was amended by the amending
Act No. 104 of 1976 which came into
effect from 01.02.1977. It is further
submitted that sub Rule 2 of Order 5 Rule
20 C.P.C. clearly provides that substituted
service shall be as effectual as if it had been
made on the defendant personally and in
this view of the matter the service upon the
defendants would be effectual as personal
service, consequently, while moving an
application under Order 9 Rule 13 C.P.C.,
it was incumbent upon the defendants to
have moved the application under Section 5
of the Limitation Act (which was actually
done by the defendants) but the Trial Court
as well as the Revisional Court failed to
appreciate the provisions of Article 123
appended to the Limitation Act, 1963and
by wrongly applying the principle as
provided in the Explanation appended to
Article 123 in the schedule appended to the
Limitation Act, the Trial Court and the
Revisional Court treated the application
under Order 9 Rule 13 C.P.C. to be within
time from the date of knowledge.

21. Taking his submissions forward,
Sri Tripathi urged that Article 123 clearly
provides a period of limitation of 30 days
for moving an application under Order 9
Rule 13 C.P.C. and it has been emphasized
that the time from which the period begins
to run is to be reckoned from the date of the
decree as in the instant case the summons
were duly served on the defendants.

22. It is urged that only when the
summons are not duly served then the
period of limitation of 30 days is to be
reckoned from the date when the person
moving the application under Order 9 Rule
13 C.P.C. gets knowledge of the decree.

23. It is further urged that there is an
apparent discrepancy in Order 5 Rule 20
(2) C.P.C. and the explanation appended to
Article 123 in the scheduled appended with
the Limitation Act, 1963.

24. Sri Tripathi has urged that the
explanation appended to Article 123 states
that substituted service in terms of Order 5
Rule 20 C.P.C. shall not be deemed to be
due service. It is stated that the Trial Court
and the Revisional Court has granted the
benefit of this explanation to the defendants
and has treated the application under Order
1438 INDIAN LAW REPORTS ALLAHABAD SERIES
9 Rule 13 C.P.C. to be within the period of
30 days granting the benefits to the
defendants of the time for commencement
of limitation from the date of knowledge of
the decree.

25. It is urged that once it is provided
in Order 5 Rule 20 (2) C.P.C. that the
service through substituted mode shall be
as
effectual
as
having
been
made
personally then the summons served
through publication would amount to
sufficient personal service and in the
aforesaid circumstances, the time period
will have to be reckoned from the date of
the decree and not from the date of the
knowledge
and
in
the
aforesaid
circumstances
where
admittedly
the
application under Order 9 Rule 13 C.P.C.
was filed in the month of July, 2023
whereas the ex-parte decree was dated
13.09.2022, hence, the two courts ought to
have considered the ground shown in the
said application and Section 5 of the
Limitation Act, 1963 whether it constituted
sufficient cause but the two courts have
grossly erred in holding that the application
under Order 9 Rule 13 C.P.C. was within
time and for the said reason, the application
under Section 5 of the Limitation Act, 1963
filed by the private respondents in two
separate
miscellaneous
cases
were
incorrectly decided vide order dated
26.10.2023 which was patently erroneous.

26. It is urged that for the very same
reason, the application dated 31.10.2023 by
which the petitioners prayed that the
application under 9 Rule 13 C.P.C. be
rejected was erroneously dismissed and as
a consequence the order dated 07.11.2023
by which the Trial Court allowed the
application under Order 9 Rule 13 C.P.C. is
also bad, thus, the petitions deserve to be
allowed.

27. The learned counsel for the
petitioners in support of his submissions
has relied upon the decision of the Apex
Court in S. Sundaram Pillai and Others
Vs. V.R. Pattabariman and Others; 1985
(1) SCC 591 to explain that what is the
ambit of an explanation or a proviso which
is appended to a statutory provision.

28. Relying upon the aforesaid
decision, it is urged that the proviso is
meant to be an exception to something
within the main enactment or it is to qualify
something enacted therein, however, as far
as an explanation is concerned, it is
intended to explain the meaning of the
provision and when there is obscurity or
vagueness in the provision, the explanation
is meant to clarify the same to make it
consistent with the dominant object which
it seems to subserve and it is meant to
provide additional support to the dominant
object of the provision.

29. It is further urged that the
explanation is to be interpreted in a manner
that it should support the main provision
but nevertheless it cannot have a purpose of
taking away a statutory right with which
any person under the Statute has been
provided with some benefit nor it can set to
naught the working of the provision by
becoming a hindrance.

30. It is further submitted by Sri
Tripathi that the manner in which the Trial
Court and the Revisional Court have passed
the order dated 26.10.2023 rejecting the
application
under
Section
5
of
the
Limitation Act, 1963 holding that the
application under Order 9 Rule 13 was
within time from the date of knowledge of
the decree, it has incorrectly applied the
explanation to Article 123 and by doing so
it has rendered the provisions of Order 5
3 All. Narmal Prasad Mishra & Anr. Vs. Mukut Bihari & Ors.
1439
Rule-20 (2) C.P.C. redundant which could
not have been done. Accordingly, the
petition deserves to be allowed after setting
aside the impugned orders.

31. On behalf of the private
respondents, Sri Piyush Asthana and Sri
Pawan Mishra, learned counsel have
responded to the submissions of the learned
counsel for the petitioners and it has been
pointed out that the instant petitions are
bad, inasmuch as, the petitioners have not
assailed the order dated 26.10.2023 by
which the application under Section 5 of
the Limitation Act, 1963, though rejected,
but in effect the Trial Court had held that
the application under Order 9 Rule 13
C.P.C. was within time and therefore there
was no requirement to move the application
under Section 5 of the Limitation Act,
1963. It is urged that without assailing the
order dated 26.10.2023, the arguments of
the petitioners pales into insignificance as
the primary order has not been assailed.

32. It is further urged by the learned
counsel for the private respondents that
admittedly in so far as Smt. Asha Devi and
Anita Devi are concerned, there was a clear
averment that they were not residing at the
given address since the daughter of Asha
Devi was residing in Surkhet, Nepal and
Asha Devi was also residing with her
daughter, hence, neither the summons sent
through registered post were served nor the
publication made in the Hindi Daily Jan
Morcha could be treated as due service as it
had no circulation worth its name in
Surkhet, Nepal.

33. It is further urged that once there
was ample material available on record of
the Trial Court especially the endorsement
on the registered cover that Asha Devi was
residing
in
Surkhet,
Nepal,
it
was
incumbent
upon
the
plaintiffs
(the
petitioners herein) to have got the summons
served to the petitioners at their address in
Surkhet,
Nepal.
In
the
aforesaid
circumstances, without doing so, the
application for getting the defendants
served through publication
was
also
improper
but
nevertheless
even
the
newspaper summons could not be treated to
be duly served as the newspaper namely
Jan Morcha was not having adequate
circulation and this was contrary to Order 5
Rule 20-A C.P.C.

34. It is submitted that in the aforesaid
circumstances, where the petitioners have
not assailed the order dated 26.10.2023 and
the Trial Court by the said order had
categorically held that for the purposes of
the disposal of the application under
Section 5 of the Limitation Act, there was
no due service on the defendants of the
second set namely Asha Devi and Anita
Devi, hence, the application under Order 9
Rule 13 C.P.C. was within time as it has
been moved within 30 days from the date
of knowledge of the decree.

35. It is submitted that the reasoning
given by the Trial Court is based on sound
principles
of
law
and
requires
no
interference. The petitioners have erred in
moving the application which came to be
rejected on 31.10.2023 as once it was held
by the Trial Court that the application
under Order 9 Rule 13 C.P.C. was within
time. However, merely because the Trial
Court held in its order that the application
under Section 5 of the Limitation Act is
rejected, it did not mean that the
application under Order 9 Rule 13 C.P.C.
would be rejected automatically as the
reason was that the application under
Section 5 of the Limitation Act, 1963 was
actually not required since the Application
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
under Order 9 Rule 13 C.P.C. was within
time.

36. It would have been a different
scenario altogether if the application under
Section 5 of the Limitation Act moved by
the defendants would have been rejected on
the merits holding that the defendants were
unable to justify the delay and could not
establish a sufficient cause then perhaps the
contention of the learned counsel for the
petitioner could be appreciated that as a
consequence the application under Order 9
Rule 13 C.P.C. be dismissed.

37. It is urged that in the instant case,
the Trial Court found that since the
application under Order 9 Rule 13 C.P.C.
was within time from the date of
knowledge,
hence,
there
was
no
requirement to move an application under
Section 5 of the Limitation Act, hence, it
was rejected. The necessary consequence
was that the application under Order 9 Rule
13 C.P.C. was to be heard and decided
substantively and this was done by the Trial
Court and it allowed the application under
Order 9 Rule 13 C.P.C. holding that the
defendants were prevented by sufficient
cause from contesting the suit and thus the
order dated 07.11.2023 does not suffer
from any error which may require any
interference by this Court.

38. It is further urged that the
Revisional Court also noticed the aforesaid
aspect and consequently the revision filed
by the petitioners were dismissed, hence,
the instant petition is bad and does not
deserve admission rather is to be dismissed
outright especially when the matter is yet to
be decided on merits and once the courts
have exercised their discretion in a positive
manner, it would not be expedient for the
Revisional Court or this Court to interfere
in such kind of orders especially when the
parties have been given an opportunity to
contest the proceedings on merits and the
Constitutional Courts also lean in favour of
such orders by which the parties are
granted the benefit of hearing rather the
shutting out hearing on the ground of
technicalities such as raised by the
petitioners in the instant case. For the
aforesaid reasons, the petitions deserve to
be dismissed.

39. Sri S.C. Sitapuri, learned counsel
has also adopted the aforesaid submissions
advanced by Sri Piyush Asthana and Sri
Pawan Mishra, learned counsel for the
private respondents.

40. The Court has heard the learned
counsel for the parties and also perused the
material on record.

41. In so far as the facts involved in
the instant petitions are concerned, there is
not much dispute between the parties. It is
also not disputed by the learned counsel for
the petitioners that they have not assailed
the order dated 26.10.2023 in the instant
batch of four petitions.

42. The record would further indicate
that even though the issue regarding no
challenge to the order dated 26.10.2023
was raised by the private respondents on
the first date itself but no effort was made
by the petitioner to raise any challenge to
the said order by moving an application or
to amend the relief clause.

43. It is in the aforesaid backdrop that
the courts has considered the submissions
made by the parties.

44. At the outset, it will be relevant to
notice the relevant provisions of law which
3 All. Narmal Prasad Mishra & Anr. Vs. Mukut Bihari & Ors.
1441
have an interplay and impact on the instant
petitions and for better appreciation, this
Court reproduces Section 27 C.P.C. Order
5 Rule-17, Rule, Rule 20 C.P.C. and
Article 123 of the schedule appended to the
Limitation Act, 1963.

"27. Summons to defendants.-
Where a suit has been duly instituted, a
summons may be issued to the defendant to
appear and answer the claim and may be
served in manner prescribed[on such day
not beyond thirty days from the date of the
institution of the suit].
******------*****------****

Order 5 Rule 17-

Procedure
when
defendant
refuses to accept service, or cannot be
found.-Where the defendant or his agent
or such other person as aforesaid refuses to
sign the acknowledgment, or where the
serving officer, after using all due and
reasonable diligence, cannot find the
defendant[who is absent from his residence
at the time when service is sought to be
effected on him at his residence and there
is no likelihood of his being found at the
residence within a reasonable time] and
there is no agent empowered to accept
service of the summons on his behalf, nor
any other person on whom service can be
made, the serving officer shall affix a copy
of the summons on the outer door or some
other conspicuous part of the house in
which the defendant ordinarily resides or
carries on business or personally works for
gain, and shall then return the original to
the Court from which it was issued, with a
report endorsed thereon or annexed thereto
stating that he has so affixed the copy, the
circumstances under which he did so, and
the name and address of the person (if any)
by whom the house was identified and in
whose presence the copy was affixed.
******------*****------****

20.
Substituted
service.-(1)
Where the Court is satisfied that there is
reason to believe that the defendant is
keeping out of the way for the purpose of
avoiding service, or that for any other
reason the summons cannot be served in
the ordinary way, the Court shall order the
summons to be served by affixing a copy
thereof in some conspicuous place in the
Court-house,
and
also
upon
some
conspicuous part of the house (if any) in
which the defendant is known to have last
resided
or
carried
on
business
or
personally worked for gain, or in such
other manner as the Court thinks fit.

[(1A) Where the Court acting
under sub-rule (1) orders service by an
advertisement in a newspaper,

the newspaper shall be a daily
newspaper circulating in the locality in
which the defendant is last known to have
actually and voluntarily resided, carried on
business or personally worked for gain.]

(2) Effect of substituted service.-
Service substituted by order of the Court
shall be as effectual as if it had been made
on the defendant personally.

(3) Where service substituted,
time for appearance to be fixed.-Where
service is substituted by

order of the Court, the Court
shall fix such time for the appearance of
the defendant as the case may require."
******------*****------****

Article 123 Limitation Act, 1963

123.To set aside a
decree
passed
ex
parte or to rehear an
appeal decreed or
heard ex parte.

Thirty days
The date of the
decree or where
the summons or
notice was not duly
served, when the
applicant
had
knowledge of the
decree.
1442 INDIAN LAW REPORTS ALLAHABAD SERIES
Explanation.-For
the purpose of this
article,
substituted
service under Rule 20
of
Order
V
of
theCode
of
Civil
Procedure, 1908 (5 of
1908)shall
not
be
deemed to be due
service.

45. From the perusal of the aforesaid
provisions of law, it would be clear that
whenever a suit is filed in a court of law
which is governed by the Code of Civil
Procedure, 1908, summons have to be
issued to the defendants. The summons are
served through the process server and as far
as possible the summons are to be served
on to parties to the suit, in case if the
person upon whom the service is to be
affected is not available then there is an
option of affixation of the summons as
provided under Order 5 Rule 17 C.P.C.
Similarly, where the court finds expedient,
it can also get the summons served on the
defendants through registered post.

46. In terms of Section 27 of the
General Clauses Act, if a registered cover
is sent to the person at his correct address
and the requisite time having elapsed and
the registered cover does not return back to
the court or returns to the court with the
endorsement such as refusal then in such
circumstances, the service shall be deemed
to have been affected. In this regard, the
decision of the Apex Court in Ajeet Seeds
Limited Vs. K. Gopala Krishnaiah; (2014)
12 SCC 685 is relevant and the relevant
portion of the said report is being
reproduced hereinafter:-

"9.This Court then explained the
nature of presumptions under Section 114
of the Evidence Act and under Section 27 of
the GC Act and pointed out how these two
presumptions are to be employed while
considering the question of service of
notice under Section 138 of the NI Act. The
relevant paragraphs read as under: (C.C.
Alavi Haji case[C.C. Alavi Hajiv.Palapetty
Muhammed, (2007) 6 SCC 555 : (2007) 3
SCC (Cri) 236] , SCC pp. 563-64, paras
13-14)

"13. According to Section 114 of
the
Act,
read
with
Illustration
(f)
thereunder, when it appears to the court
that the common course of business renders
it probable that a thing would happen, the
court may draw presumption that the thing
would have happened, unless there are
circumstances in a particular case to show
that the common course of business was not
followed. Thus, Section 114 enables the
court to presume the existence of any fact
which it thinks likely to have happened,
regard being had to the common course of
natural events, human conduct and public
and private business in their relation to the
facts of the particular case. Consequently,
the court can presume that the common
course of business has been followed in
particular
cases.
When
applied
to
communications sent by post, Section 114
enables the court to presume that in the
common course of natural events, the
communication would have been delivered
at the address of the addressee. But the
presumption that is raised under Section 27
of the GC Act is a far stronger
presumption. Further, while Section 114 of
the Evidence Act refers to a general
presumption, Section 27 refers to a specific
presumption. For the sake of ready
reference, Section 27 of the GC Act is
extracted below:

'27.Meaning
of
service
by
post.-Where
any
Central
Act
or
Regulation made after the commencement
3 All. Narmal Prasad Mishra & Anr. Vs. Mukut Bihari & Ors.
1443
of this Act authorises or requires any
document to be served by post, whether the
expression "serve" or either of the
expression "give" or "send" or any other
expression is used, then, unless a different
intention appears, the service shall be
deemed
to
be
effected
by
properly
addressing, pre-paying and posting by
registered post, a letter containing the
document, and, unless the contrary is
proved, to have been effected at the time at
which the letter would be delivered in the
ordinary course of post.'

14. Section 27 gives rise to a
presumption that service of notice has been
effected when it is sent to the correct
address by registered post. In view of the
said presumption, when stating that a
notice has been sent by registered post to
the address of the drawer, it is unnecessary
to further aver in the complaint that in spite
of the return of the notice unserved, it is
deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice
is deemed to have been effected at the time
at which the letter would have been
delivered in the ordinary course of
business. This Court has already held that
when a notice is sent by registered post and
is returned with a postal endorsement
'refused' or 'not available in the house' or
'house locked' or 'shop closed' or
'addressee not in station', due service has
to
be
presumed.
(VideJagdish
Singhv.Natthu Singh[(1992) 1 SCC 647]
,State of M.P.v.Hiralal[(1996) 7 SCC 523]
andV.
Raja
Kumariv.P.
Subbarama
Naidu[(2004) 8 SCC 774 : 2005 SCC (Cri)
393] .) It is, therefore, manifest that in view
of the presumption available under Section
27 of the Act, it is not necessary to aver in
the complaint under Section 138 of the Act
that service of notice was evaded by the
accused or that the accused had a role to
play in the return of the notice unserved."

10.It is thus clear that Section
114 of the Evidence Act enables the Court
to presume that in the common course of
natural events, the communication would
have been delivered at the address of the
addressee. Section 27 of the GC Act gives
rise to a presumption that service of notice
has been effected when it is sent to the
correct address by registered post. It is not
necessary to aver in the complaint that in
spite of the return of the notice unserved, it
is deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice
is deemed to have been effected at the time
at which the letter would have been
delivered in the ordinary course of
business.

Similarly, the Apex Court in
Vishwabandhu
Vs.
Sri
Krishna
And
Another; (2021) SCC 549 in paragraph 15
has observed as under:-

"15.The
summons
issued
by
registered post were received back with
postal endorsement of refusal, as would be
clear from the order dated 19-2-1997. Subrule (5) of Order 5 Rule 9 of the Code
states inter alia that if the defendant or his
agent had refused to take delivery of the
postal article containing the summons, the
court issuing the summons shall declare
that the summons had been duly served on
the defendant. The order dated 19-2-1997
was thus completely in conformity with the
legal requirements. In a slightly different
context, while considering the effect of
Section 27 of the General Clauses Act,
1897, a Bench of three Judges of this Court
inC.C.
Alavi
Hajiv.Palapetty
Muhammed[C.C.
Alavi
Hajiv.Palapetty
Muhammed, (2007) 6 SCC 555 : (2007) 3
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC (Cri) 236] made the following
observations : (SCC p. 564, para 14)

"14. Section 27 gives rise to a
presumption that service of notice has been
effected when it is sent to the correct
address by registered post. In view of the
said presumption, when stating that a
notice has been sent by registered post to
the address of the drawer, it is unnecessary
to further aver in the complaint that in spite
of the return of the notice unserved, it is
deemed to have been served or that the
addressee is deemed to have knowledge of
the notice. Unless and until the contrary is
proved by the addressee, service of notice
is deemed to have been effected at the time
at which the letter would have been
delivered in the ordinary course of
business. This Court has already held that
when a notice is sent by registered post and
is returned with a postal endorsement
"refused" or "not available in the house"
or "house locked" or "shop closed" or
"addressee not in station", due service has
to
be
presumed.
(VideJagdish
Singhv.Natthu
Singh[Jagdish
Singhv.Natthu Singh, (1992) 1 SCC 647]
;State
of
M.P.v.Hiralal[State
of
M.P.v.Hiralal, (1996) 7 SCC 523] andV.
Raja Kumariv.P. Subbarama Naidu[V.
Raja Kumariv.P. Subbarama Naidu, (2004)
8 SCC 774 : 2005 SCC (Cri) 393] .)"

47. There may be cases where for
certain reasons, the defendant cannot be
served and in such circumstances the court
may take recourse to get the defendants
served by substituted service i.e. through
publication for which the court has to take
recourse to Order 5 Rule 20 C.P.C.

48. In order to permit the service
through substituted mode, the court is
required to form a subjective satisfaction
and it has reason to believe that the
defendant is keeping out of the way for the
purpose of avoiding service or that the
summons cannot be served in the ordinary
course then the court can order the
summons
to
be
affixed
in
some
conspicuous place in the court house or
upon some conspicuous place where the
defendant is known to have last resided or
carried on business or personally worked
for gains.

49. Rule 1-A was inserted in Order 5
Rule -20 C.P.C. by the amending Act
which came into effect from 01.02.1977
which permitted the courts to get the
summoned
served
through
an
advertisement in a newspaper provided the
newspaper must be a daily newspaper
circulating in the locality in which the
defendant is last known to have actually
and voluntarily resided or carried on
business or personally worked for gains.

50. It is in the aforesaid circumstance
that a publication can be made and Sub
Rule 2 of Order 5 Rule 20 C.P.C. saves
such service and it would be treated as
effectual as if the defendant was personally
served.

51.