# Rakesh Kumar Jain v. Zulfikar Ali

- **Citation:** (2024) 1 ILRA 467
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-22
- **Case number:** First Appeal From Order No. 172 of 2022
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-jain-v-zulfikar-ali-50925
- **Pages:** 11

## Headnote

Sri Pravindra Singh, Sri Ashish Singh, Sri
Devendra Singh, Sri Jitendra Shanker Pandey,
Sri Mohd. Akbar Shah Alam Khan, Ms. Neha
Khan, Sri Pravidnra Singh, Sri Satya Dheer Singh
Jadaun, Sri Virednra Singh

A. Criminal Law - Indian Penal Code,1860
- Section 151 - Restoration Application
Allowed - The appellant challenged the order
dated 10.12.2021 rejecting the restoration
application under Order 9 Rule 13 read with
Section 151 CPC against the ex-parte decree
dated 13.11.2009 in Original Suit No. 684 of
2008 - Held, the trial court erred in dismissing
the restoration application, and the ex-parte
decree was quashed, with the suit restored for
fresh adjudication. (Paras 2, 20, 21)

B. Order 5 CPC - Insufficient Service of
Notice - The trial court relied on the Court
Amin's report dated 22.07.2008 to deem service
sufficient, citing refusal by the appellant's wife -
Held, the service was invalid due to noncompliance with Order 5 Rules 12, 15, 17, and
19 CPC, as the Process Server failed to exercise
"due and reasonable diligence" to locate the
appellant or confirm his unavailability. (Paras 6,
7, 9, 10, 13, 14)

C. Condonation of Delay - Section 5 of
Limitation Act - The trial court rejected the
restoration application for lack of a formal delay
condonation application - Held, as per Sesh
Nath
Singh
Vs
Baidhyabati
Sheoraphuli
Cooperative Bank Ltd., a separate formal
application under Section 5 is not mandatory if
sufficient cause is shown, and the delay was
condoned based on the appellant's bona fide
conduct and date of knowledge (09.09.2011).
(Paras 15, 20)

D. Substantial Justice Over Technicalities
- The court emphasized that technicalities
should not obstruct substantial justice - Held,
468 INDIAN LAW REPORTS ALLAHABAD SERIES
relying on Jai Jai Ram Manohar Lal Vs National
Building
Material
Supply
and
Bhivchandra
Shankar More Vs Balu Gangaram More, the
restoration application was allowed to ensure
the appellant's right to a fair hearing, as the exparte decree deprived him of property rights.
(Paras 17, 18, 20)

E. Direction for Expeditious Disposal - The
court directed the trial court to decide the
restored suit (Original Suit No. 684 of 2008)
within 12 months from the parties' appearance,
with the appellant to file a written St.ment by
22.01.2024
-
Held,
this
ensured
timely
adjudication to prevent further prejudice. (Paras
22, 23)

Appeal Allowed.

List of Cases cited:

## Text

1 All. Rakesh Kumar Jain Vs. Zulfikar Ali
467
information was required to be made on an
affidavit prescribed then such an affidavit
which has also been referred to in the
schedule ought to have been filed
alongwith election petition.

76. In view of above and having
discussed various authorities on the point
and since I have held that election
petition not only lacks concise statement
of material facts but has failed to setforth material particulars which are
mandatorily required under Section 83
(1)(a),(b)
and
both
the
documents,
namely nomination form and affidavit
mentioned in the scheduled appended to
the election petition being an integral part
of it and yet having not been filed, the
instant
election
petition
deserves
rejection under Section 86(1) of the R.P.
Act, 1951. Further averments being vague
and confusing in totality in various
paragraphs, petition also fails to disclose
cause of action as such to maintain it.
Accordingly, miscellaneous application
filed under Section 86(1) of the R.P. Act,
1951 being no. 7 of 2022 moved by the
returned candidate and miscellaneous
application being no. 4 of 2022 filed under
Order VII Rule 11(a) of the CPC are hereby
allowed.

77. Election petition is dismissed.

78. Parties to bear their own cost.
----------
(2024) 1 ILRA 467
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2023

BEFORE

THE HON'BLE DINESH PATHAK, J.

First Appeal From Order No. 172 of 2022
Rakesh Kumar Jain ...Appellant
Versus
Zulfikar Ali ...Respondent

Counsel for the Appellant:
Sri Ishir Sripat, Sri Devendra Singh, Sri Rahul
Sripat (Sr. Advocate)

Counsel for the Respondents:
Sri Pravindra Singh, Sri Ashish Singh, Sri
Devendra Singh, Sri Jitendra Shanker Pandey,
Sri Mohd. Akbar Shah Alam Khan, Ms. Neha
Khan, Sri Pravidnra Singh, Sri Satya Dheer Singh
Jadaun, Sri Virednra Singh

A. Criminal Law - Indian Penal Code,1860
- Section 151 - Restoration Application
Allowed - The appellant challenged the order
dated 10.12.2021 rejecting the restoration
application under Order 9 Rule 13 read with
Section 151 CPC against the ex-parte decree
dated 13.11.2009 in Original Suit No. 684 of
2008 - Held, the trial court erred in dismissing
the restoration application, and the ex-parte
decree was quashed, with the suit restored for
fresh adjudication. (Paras 2, 20, 21)

B. Order 5 CPC - Insufficient Service of
Notice - The trial court relied on the Court
Amin's report dated 22.07.2008 to deem service
sufficient, citing refusal by the appellant's wife -
Held, the service was invalid due to noncompliance with Order 5 Rules 12, 15, 17, and
19 CPC, as the Process Server failed to exercise
"due and reasonable diligence" to locate the
appellant or confirm his unavailability. (Paras 6,
7, 9, 10, 13, 14)

C. Condonation of Delay - Section 5 of
Limitation Act - The trial court rejected the
restoration application for lack of a formal delay
condonation application - Held, as per Sesh
Nath
Singh
Vs
Baidhyabati
Sheoraphuli
Cooperative Bank Ltd., a separate formal
application under Section 5 is not mandatory if
sufficient cause is shown, and the delay was
condoned based on the appellant's bona fide
conduct and date of knowledge (09.09.2011).
(Paras 15, 20)

D. Substantial Justice Over Technicalities
- The court emphasized that technicalities
should not obstruct substantial justice - Held,
468 INDIAN LAW REPORTS ALLAHABAD SERIES
relying on Jai Jai Ram Manohar Lal Vs National
Building
Material
Supply
and
Bhivchandra
Shankar More Vs Balu Gangaram More, the
restoration application was allowed to ensure
the appellant's right to a fair hearing, as the exparte decree deprived him of property rights.
(Paras 17, 18, 20)

E. Direction for Expeditious Disposal - The
court directed the trial court to decide the
restored suit (Original Suit No. 684 of 2008)
within 12 months from the parties' appearance,
with the appellant to file a written St.ment by
22.01.2024
-
Held,
this
ensured
timely
adjudication to prevent further prejudice. (Paras
22, 23)

Appeal Allowed.

List of Cases cited:

1. Sesh Nath Singh Vs Baidhyabati Sheoraphuli
Cooperative Bank Ltd., AIRONLINE 2021 SC 161

2. Sneh Gupta Vs Devi Sarup, (2009) 6 SCC 194

3. Abdul Salam Rowther Vs St. Bank of India,
MANU/TN/0487/1993

4. Mrs. Emkamma Bai Vs Ravikumar, (1992) 1
LW 54

5.
Kuttiappa
Vs
Rangasami,
MANU/TN/0456/1992, (1992) 2 MLJ 362

6. Jai Jai Ram Manohar Lal Vs National Building
Material Supply, AIR 1969 SC 1267

7. Ghanshyam Dass Vs Dominion of India,
(1984) 3 SCC 46

8. Bhivchandra Shankar More Vs Balu Gangaram
More, (2019) 6 SCC 387

9. N. Balakrishnan Vs M. Krishnamurthy, (1998)
7 SCC 123

(Delivered by Hon'ble Hon'ble Dinesh
Pathak, J.)

1. Heard Sri Rahul Sripat, learned
Senior Advocate assisted by Sri Ishir
Sripat, learned counsel for the appellant
and Sri Virendra Singh, Ms. Neha Khan
and Sri Jitendra Shanker Pandey, learned
counsel for the sole respondent and perused
the record.

2. The appellant has preferred instant
First Appeal From Order assailing the order
dated 10.12.2021 passed by Additional
District and Sessions Judge, Court No. 3,
Muzaffar Nagar rejecting the restoration
application moved by him under Order 9
Rule 13 read with 151 C.P.C., registered as
Misc. Case No.17 of 2011, against the exparte
judgment
and
decree
dated
13.11.2009 passed by Additional District
Judge, Court No. 5, Muzaffar Nagar in
Original Suit No. 684 of 2008 (Zulfkar Ali
Vs. Rakesh Kumar Jain).

3. Facts culled out from the record are
that Zulfkar Ali (plaintiff-respondent) has
filed suit dated 14.7.2008 for permanent
prohibitory
injunction
against
the
defendant-appellant to restrain him not to
interfere in the peaceful possession of the
plaintiff over the property in question
shown by letters ABC at the foot of the
plaint and also not to dismantle the
construction exists over there. The plaintiff
came with the case that to secure the
money borrowed from the defendantappellant, document of understanding has
been executed on 17.1.1994. At later stage,
the plaintiff returned all the money as
borrowed from the defendant-appellant,
however, now the defendant is trying to
dispossess the plaintiff from the property in
question. During pendency of the suit, the
plaintiff
has
moved
an
amendment
application
dated
23.3.2009
seeking
additional relief of cancellation of the
registered sale deed dated 2.2.1994 and to
declare it as null and void. Aforesaid
amendment application was allowed on
1 All. Rakesh Kumar Jain Vs. Zulfikar Ali
469
8.4.2009. Suit was proceeded ex-parte, vide
order
dated
11.12.2008,
against
the
defendant-appellant. In the meantime, case
was transferred to the Court of Additional
District Judge, Court No. 5 on 28.1.2009
and the record was received in the
transferee court on 30.1.2009. In absence
of the defendant-appellant, suit was exparte decreed by judgment and decree
dated
13.11.2009.
When
the
defendant/appellant came to know this
fact, he moved a restoration application
dated 12.09.2011, being Misc. Case
No.17 of 2011, under Order IX Rule 13
read with Section 151 C.P.C. Having
considered
the
full
knowledge
of
pendency of suit to the defendantappellant through his wife, learned trial
court, vide order under challenge dated
10.12.2021, has dismissed the restoration
application.

4.

Learned
counsel
for
the
defendant-appellant submits that initially
delay was condoned vide order dated
12.09.2011, however, observation with
regard to delay condonation was quashed
by order dated 08.12.2011 passed by this
Court and parties were relegated before
the trial court to decide the delay
condonation matter afresh. Learned trial
court has illegally declined to condone
the delay for want of separate formal
application for the condonation of delay
under Section 5 of the Limitation Act and
knowledge of pendency of suit to the
defendant-appellant
through
his
wife
Shobha Jain, which has been tried to be
established illegally based on report of
Court Amin dated 22.07.2008. It is further
submitted that Court Amin has simply
completed the table work. Even otherwise,
the provisions as enunciated under Order V
Rule 17 C.P.C. has not been complied with
in its letter and spirit. Property in question,
which is a subject matter of sale deed dated
02.02.1994, has illegally been usurped by
the plaintiff-respondent by getting exparte decree passed in his favour, that
too, by way of amendment of pleading at
a very belated stage for cancellation of
sale deed dated 02.02.1994 which, in fact,
was not maintainable and to that extent
relief for cancellation of sale deed was
barred by time. It is further submitted that
even at later stage, when the case was
transferred from regular court, vide order
dated 28.01.2009, and received in the
transferre court on 30.01.2009, no fresh
notice has been issued to the parties,
particularly to the defendant, as required
under Rule 89 of General Rule Civil.
Prayer for condonation of delay has
already precisely been made in prayer
clause to the restoration application,
therefore, no separate formal application
for condonation of delay under Section 5
of the Limitation Act is required. In
support
of
his
submission,
learned
counsel for the applicant has relied upon
the judgment of the Apex Court in the
case
of
Sesh
Nath
Singh
vs.
Baidhyabati Sheoraphuli Cooperative
Bank Ltd. reported in AIRONLINE
2021 SC 161. Learned counsel for the
appellant has emphasized as well on the
observations made by the learned trial
court, while rejecting the restoration
application, with respect to title of the
parties and submits that learned trial
court has exceeded its jurisdiction by
giving an observation qua merits of the
case of plaintiff-respondent. Lastly, it is
submitted
that
the
conduct
of
the
defendant-appellant is bonafide who has
been deprived of his property owing to ex
parte decree passed against him and
restoration application has illegally been
rejected on technical grounds. Thus, instant
appeal may be allowed and the order
470 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned passed by the trial court may be
quashed being illegal and unwarranted
under the law.

5. Per contra, learned counsel for the
plaintiff-respondent has contended that the
defendant-appellant had full knowledge
about pendency of the suit which is evident
from the report submitted by the Court
Amit, wherein wife of defendant-appellant
has refused to accept the notice, therefore,
proper steps for affixing notice at the front
of house of the defendant-appellant and
obtaining signatures of two witnesses has
been completed by the Court Amin as
required under the law. It is further
contended that when the order dated
11.12.2008 has been passed for ex parte
proceeding, there was no occasion to issue
fresh notice to the defendant-appellant after
transfer
of
case,
vide
order
dated
28.01.2009, to the court of Additional
District Judge, Court No.5, Muzaffar
Nagar. It is further contended that Shobha
Jain has never appeared and not filed his
personal affidavit to corroborate the story
of defendant-appellant qua absence of
knowledge about pendency of suit. It is
next contended that learned trial court has
rightly declined to condone the delay for
want of proper application under Section 5
of the Limitation Act inasmuch as without
separate formal application with the prayer
to condone the delay, the court has no
jurisdiction to entertain the prayer of
litigant for condoning the delay. In support
of his contention, learned counsel for the
plaintiff-respondent has placed reliance
upon the case of Sneh Gupta vs. Devi
Sarup and Others reported in (2009) 6
SCC 194. Supporting the judgment passed
by the trial court, learned counsel for the
plaintiff-respondent has urged to dismiss
the instant F.A.F.O. being misconceived
and devoid on merits.

6. Having considered the rival
submissions advanced by learned counsel
for the parties and perusal of record, it is
manifested that learned trial court has
rejected the restoration application under
Order 9 Rule 13 read with Section 151
C.P.C. treating the service sufficient upon
the defendant-appellant in O.S. No.684 of
2008 on the basis of report dated
22.07.2008 (Paper No.14-C) submitted by
court Amin. Learned trial court, vide its exparte
judgement
and
decree
dated
13.11.2009, has decreed the suit (O.S.
No.684 of 2008) filed on behalf of plaintiffrespondent for the relief to declare the
registered sale deed dated 02.02.1994 to be
null and void and also for permanent
prohibitory
injunction
restraining
defendant-appellant not to interfere in the
peaceful possession and title of the plaintiff
over the property in question shown by
letters A, B and C at the foot of the plaint.
Against
ex-parte
judgement
dated
13.11.2009, at belated stage, restoration
application dated 12.09.2011 has been filed
on behalf of defendant-appellant showing
the date of knowledge to be 09.09.2011
when he went to Tehsil intending to obtain
extract of khatauni. As per case of the
defendant-appellant, he had taken a back
while saw the name of plaintiff-respondent
in khatauni pertains to the land in question,
thereafter, he has engaged a counsel and
got the record inspected on 09.09.2011. In
this backdrop of the facts, defendantappellant came with the case that his
application for restoration is well within
time
from
the
date
of
knowledge.
Therefore, under Article 123 of the
Limitation Act, his application may be
treated to be filed within prescribed period
of limitation. In rejecting the restoration
application, learned trial court has made
much emphasis on the report dated
22.07.2008 submitted by court Amin (Paper
1 All. Rakesh Kumar Jain Vs. Zulfikar Ali
471
No.14-C), which evince that Sobha Jain
wife of Rakesh Jain (defendant) was
interacted with the Court Amin and stated
that Rakesh Jain is not presently available
and went outside. She has been made
acquainted with the notice of the court and
pendency of the case, however, she refused
to receive the notice which compelled the
Process Server (Court Amin) to affix the
notice along with the other documents at
the front of the house and obtained
signature of the two witnesses at the
reverse side of the notices. Perusal of
notice (Paper No.15-C), available on
record, reveals that the Process Server has
simply made following endorsement :
"Patni Dwara Inkar - Chaspa". Below the
aforesaid endorsement there is a signature
of two witnesses namely one Chaman Lal
son of Bhola Ram Saini and Wasim Ahmad
son of Mohd. Anis. It would also be
pertinent to mention that Mr. Wasim
Ahmad and Chaman Lal have filed their
personal affidavits (Paper No.64-C and
Paper No.65-C respectively), reiterating
similar facts that on the date of visit of the
court Amin i.e. 22.07.2008, Rakesh Kumar
Jain was not available at the residence and
his wife, who had refused to receive
summons had stated that there is no
possibility of returning Rakesh Kumar Jain
till evening. Learned trial court, relying
upon the statement of witnesses of
summon, has treated the knowledge of
defendant-appellant sufficient with respect
to the pendency of the suit. Learned trial
court has further observed that affixing
notice on the front of the house is sufficient
compliance of Order 5 Rule 17 C.P.C.

7. In my considered opinion,
however, learned trial court has misread
and misinterpreted the affidavits filed by
witnesses in the light of observation made
by Court Amin at the reverse side of the
summon and provisions relating to the
service of notice as enunciated under Order
5 and Rules thereunder. Learned trial court
has utterly failed to point out contradiction
between the endorsement made by the
Court Amin and the affidavits filed by
witnesses of summon. As per endorsement
and the report submitted by Court Amin,
wife of defendant has refused to accept
notice, however, no detail has been averred
by the Court Amin that wife has stated that
no possibility returning of the defendant till
evening.
However,
witnesses
on
the
summon have emphasized the fact in their
affidavits that the wife has stated that there
is no possibility of returning Rakesh Jain
till evening. In my opinion, statement of
witnesses are not reliable in the light of the
endorsement and the report made by Court
Amin wherein there is no whisper that
defendant will not be available till evening.

8. Apart from that, mere formality of
obtaining the signature of witnesses and
affixing notice on the outer door or some
other conspicuous part of the house in
which defendant ordinarily resides are not
sufficient to complete the valid formality of
service of notice. Legislation is never
intended to avoid or bypass the personal
service upon the defendant. Order 5 Rule
12 denotes that endeavour should be made
to serve the defendant personally, unless he
has an agent empowered to accept service.
In furtherance thereto, Order 5 Rule 15
C.P.C. denotes that, where neither the
defendant is available nor his authorized
agent to be served, in that condition notice
has been directed to be served upon any
adult member of the family, whether male
or female, who is residing with defendant.
In continuation of the procedure for service
of notice, Rule 17 of Order 5 enunciates
that in the eventuality, where none of three
persons are available to receive notice viz.
472 INDIAN LAW REPORTS ALLAHABAD SERIES
defendant or his authorized agent or his
adult family member, duty has been casted
upon the Process Server to affix the
summons on the outer door of the house or
some other conspicuous part of the house in
which defendant ordinarily resides or
carries on business or personally work for
gain, and, thereafter, Process Server shall
return the original copy of the notice to the
court from which it was issued. In the given
circumstances of the present matter, Rule
15 and Rule 17 of Order 5 are relevant.
Under Rule 15 service of notice could be
effectuated on any adult member of the
family whether male or female, who is
residing
with
defendant,
under
the
following conditions:

(i) There is no likelihood of his being
found at the residence within a reasonable
time;

(ii) and he has no agent empowered to
accept the service of summon on his behalf.

9. In the eventuality of refusal made
by adult family member of the defendant to
accept notice as enunciated under Rule 15,
there is a provision affixation notice on the
conspicuous part of the house etc. under
Rule 17 in following conditions:

(i) where defendant or his agent or
such other person (family member) refuses
to sign the acknowledgement, as required
under Rule 16, or

(ii) where serving officer, after using
all due and reasonable diligence, cannot
find the defendant.

As per Rule 17, under the
following condition, defendant shall be
treated as "not found" i.e.

(i) who is absent from his residence at
the time when service is sought to be
effected on him at his residence and

(ii) there is no likelihood of his being
found at the residence within reasonable
time.

Considering
the
conditions
as
enunciated under Rule 15 and 17 of Order
5, the relevant ingredients to treat the
defendant absent for the purposes of
effective service, is that "there is no
likelihood of his being found at the
residence within reasonable time". Rule 17,
one step ahead, entrust duty upon the
Process Server that "to use all due and
reasonable diligence" intending to find out
the defendant.

10. In the instant matter, I did not find
any endeavour made by the Court Amin
(Process Server) to discharge his duty
properly as entrusted upon him under Rule
12, 15 and 17 of Order 5. A simple
statement of wife of defendant-appellant on
the first date of visit of the Process Server,
wherein wife has refused to accept the
notice and shown unavailability of her
husband (defendant), has been treated to be
sufficient by learned trial court for the
purpose of effective service of notice upon
the defendant. No discussion has been
made by learned trial court as to what "due
and
reasonable
diligence"
has
been
exercised/performed by the Process Server
(Court Amin) before affixing the notice on
the conspicuous place of the house. It is
also not made clear by the Process Server
and the learned trial court that under what
circumstances they came to conclusion that
there is no likelihood of defendant being
found at the residence within a reasonable
time. There is nothing on the record to
demonstrate that the Court Amin has made
any endeavour (apart from the first visit)
with "due and reasonable diligence" to find
out the defendant-appellant. I did not find
any justifiable ground to make out a case
that defendant-appellant was not likely to
1 All. Rakesh Kumar Jain Vs. Zulfikar Ali
473
be presented or found at his residence
within reasonable time.

11. The Hon'ble High Court of
Madras has expounded in the case of Abdul
Salam Rowther vs. State Bank of India
decided
on
19.03.1993,
(MANU/TN/0487/1993),
that
before
treating the service of notice, effective
compliance of provisions as enunciated
under Order 5 has to be followed properly.
For ready reference paragraph nos.7 & 8 of
the
aforesaid
judgement
is
quoted
hereinbelow:

"7. In Mrs. Emkamma Bai v.
Ravikumar (1992) 1 L. W. 54, the duty of
the process server under Order 5, Rule 15,
C.P.C. has been stated by Srinivasan, J in
this manner. Under Order 5, Rule 15,
C.P.C., it is an essential precondition that
the process-server should ascertain whether
there was likelihood of the defendants 3
and 4 being found in the residence within a
reasonable time. If the defendants 3 and 4
could be found at their residence within a
reasonable time, then the process-server
should wait or go to the residence of the
defendants once again on another day and
try to serve on them at their residence
personally. In case where the defendants
may not be found at their residence within
a reasonable time, the process-server could
serve the summons on any adult member of
the family, whether male or female,
residing with such defendant. As the
process-server has not ascertained such fact
in the present case and has not made any
reference in the affidavit to the factum of
his ascertaining as to whether there is any
likelihood of the defendants being available
for service at their residence within a
reasonable time, the service of summons on
a person, who has described himself as the
4th defendant's brother and 3rd defendant's
son is not a valid service. It cannot be
countenanced in law as service within the
meaning of Order 5, Rule 15, C.P.C. In
Kuttiappa
v.
Rangasami
MANU/TN/0456/1992: (1992) 2 MLJ 362,
also Srinivasan, J. has reiterated the
procedure to be followed as under.

Under Order 5, Rule 15, C.P.C., if
the defendant is absent from his residence
at the time when the service of summons is
sought to be effected on him, the process
server must be satisfied, (i) that there is
likelihood of the defendant being found at
the residence within a reasonable time, and
(ii) he had no agent empowered to accept
the service of summons on his behalf and
in that event, service may be made on any
adult member of the family, whether male
or female, who is residing with him. Order
5, Rule 17 is to the effect that when the
defendant or his agent 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 and there is no
likelihood of his being found at the
residence within a reasonable time and if
there is no agent or other person to receive
the summons, 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 and shall then return the original to
the court with 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 by whom the house was
identified and in whose presence the copy
was affixed.
8. It does not appear from the records in
this case that any endeavour has been made
to follow the procedure prescribed in Order
5, C.P.C. in the service of summons as
already referred to. Rule 12 of Order 5
474 INDIAN LAW REPORTS ALLAHABAD SERIES
requires that whereever it is practicable,
service shall be made on the defendant in
person, unless he has an agent empowered
to accept service in which case service on
such agent shall be sufficient. Under
Order 9, Rule 6 C.P.C., where the
plaintiff appears and the defendant does
not appear when the suit is called on for
hearing, then,

(a) if it is proved that the
summons was duly served, the Court may
make an order that the suit be heard ex
pane.

In this case, there is no record to
indicate that the Court was satisfied that
there was due service of summons."

12. It is also apposite to mention
that while proceeding with the matter exparte against the defendant-appellant,
vide order dated 11.12.2018, learned trial
court has simply shown the absence of
the
defendant
and
ordered
to
be
proceeded ex-parte. However, no specific
finding has been returned with respect to
the effective service of notice upon the
defendant as required under Order 9 Rule
6 (a) C.P.C.

13. It is pertinent to be noted as well
that to prove the effective service of
notice upon defendant under Order 5
Rule 17, Process Server/ Court Amin has
to verify the return of summon by filing his
personal affidavit as enunciated under
Order 5 Rule 19 C.P.C. Return of summon
in case not verified by the affidavit of
Serving Officer, court shall examine him on
oath, however, in case, it has been verified,
court may examine him and may make
such further enquiry in the matter as it
think fit. After such examination, court
shall either declare that summon has been
duly served or pass an order for such
service as it thinks fit. In the matter in hand
learned trial court, while passing the order
impugned has not complied with the
provisions as enunciated under Order 5
Rule 19 C.P.C.

14. Therefore, in this conspectus as
above, I am of the view that the learned
trial court has failed to consider the
relevant provisions for the effective service
of notice upon defendant-appellant as
enunciated under Order 5 Rule 12, 15, 17
and 19 C.P.C.. Thus, service of notice upon
the defendant no.2 cannot be treated to be
sufficient for the purposes of deciding the
suit ex-parte or for the purposes deciding
the
delay
in
filing
the
restoration
application against the ex-parte decree.

15. None filing of separate formal
application
under
Section
5
of
the
Limitation Act, for the condonation of
delay in filing the restoration application
against the ex-parte judgement and decree
dated 13.11.2009 has also been taken as a
vidal ground by learned trial court while
dismissed the restoration application on the
ground of latches. In this respect, learned
counsel for the plaintiff-respondent has
cited the case of Sneh Gupta (supra) and
contended that formal application under
Section 5 of Limitation Act is necessary.
However, learned counsel for the appellant
has
submitted
that
separate
formal
application for the condonation of delay
under Section 5 of Limitation Act is not
required, in case sufficient ground is made
out to prove bona-fide conduct of the
defendant. He has place reliance on the
judgement of Sesh Nath Singh (supra).
Perusal of restoration application dated
12.09.2011 reveals that in the prayer clause
of the application, defendant-appellant has
sought relief for the condonation of delay
as well with an averment that in case his
application is found beyond prescribed
1 All. Rakesh Kumar Jain Vs. Zulfikar Ali
475
period of limitation, he may be accorded
benefit under Section 5 of the Limitation
Act. On the premise of prayer made by the
defendant-appellant
in
the
restoration
application,
this
fact
is
quite
distinguishable from the facts of case Sneh
Gupta (supra) relied upon by learned
counsel for the plaintiff-respondent. There
is no such observation made by the Hon'ble
Supreme Court in the aforesaid cited
case, that even after relief sought for the
condonation of delay, same cannot be
entertained for want of proper application
under Order 5 of the Limitation Act. Even
otherwise, case of Sesh Nath Singh
(supra) is subsequent to the case of Sneh
Gupta (supra). As per established law, in
the matters, if two irreconcilable decision
of the Hon'ble Supreme Court delivered
by Bench of equal strength, the latter
decision of the Hon'ble Supreme Court
will prevail. Thus, in the subsequent
judgment of Sesh Nath Singh (supra),
the
Hon'ble
Supreme
Court
has
expounded that even in absence of the
formal
application
delay
can
be
condoned, if there are sufficient material
on record disclosing sufficient cause for
the delay. In the matter in hand cause
shown by the defendant-appellant for
delay in filing the restoration application
is
quite
sufficient
and
convincing.
Therefore, in the light of the prayer made
by
defendant-appellant
for
granting
benefit under Order 5 of the Limitation
Act, defendant-appellant cannot be forced
to file separate formal application for the
condonation of delay under Section 5 of
the Limitation Act. As such, in the light
of the facts as discussed above, case of
the defendant-appellant is liable to be
treated
within
prescribed
period
of
limitation from the date of knowledge i.e.
09.09.2011, under the provisions of law
as enunciated under Article 123 of the
Limitation Act.

16. So far as the compliance of Rule
89 of General Rule Civil is concerned, as
submitted by learned counsel for the
appellant, I am of the view that in light of
the fact wherein case was already ordered
to be proceeded ex-parte by order dated
11.12.2008, subsequent transfer order dated
28.01.2009 has not got much relevance for
the purposes of issuance of fresh notices to
the parties under Rule 89 of General Rule
Civil.

17. Even otherwise, in the matter of
delay court should conscious and make
endeavour to do complete justice to both
the parties appearing before him. It is
settled law that all Courts of law are
established for furtherance of interest of
substantial justice and not to obstruct the
same on technicalities. Reference-- Jai Jai
Ram Manohar Lal Vs. National Building
Material Supply; AIR 1969 SC 1267,
wherein it has been held that the substantial
justice and technicalities, if pitted against
each other, the cause of substantial justice
should not be defeated on technicalities. No
procedure in a Court of law should be
allowed to defeat the cause of substantial
justice on some technicalities. Reference -
Ghanshyam Dass & Ors. Vs. Dominion of
India & Ors., AIR (1984) 3 SCC 46.

18. Apart from that in recent
judgment of Bhivchandra Shankar More
vs. Balu Gangaram More & Ors (decided
by
Hon'ble
Supreme
Court
on
07.05.2019), reported in 2019(6) SCC 387,
it is expounded that in condoning the delay
"sufficient cause" should be given liberal
construction so as to advance substantial
justice. The relevant paragraph nos. 15 and
476 INDIAN LAW REPORTS ALLAHABAD SERIES
16 of the aforesaid judgment are being
quoted herein below:-

"15. It is a fairly well settled law that
"sufficient cause" should be given liberal
construction so as to advance sustainable
justice when there is no inaction, no
negligence nor want of bonafide could be
imputable to the appellant. After referring
to various judgments, in B. Madhuri, this
Court held as under:-

"16. The expression "sufficient cause"
used in Section 5 of the Limitation Act,
1963 and other statutes is elastic enough to
enable the courts to apply the law in a
meaningful manner which serves the ends
of justice. No hard-and-fast rule has been
or can be laid down for deciding the
applications for condonation of delay but
over the years courts have repeatedly
observed that a liberal approach needs to
be adopted in such matters so that
substantive rights of the parties are not
defeated only on the ground of delay."

19. Observing that the rules of
limitation are not meant to destroy the
rights of the parties, in N. Balakrishnan v.
M. Krishnamurthy (1998) 7 SCC 123, this
Court held as under:-

"11. Rules of limitation are not meant
to destroy the rights of parties. They are
meant to see that parties do not resort to
dilatory tactics, but seek their remedy
promptly. The object of providing a legal
remedy is to repair the damage caused by
reason of legal injury. The law of limitation
fixes a lifespan for such legal remedy for
the redress of the legal injury so suffered.
Time is precious and wasted time would
never revisit. During the efflux of time,
newer causes would sprout up necessitating
newer persons to seek legal remedy by
approaching the courts.

So a lifespan must be fixed for each
remedy. Unending period for launching the
remedy may lead to unending uncertainty
and consequential anarchy. The law of
limitation is thus founded on public policy.
It is enshrined in the maxim interest
reipublicae up sit finis litium (it is for the
general welfare that a period be put to
litigation). Rules of limitation are not
meant to destroy the rights of the parties.
They are meant to see that parties do not
resort to dilatory tactics but seek their
remedy promptly. The idea is that every
legal remedy must be kept alive for a
legislatively fixed period of time." As
pointed out earlier, an appeal under
Section 96 CPC is a statutory right.
Generally, delays in preferring appeals are
required to be condoned, in the interest of
justice, where there is no gross negligence
or deliberate inaction or lack of bonafide is
imputable to the party seeking condonation
of delay."

20. In this conspectus as discussed
above, I am of the considered view that
learned trial court has illegally denied to
extend the benefit under Section 5 of the
Limitation Act and rejected the restoration
application. Defendant-appellant has been
deprived of from an adequate opportunity
of hearing in original suit which has been
decided ex-parte, resulted into depriving
the defendant from his property which was
subject matter of the sale deed dated
02.02.1994. There is no proper application
of judicial mind while rejecting the
restoration application filed on behalf of
defendant-appellant. Delay in filing the
restoration application is liable to be
condoned and the restoration application is
liable to be allowed as well. Order under
challenge is illegal, unwarranted under the
law and infirm which is liable to be
quashed.
1 All. The New India Assurance Co. Ltd. Vs. Smt. Madhu & Ors.
477

21. Resultantly, instant First Appeal
From Order is allowed and the judgement
and order dated 10.12.2021 passed by
learned
trial
court
dismissing
the
restoration application moved on behalf of
the defendant-appellant under Order 9 Rule
13 C.P.C. is hereby quashed and said
restoration
application
is
allowed.
Consequently, ex-parte judgement and
decree dated 13.11.2009 passed by learned
District Judge, Court No.5, Muzaffar Nagar
in Original Suit No.648 of of 2008 (Julfkar
Ali vs. Rakesh Kumar Jain) is quashed as
well and Original Suit No.648 of 2008 is
restored to its original number. Parties are
relegated to the trial court. Suit shall be
decided afresh in accordance with law after
giving opportunity of hearing to the parties
concerned.

22. Before parting the matter, counsel
for the parties have prayed for issuing a
direction to the court below for expeditious
disposal of the suit. Having considered the
peculiar facts and circumstances of the
present case, wherein suit was decreed exparte on 13.11.2009 resulted into the
cancellation of the registered sale deed
dated 02.02.1994, it would be befitting to
issue a direction for expeditious disposal of
the suit. As such, this Court trust and
believe that learned trial court shall make
all endeavour to decide the suit within 12
months from the date of appearance of the
parties along with the certified copy of this
order.

23. Both the parties are hereby
directed to appear before the trial court
concerned
and
move
an
appropriate
application, along with the certified copy of
order of the date, on or before 22.01.2024.
Defendant-appellant is hereby directed to
submit his written statement along with
relevant documents relied upon by him on
or before the next date fixed by this Court
i.e. 22.01.2024, so that, unnecessary time
may not be wasted in filing the written
statement and trial could be expedited
within a stipulated period as directed
above.
----------
(2024) 1 ILRA 477
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

First Appeal from Order No. 3597 of 2008

The New India Assurance Co. Ltd.
 ...Appellant
Versus
Smt. Madhu & Ors. ...Respondents

Counsel for the Appellant:
Ms. Aarushi Khare, Sri Sarvesh Kumar Pandey

Counsel for the Respondents:
Sri Vidya Kant Shukla

A. First Appeal From Order - Insurer's
Appeal
Dismissed,
Compensation
Enhanced - The New India Assurance Co. Ltd.
challenged the Motor Accident Claims Tribunal's
award dated 19.08.2008 granting Rs.4,85,000/-
with 7% interest - Held, the appeal was
dismissed as the Tribunal's findings on the
truck's involvement and driver's negligence were
upheld, but the compensation was enhanced to
Rs.10,68,000/- considering oral cross-objections
by the claimants. (Paras 1, 43, 44)

B. Negligence and Vehicle Involvement -
Tribunal's Findings Upheld - The Tribunal
found that Truck No. MP-09KA-4228 caused the
accident due to rash and negligent driving,
based on eyewitness testimony (PW-2) - Held,
as per Sunita Vs Rajasthan St. Road Transport
Corporation, a dependable eyewitness account
suffices in motor accident claims, and the
insurer's unproven documentary evidence (e.g.,
photocopied receipts) failed to disprove the