# Shrawan @ Sarvan Gupta v. Smt. Renu Kushwaha & Ors

- **Citation:** (2019) 2 ILRA 1235
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-19
- **Case number:** Matter Under Art. 227 No. 6077 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shrawan-sarvan-gupta-v-smt-renu-kushwaha-ors-44579
- **Pages:** 15

## Headnote

Letting, Rent and Eviction) Rules, 1972Rule 32- U.P. Act 13 of 1972- Section 21-
Code of Civil Procedure, 1908- Section
151- rejecting the restoration application, filed
by the applicant-petitioner for recall of the exparty judgment and decree dated 07.04.2018

Held : - The alleged substituted service was
shown with respect to the tenant-defendant
1st set and the tenant-defendant 2nd set by
single publication in one and the same
newspaper i.e. "Jagat Asha" and the court
below itself held in its order dated 08.04.2019
filed by the tenant-defendant 1st set for
setting aside the judgment and decree dated
07.04.2018, that the substituted service by
publication in the newspaper "Jagat Asha" is
not valid. Therefore, there was no valid
substituted service upon the tenant-defendant
2nd set. (Para-30). Relevant Paras 27 to 29.

Writ Petition allowed (E-8)

List of Cases Cited: -

## Text

_Characters 0–39,943 of 49,563. This is a partial read: ask again with offset=39943 for what follows._

2 All. Shrawan @ Sarvan Gupta Vs Smt. Renu Kushwaha & Ors.
1235
Section
100
CPC.
However,
the
submission is devoid of any force. Section
108 CPC specifically provides that the
provisions of Part VII relating to appeals
from original decree shall as far as may be
applied to appeals from appellate decrees.
Section 96 (3) is contained in Part VII.
Section 96 (3), as noted above, is based
on doctrine of estoppel which would
equally apply to a consent decree passed
in appeal. However, for other reasons
stated in earlier part of the judgement, the
bar under Section 96 (3) C.P.C. would not
come in way of the petitioner in filing
second appeal.

31. In consequence, the instant
petition is dismissed on the ground of
availability of alternative remedy of
second appeal under the Code itself. The
petitioner shall be free to avail the said
remedy, in which event, nothing observed
herein would be taken as expression of
opinion on merit of the case.

32. Office is directed to return
certified
copies
of
the
impugned
judgments to counsel for the petitioner
after retaining photo copies on record.
----------

(2019)10ILR A 1235

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Matter Under Art. 227 No. 6077 of 2019
(Civil)

Shrawan @ Sarvan Gupta ...Petitioner
Versus
Smt. Renu Kushwaha & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Siddharth Nandan

Counsel for the Respondents:
Sri Anoop Trivedi, Sri Nitin Chandra
Mishra

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972Rule 32- U.P. Act 13 of 1972- Section 21-
Code of Civil Procedure, 1908- Section
151- rejecting the restoration application, filed
by the applicant-petitioner for recall of the exparty judgment and decree dated 07.04.2018

Held : - The alleged substituted service was
shown with respect to the tenant-defendant
1st set and the tenant-defendant 2nd set by
single publication in one and the same
newspaper i.e. "Jagat Asha" and the court
below itself held in its order dated 08.04.2019
filed by the tenant-defendant 1st set for
setting aside the judgment and decree dated
07.04.2018, that the substituted service by
publication in the newspaper "Jagat Asha" is
not valid. Therefore, there was no valid
substituted service upon the tenant-defendant
2nd set. (Para-30). Relevant Paras 27 to 29.

Writ Petition allowed (E-8)

List of Cases Cited: -

1. Ram Prakash Agarwal and Another Vs. Gopi
Krishnan (Dead through L.Rs.) and Others
2013(4) AWC 3856(SC)

2. Heera Lal Sharma Vs. XVth Addl. District
Judge, Kanpur & others 1983 ARC 535

3. Tara Shankar Vs. Vinod Kumar Verma and
others 1993 (2) ARC 6

4. Indian Bank vs M/S Satyam Fibres (India}
Pvt.Ltd, (1996) 5 SCC 550

5. A.R. Antulay Vs. R.S. Nayak & Anr. (1988) 2
SCC 602
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Budhia Swain and others Vs. Gopinath Deb
and others (1999) 4 SCC 396

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Siddharth Nandan,
learned counsel for the applicant -
petitioner and Sri Anoop Trivedi, learned
Senior Advocate, assisted by Sri Nitin
Chandra Mishra, learned counsel for the
plaintiff - opposite party no.4.

2. This petition under Article 227 of
the Constitution of India has been filed
praying to set aside the order dated
30.04.2019 in Misc. Case No.45 of 2018
(Shrawan Vs. Javed) under Rule 32 of the
U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972
(hereinafter referred to "Rules, 1972")
read with Section 151 C.P.C. passed by
the Civil Judge (S.D.), Court No.18,
Deoria,
rejecting
the
restoration
application 4 Ga, filed by the applicantpetitioner for recall of the ex-party
judgment and decree dated 07.04.2018 in
P.A. Case No.01 of 2017 {Javed Ahmad
Vs.
Smt.
Renu
Kushwaha,
Dipu
Kushwaha,
Gaurav
Kushawaha
(defendant 1st set) and Venketeshwar
(defendant 2nd set)}.

3. Learned counsel for the petitioner
has submitted at the very outset that he is
not pressing the relief no.2 since the
application has been decided by the
impugned order.

Facts:-

4. Briefly stated facts of the present
case
are
that
the
defendant
1st
set/respondent nos.1, 2 and 3 are the
tenants of a portion of the disputed house
and the defendant no.4 Venketeshwar
(defendant 2nd set) is tenant of a
separate portion/shop in the disputed
house No.201, Ward No.22, Abubkar
Nagar, Station Road, Tappa - Deoria,
Pargana - Salempur Majhauli, Tehsil &
District
-
Deoria.
The
aforesaid
disputed house was originally owned by
one Brijish Johara, son of Farukh Chisti
who had let out separate portions in the
aforesaid house to the defendant 2nd set
and the father of the defendant 1st set. He
sold the disputed house to the plaintiffopposite party no.4 Sri Javed Ahmad
by a registered sale deed dated
10.04.2013.
The
aforesaid
plaintiff/opposite party no.4 Javed
Ahmad filed a P.A. Case No.01 of 2017,
alleging that a registered notice dated
22.09.2015 and 10.02.2014 were given by
him to the defendant 1st set and the
defendant 2nd set to vacate the disputed
house on the ground of bonafide need of
the disputed accommodation. The notices
were shown to be served by substituted
service i.e. by the alleged publication of
notice in some news paper "Jagat Asha".
Thereafter the P.A. Case was proceeded
ex-parte and an ex-parte judgment and
decree dated 07.04.2018 was passed by
Civil Judge (S.D.), Court No.18, Deoria,
giving reasons and his findings as under:-

"izLrqr okn esa nkf[ky lk{; ds vk/kkj
ij U;k;ky; dk ;g er gS fd oknh fookfnr edku
dk Lokeh o edku ekfyd gS rFkk izfroknh izFke
i{k o f}rh; i{k fdjk;snkj gSA oknh dks fookfnr
edku dh ln~Hkkoh vko';drk gSA ;fn oknh
lnHkkoh vko';drk ds vk/kkj ij iz'uxr edku dks
mlds i{k esa voeqDr ugh fd;k x;k rks oknh dks
vf/kd dfBukbZ dkfjr gksxhA

i=koyh ij miyC/k ekSf[kd o nLrkosth
lk{;ks ds voyksdu ds mijkUr U;k;ky; bl er
dk gS fd oknh vius okni= ds dFkuksa dks lkfcr
djus esa ,di{kh; :i ls lQy jgk gSA blds
[k.Mu esa i=koyh ij ,slk dksbZ lk{; ugha gS
2 All. Shrawan @ Sarvan Gupta Vs Smt. Renu Kushwaha & Ors.
1237
ftlls oknh ds dFkuksa ij vfo'okl fd;k tk;sA
vr,o oknh dk vkosnu vkKIr fd;s tkus ;ksX; gSA"

5. It was well within the knowledge
of the plaintiff-opposite party no.4 Javed
Ahmad that the defendant 2nd set, namely
Sri Venketeshwar is missing since the
year 2013. It appears that when one Sri
Subhas son of the defendant 2nd set
heard about the aforesaid P.A. Case
No.01
of
2017,
he
filed
an
impeleadment application 28 Ga stating
that the defendant no.4 is missing since
the year 2013 and, therefore, he may be
impleaded
as
defendant.
The
Impleadment application 28 Ga was
rejected by the Civil Judge (S.D.) Court
No.18, Deoria, by an order dated
16.02.2018 on the grounds firstly that the
applicant - Subhash son of Venketeshwar
could not file any evidence to establish
that his presence is necessary in P.A. Case
No.01 of 2017 for effective disposal of
the case and secondly that seven years
have not passed since the missing of
defendant no.4 Venketeshwar, therefore,
his civil death can not be assumed.

6. The aforesaid Subhash son of the
defendant no.4 has filed an appeal
challenging
the
aforesaid
ex
parte
judgment and decree dated 07.04.2018
which is stated to be pending.

7. The defendant 1st set, namely,
Renu Kushwaha and others filed an
application 4 Ga under Rule 32 read with
Section 22 (b) of the Rules 1972 for
setting aside the aforesaid judgment and
decree dated 07.04.2018, which was
registered as Misc. Case No.46 of 2018
(Renu Kushwaha Vs. Javed). It was
allowed by the Prescribed Authority/Civil
Judge (S.D.), Court No.18, Deoria, by
order dated 08.04.2019 in which the
Prescribed Authority recorded a finding
that the news paper in which the notice of
P.A. Case No.01 of 2017 was published,
had
no
circulation
in
the
area.
Accordingly, the service of notice upon
the defendant 1st set was held to be not
sufficient. Consequently the judgment
dated 07.04.2018 was set aside and the
P.A. Case no.01 of 2017 (Javed Ahmad
Vs. Smt. Renu Kushwaha and others) was
restored to its original number with
respect to the defendant 1st set (defendant
nos. 1 to 3). It was also observed that
service of notice was not made upon the
defendants as per rules and the impugned
ex-parte judgment has been passed
without
proper
service
upon
the
defendants.

8. The applicant/petitioner is the
son of the defendant 2nd set, namely,
Sri Venketeshwar. He also filed an
application 4 Ga, dated 14.05.2018 under
Order IX Rule 13 read with Section 151
C.P.C. and Rule 22 of the Rules, 1972.
The defendant 1st set and the applicantpetitioner herein both have filed the recall
applications simultaneously. In his recall
application the applicant petitioner has
clearly stated that he came to know about
the ex parte judgment dated 07.04.2018 in
P.A. Case No.01 of 2017 when the
plaintiff-opposite
party
no.4
herein
threatened him for eviction on the basis of
the aforesaid judgment and decree then he
contacted his counsel and enquired and
got inspected the file of the case on
10/11.05.2018 and came to know that
fraudulently the plaintiff-opposite party
no.4 had instituted the P.A. case and got it
decreed ex-parte by judgment and decree
dated 07.04.2018 and no notice of the
aforesaid case was served. The aforesaid
recall
application
of
the
applicant/petitioner was registered as
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
Misc. Case No. 45 of 2018 (Shravan Vs.
Javed) which was rejected by the
impugned order dated 30.04.2019, passed
by the Civil Judge (S.D.), Court No.18,
Deoria, observing as under :-

"i=koyh
ds
lkFk
ih0,0okn
la0&01@17 dh i=koyh miyC/k gS] ftlds
ifj'khyu ls ;g izdV gksrk gS fd mDr ekeys esa
orZeku izdh.kZ okn ds dk;ehnkrk tkosn vgen dh
vksj ls ,d izkFkZuk i= 28x izLrqr fd;k x;k Fkk
rFkk mDr izkFkZuk i= ds ek/;e ls izkFkhZ ds }kjk
;gh rdZ fy;k x;k Fkk fd mlds firk cSdVs'oj tks
fd izfri{kh la0&4@ f}rh; i{k gSA 4&5 o"kksZ ls
xk;c gSA vr% mls mijksDr ekeys esa muds fof/kd
izfrfuf/k ds rkSj ij i{kdkj dk;e dj fy;k tk;A
ftl izkFkZuk i= ij fnukad 16-02-18 dks U;k;ky;
}kjk xq.k nks"k ij vkns'k ikfjr djrs gq;s izkFkhZ dks
okn dk mfpr ,oa vko';d i{kdkj gksuk ugh ekuk
x;k rFkk mldk i{kdkj cuk;s tkus dk izkFkZuk i=
28x xq.k nks"k ij fujLr dj fn;k x;k gS] ftl
vkns'k ds fo:) izkFkhZ@ dk;ehnkrk dh vksj ls
dksbZ vihy@ fjohtu izLrqr ugh dh x;h gS rFkk
mDr vkns'k vafre gks pqdk gS tks bl U;k;ky; ij
Hkh ck/;dkjh gSA

vkns'k&9 fu;e&13 lh0ih0lh0 esa fn;s
x;s izko/kku ds vuqlkj **fdlh ,sls ekeys esa
ftlrda fMdzh fdlh izfroknh ds fo:) ,di{kh;
ikfjr dh x;h gS] og izfroknh vikLr djkus ds
vkns'k ds fy;s vkosnu ml U;k;ky; esa dj ldsxk]
ftlds }kjk og fMdzh ikfjr dh x;h Fkh vkSj ;fn
og U;k;ky; dk ;g lek/kku dj nsrk gS fd lEeu
dk rkehyk lE;d~ :i ls ugh dh x;h Fkh ;k
ogokn dh lquokbZ ds fy;s iqdkj gksus ij mllatkr
gksus ls fdlh Ik;kZIr gsrqd ls fuokfjr jgk Fkk rks
[kpsZ ds ckjs esa U;k;ky; esa tek djus ds ;k vU;Fkk
,sls fuca/kuks ij tks og Bhd le>s] U;k;ky; ;g
vkns'k djsxk fd tgka rd fMdzh ml izfroknh ds
fo:) gS ogka rd og vikLr dj nh tk;] vkSj
okn esa vkxs dk;Zokgh djus ds fy;s fnu fu;r
djsxk%

ijUrq tgka fMdzh ,slh gS fd dsoy ,sls
izfroknh ds fo:) vikLr ugh dh tk ldrh gS
ogka og vU; lHkh izfrokfn;ks ;k muesa ls fdlh ;k
fdUgh ds fo:) vikLr dh tk ldsxh%

ijUrq ;g vkSj fd ;fn fdlh U;k;ky;
dk ;g lek/kku gks tkrk gS fd izfroknh dks lquokbZ
dh rkjh[k dh lwpuk Fkh vkSj milatkr gksus ds fy;s
vkSj oknh ds nkos dk mRrj nsus ds fy;s i;kZIr
le; Fkk rks og ,di{kh; ikfjr fMdzh dks dsoy
bl vk/kkj ij vikLr ugh djsxk fd lEeu dh
rkehyk esa vfu;ferk gqbZ FkhA**

vFkkZr~ tgka izfroknh dks okn dh lquokbZ
dh rkjh[k dh lwpuk Fkh ogka rkehyk esa vfu;ferk
ds vk/kkj ij ,di{kh; fMdzh dks vikLr ugh fd;k
tk ldrk gSA izLrqr ekeys esa ,di{kh; fMdzh
fnukad 07-04-18 dks ikfjr dh x;h gS tcfd fnukad
16-02-18 dks izkFkZuk i= 28 x tks fd izLrqr ekeys
ds dk;ehnkrk ds }kjk izLrqr fd;k x;k gS] [kkfjt
fd;k x;k Fkk vFkkZr~ dk;ehnkrk dks mDr okn dh
iw.kZ :i ls tkudkjh Fkh rFkk og mDr ekeys esa
mifLFkr Hkh jgk FkkA ;|fi U;k;ky; }kjk mls okn
dk i{kdkj gksuk ugh ekuk x;k rFkk U;k;ky; ds
mDr vkns'k ds fo:) dksbZ pkjktksbZ ugh fd;s tkus
ds dkj.k ;g Hkh ekuk tk;sxk fd mlds }kjk vius
i{kdkj cuus ds vf/kdkj dk ifjR;kx Hkh dj fn;k
x;k gSA ;fn izLrqr ekeys esa mldk izkFkZuk i= 4x
dk;eh gsrq Lohdkj fd;k tkrk gS rks bldk izHkko
vkns'k&1 fu;e&10 lh0ih0lh0 esa fn;s x;s izkOk/kku
ds vuq:i r`rh; i{kdkj dks i{kdkj dk;e djus
tSlk gksxk rFkk vius iwoZ vkns'k fnukad 16-02-18 dks
izfrdwy Hkh gksxk ftldh vuqefr fof/k iznku ugh
djrh gS tSlk fd ekuuh; loksZPp U;k;ky; }kjk
fof/k fu.kZ; Ram Prakash Agarwal and
Another
Vs.
Gopi
Krishnan(Dead
through L.Rs.) and Others 2013(4) AWC
3856(SC) esa vo/kkfjr Hkh fd;k x;k gS fd&

''
16.
----------Permitting
an
application under Order IX, Rule 13,
CPC by a non-party, would amount to
adding a party to the case, which is
provided for under Order 1, Rule 10,
CPC, or setting aside the ex-parte
judgment and decree, i.e., seeking a
declaration that he decree is null and void
for any reason, which can be sought
independently such a party.

20. In view of the above, the
legal issues involved herein, can be
summarised as under:

(I) an application under Order
IX, Rule 13, CPC cannot be filed by a
person who was not initially a party to the
proceedings."

dk;ehnkrk ds }kjk Hkh dk;eh izkFkZuk
i= ds ek/;e ls vizR;{k :i ls vius izkFkZuk i=
2 All. Shrawan @ Sarvan Gupta Vs Smt. Renu Kushwaha & Ors.
1239
28x tks ih0,0okn la0 01@17 esa [kkfjt fd;k tk
pqdk gS] dks Lohdkj djk;s tkus dk iz;kl fd;k tk
jgk gS] ftldk bl U;k;ky; dks {ks=kf/kdkj izkIr
ugh gS D;ksafd mDr vkns'k fnukad 16-02-18 ,d
vafre vkns'k gS] vr% ekuuh; loksZPp U;k;ky; dh
fof/k O;oLFkk Ram Prakash Agarwal and
Another
Vs.
Gopi
Krishnan(Dead
through L.Rs.) and Others (SUPRA) ds
vuq:i dk;ehnkrk tks fd ih0,0okn la0&01@17
dk i{kdkj ugh Fkk mDr ih0,0okn esa ikfjr
,di{kh; fMdzh dks vikLr djkus dk vf/kdkjh ugh
gSA izkFkZuk i= dk;ehnkrk iks"k.kh; ugh gS] [kkfjt
fd;s tkus ;ksX; gSA"

9. Aggrieved with the aforesaid order
dated 30.04.2019 in Misc. Case No.45 of
2018 (Shravan Vs. Javed), passed by the Civil
Judge (S.D.), Court No.18, Deoria, the
present petition under Article 227 of the
Constitution of India has been filed by the
applicant/petitioner.

Submissions

10. Learned counsel for the
applicant-petitioner submits as under:-

(i) The P.A. Case was filed by
the
plaintiff-opposite
party
no.4,
fraudulently knowing it well that the
tenant defendant 2nd set (father of the
applicant) is missing. The applicantpetitioner is the legal representative of the
defendant
2nd
set
,
namely,
Sri
Venketeshwar and is occupying the
tenanted portion but he was not impleaded
as defendant. As and when the ex-parte
judgment in P.A. Case no.01 of 2017
came to his notice, he filed the restoration
application. Almost in similar set of facts
the
restoration
application
of
the
defendant
nos.
1,
2
and
3
(defendant/tenant 1st set) was allowed by
the court below but recall application of
the applicant was arbitrarily and illegally
rejected by the impugned order.

(ii) The provisions of Rule 22
(b) and Rule 32 of the Rules 1972 are
applicable for setting aside the ex-parte
judgment and restoration of the P.A.
Case.

(iii) The impugned order has
been passed illegally and contrary to the
provisions of Rule 22(b) read with Rule
32 of the Rules, 1972 and Section 151
C.P.C.

11. In support of his submissions he
relied upon the judgments of this Court in
Heera Lal Sharma Vs. XVth Addl.
District Judge, Kanpur & others 1983
ARC 535 (para 11 to 14) and Tara
Shankar Vs. Vinod Kumar Verma and
others 1993 (2) ARC6 (paras 4 & 7).

12. Sri Anoop Trivedi, learned
Senior Advocate, submits as under:-

(i) The applicant-petitioner had
no locus standi to file an application 4 Ga
for recall of the ex-parte judgment and
decree dated 07.04.2018 in P.A. Case
No.01 of 2017, since the applicantpetitioner was not party to the aforesaid
P.A. Case. Under Order IX Rule 13
C.P.C. only that person who is a party in
the suit can apply for recall of the exparte judgment and decree.

(ii)
Since
the
impleadment
application of the brother of the petitioner
(paper no.28 Ga) was rejected by the
court below by order dated 16.02.2018,
therefore, it shall operate as res judicata.
Therefore, the restoration application 4
Ga filed by the applicant - petitioner was
lawfully rejected by the courts below.

(iii) Application under Rule 22
of the Rules, 1972 could be filed only
when
a
substitution
in
respect
of
defendant no.4 is made. Since from the
date of missing of the defendant no.4
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
seven years have not passed, therefore, no
one could be substituted in place of the
defendant no.4 Venketeshwar. Therefore,
without substitution, no application under
Rule 22 read with Rule 32 of the Rules,
1972 was maintainable. Therefore, it was
rightly rejected by the court below.

13. In support of his submissions Sri
Anoop Trivedi, learned Senior Advocate,
has relied upon a judgment of Hon'ble
Supreme
Court
in
Ram
Prakash
Agarwal and another Vs. Gopi Krishan
(Dead through Lrs.) and others, 2013
(4) AWC 3856.

Discussion & Findings:

14. I have carefully considered the
submissions of learned counsels for the
parties and with their consent this petition
is being finally heard without calling for a
counter affidavit.

15. Undisputedly, a composite
release application was filed by the
plaintiff-opposite party no.4 against two
distinct tenants of separate tenanted
portions which was allowed by ex-parte
judgment and decree dated 07.04.2018 in
P.A. Case No.01 of 2017, passed by the
Civil Judge, (S.D.), Court No.18, Deoria,
which neither contained any discussion to
the
evidence
led
by
the
plaintiffrespondent no.4 to establish his bonafide
need nor the comparative hardship to be
in his favour. Conclusion based on no
reason was recorded and the P.A. Case
was decreed. The service of notices upon
the defendants were shown by substituted
service by publication of notices in some
newspaper "Jagat Asha" which had no
circulation in the area as has been
observed
by
the
same
Civil
Judge/Prescribed
Authority
while
allowing the restoration application of the
defendant 1st set/opposite party nos. 1,2
and 3, thereby setting aside the ex-parte
judgment and decree dated 07.04.2018 in
P.A. Case No.01 of 2017 and restoring the
P.A. Case to its original number.

16. It is admitted case of the
plaintiff-opposite party no.4 that the
defendant 2nd set, namely, Venketeshwar
(father of he applicant-petitioner herein)
is missing since the year 2013, which fact
is evident from his own application dated
30.10.2014 (paper no.25 Ga) filed in Suit
No.592 of 2013 ( Venketeshwar Vs. Javed
Ahmad). Thus, at the time of giving
notice dated 22.09.2015 or 10.02.2014 as
well as at the time of filing P.A. Case
no.01 of 2017, the plaintiff-opposite party
no.4 was well aware of the fact that the
defendant-2nd set, namely, Venketeshwar
is missing since the year 2013 and yet he
has deliberately not impleaded any of his
legal
representatives
or
his
family
members
who
were
occupying
the
tenanted premises.

17. The application 4 Ga being
Misc. Case No.45 of 2018 (Shrawan Vs.
Javed) was filed by the applicantpetitioner and not by his brother Subhash.
However, in the impugned order rejecting
the said application the court below has
proceeded with the assumption as if the
applicant-petitioner Shrawan had earlier
filed an Impleadment application 28 Ga.
The Impleadment application 28 Ga was
filed by the brother of the applicantpetitioner which was rejected by the court
below by order dated 16.02.2018 for the
reasons
aforementioned
which
itself
speaks about the correctness of the order.
That order prima facie appears to have
been
passed
leaving
the
tenants
remedyless and denying them opportunity
2 All. Shrawan @ Sarvan Gupta Vs Smt. Renu Kushwaha & Ors.
1241
of hearing before passing the ex parte
judgment dated 07.04.2018.

18. The application 4 Ga filed by
the applicant-petitioner herein for recall
of the ex parte judgment dated 07.04.2018
refers to the provisions of Section 151
C.P.C. and Rule 22 of the Rules 1972.
The relevant provisions in rent matters
under U.P. Act 13 of 1972, for restoration
of cases are the provisions of Section 34
(8) of U.P. Act 13 of 1972 and Rule 22
(b) and Rule 32 of the Rules, 1972, which
are reproduced below:-

"Section 34 (8) - Powers of
various authorities and procedure to be
followed by them - For the purposes of
any proceedings under this Act and for
purposes connected therewith the said
authorities shall have such other powers
and
shall
follow
such
procedure,
principles of proof, rules of limitation and
guiding principles as may be prescribed.

Rule 22 . Powers under the
Code of Civil Procedure, 1908 [Section
34 (1) (g)] - The District Magistrate, the
Prescribed Authority or the Appellate or
revising Authority shall, for the purposes
of holding any inquiry or hearing any
appeal or revision under the Act, shall
have the same powers as are vested in the
Civil Court under the Code of Civil
Procedure, 1908, when trying a suit, in
respect of the following matters, namely-

(a) * * * * * * *

(b) the power to proceed ex
parte and to set aside, for sufficient cause,
an order passed ex parte;

(c) * * * * * * *

(d) * * * * * * *

(e) * * * * * * *

(f) * * * * * * *

Rule 32 - Application for
setting aside an ex parte order or for
restoration [Section 34(8) and 41]- The
District
Magistrate,
the
Prescribed
Authority or the Appellant or Revising
Authority, as the case may be, may for
sufficient cause-

(a) set aside an ex parte order
deciding
an
application
for
the
determination of a dispute under Section
8 or for the determination of Standard
rent under Section 9 or for the release of
any building or specified part thereof or
any land appurtenant to such building
under Section 21 or for allotment of a new
building under sub Section (2) of Section
24or for restoration of any amenity under
sub-section (1) of Section 27 or for major
repairs under sub-section (4) of Section
28 or an appeal under Section 22 or a
revision under Section 18;

(b) restore an application or an
appeal or revision referred to in clause
(a) as well as an application , for release
of any building or part thereof or any
land appurtenant to such building where
such application or appeal or revision has
been dismissed for default of appearance
of the applicant or the appellant or
revisionist, as the case may be, or his
counsel."

Service of Notice under the U.P.
Act XIII of 1972:-

19. Section 21(3) of U.P. Act 13 of
1972 specifically mandates that "no order
shall be made under sub-section (1), or
sub-section (1-A) or sub-section (2)
except after giving to the parties
concerned a reasonable opportunity of
being heard, provided that where the
tenant being a servant of Government or
of any local authority or any public sector
corporation
does
not
contest
the
application, then a reasonable opportunity
of being heard shall be given to the
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
District Magistrate, who shall have the
right to oppose the application. Thus
service of notice under Section 21 of the
Act is sine qua non for the exercise of
jurisdiction under the section 21. Section
34 provides for applicability of certain
provisions of the Code of Civil Procedure
Code 1908 in matters under U.P. Act 13
of 1972 for the purpose of exercising
powers
by
various
authorities
and
procedure to be followed by them. Rule
28
of
the
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Rules, 1972 is referable to Section 34(8)
of U.P. Act 13 of 1972 and it provides for
service of notice. Rule 28 of the Rules
1972 is reproduced below:-

"Rule 28 :

Service of notice [(Section
34(8)] (1) A notice Issued by the District
Magistrate, the Prescribed Authority or
the Appellate or Revising Authority under
the provisions of the Act shall be served
on the person concerned-

(a) by giving or tendering it to
such person, or his Counsel, or

(b) by giving or tendering it to
any adult member of his family ; or

(c) if no such person is found,
by leaving it at his last known place of
abode or business or in the case of an
appeal or revision at his address as given
under Rule 6, or

(d) if none of the means
aforesaid is available by affixing it on
some conspicuous part of his last known
place of abode, or business or in the case
of an appeal or revision at his address as
given under Rule 6.

(2) If party files a duly stamped
and addressed envelope for service of any
notice, then it shall be served by
registered post.

(3) In the case of an appeal or
revision unless the Appellant has taken
action under Sub-rule (2), the Appellate
or Revising Authority shall send the
notices to the District Magistrate or the
Prescribed Authority, as the case may be
for having service effected."

20. The Rule 22, 28, and 32 have
been framed in exercise of powers
conferred under Section 34. Perusal of
Rule 28 of the Rules 1972 shows that it
does not provide for service of notice by
publication. Clause (a) of Sub-section 1 of
Section 34 of U.P. Act 13 of 1972
provides for "summoning and enforcing
the attendance of any person and
examining him on oath". It does not
refer to service of notice of the
proceedings under the Act to the parties
against whom an action under Section
21(1) is sought to be taken. The language
used in Section 34(1)(a) of the Act is
plain. It refers to the procedure for
procuring and enforcing attendance of a
witness for being examined on oath. Rule
28 specifically provides the procedure for
service of notice. It provides that a notice
issued by the District Magistrate, the
Prescribed Authority or the Appellate
Authority or the Revising Authority under
the provisions of the Act shall be served
on the person concerned in the manner
prescribed therein. It is as such this Rule
which contains the procedure by which a
notice contemplated by sub-section 3 of
Section 21 of the Act had to be issued.

21. The provisions of Section 21(3),
Section 34(1)(a) of the U.P. Act 13 of
1972 and Rule 28 of the Rules, 1972 have
been explained by this Court in Heera lal
Sharma Vs. XVth Addl. District Judge,
Kanpur and others, 1983 ARC 535
2 All. Shrawan @ Sarvan Gupta Vs Smt. Renu Kushwaha & Ors.
1243
(paras 8, 12 & 13) (which supports the
view taken above), as under:-

"8. A copy of the order-sheet of
the Court of the Prescribed Authority has
been filed along with the writ petition and
a certified copy thereof has been filed
along with the rejoinder-affidavit. It
indicates that before passing the order for
the
notices
being
published
in
a
newspaper the Prescribed Authority was
of the view that service of notice by other
methods was not sufficient. If, therefore, it
was not possible to serve the notice under
Section 21 by publication it is a case
where even on the own finding of the
Prescribed
Authority
the
notice
of
application under Section 21 had not been
served under any of the modes provided
under Rule 28 of the Rules. Sub-section
(3) of Section 21 of the Act contemplates
that no order shall be made under Subsection (1) or Sub-section (1-A) or Subsection (2) of Section 21 except after
giving to the parties concerned a
reasonable opportunity of being heard.
The process of granting of reasonable
opportunity of being heard starts by
serving
of
notice
on
the
person
concerned to appear in order to have his
say in the matter. As such, service of a
notice under Section 21 of the Act is sine
qua non for the exercise of jurisdiction
under the said section. In Shantanu v.
State {1970ALJ 1174(FB)} a Full Bench
of this Court has held that service of a
notice where such notice is required is
preliminary to the acquisition of the
jurisdiction to proceed in the matter. It
was further held relying on the decision of
the Supreme Court in Kiran Singh v.
Chaman Paswan AIR 1954 SC 340 that it
was well settled that an objection to lack
of jurisdiction can be taken at any stage
of the proceedings and even in collateral
proceedings. It is settled law that plea of
res-judicata
raises
a
question
of
jurisdiction
(See
Joy
Chand
v.
Kamalaksha AIR 1949 PC 239). It is
again settled law that if a statute requires
a particular thing to be done in a
particular manner, it should be done in
that manner or not at all (See Asstt.
Collector C.E v. N.T. Co. of India Ltd.
AIR 1972 SC 2563 and Ram Chandra v.
Govind : AIR 1975 SC 915). In the case of
Ramchandra (supra) it was emphasised
that failure to comply with the prescribed
provisions vitiate the consequential order
and render it non est. As already seen
above Sub-section (3) of Section 21 of the
Act contemplates a notice being given in
order to enable the respondent to the
application to have a say in the matter. In
Mathura Prasad v. Dossibai, AIR 1971
SC 2356, it was held that a question
relating to jurisdiction of a Court cannot
be
deemed
to
have
been
finally
determined by an erroneous decision of
that
Court.
If
by
an
erroneous
interpretation of the statute the Court
holds that it has the jurisdiction, the
question would not operate as resjudicata. Similarly by an erroneous
decision
if
the
Court
assumes
jurisdiction which it does not possess
under the statute, the question cannot
operate as res-judicata between the same
parties, whether the cause of action in the
subsequent litigation is the same or
otherwise, because, if these decisions are
considered as conclusive, it will assume
the status of a special rule of law
applicable to the parties relating to the
jurisdiction of the Court in derogation of
the rule declared by the legislature.

12. The only clause on which
reliance has been placed by Counsel for
respondent No. 3 in support of his
submission that recourse to service of
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
notice by publication could be taken is
Clause (a) of Sub-section (1) of Section
34 of the Act which reads:

"(a) summoning and enforcing
the attendance of any person and
examining him on oath."

A perusal of Rules 9 to 20 of
Order V, C.P.C. indicates that all the
modes of service which are prescribed in
Rule 28 of the Rules are to be found in
one or the other rule between these Rules
9 to 20 of Order V. If Clause (a) of
Section 34(1) of the Act is interpreted in
such a manner as to confer on the
authorities mentioned in Section 34 of
the Act the power to take recourse to the
modes of service prescribed in Order V,
Rules 9 to 20 C.P.C. there would have
been apparently no necessity of enacting
Rule 28 of the rules at all in as much as
whatever is prescribed in Rule 28 is
already to be found in one or the other
rules between Rules 9 and 20 of Order V,
C.P.C. Sub-clause (F) of Section 34(1)
contemplates exercise of power in regard
to any other matter which may be
prescribed. Likewise Sub-section (8) of
Section 34 contemplates prescription by
rules in regard to such other powers. The
expression
"such
other
powers"
obviously means what has not already
been provided in any of the Sub-clauses
(a) to (f). This also makes it clear that
the provisions contained in Rules 9 to 20
of Order V, C.P.C. had not been made
applicable to the proceedings under the
Act and Clause (a) of Section 34(1) of
the Act cannot therefore be interpreted
in a manner to include that power.

13. Further as seen above,
Clause (a) of Section 34(1) provides for
summoning
and
enforcing
the
attendance of any person and examining
him on oath. This obviously refers to
issuing of summons requiring a person to
attend and given evidence as witness. It
does not refer to service of notice of the
proceeding under the Act to the party
against whom an action is sought to be
taken. When a notice is issued to the
Defendant
or
Respondent
in
a
proceeding he is not required to attend
for being examined on oath. Further, he
is not compelled to appear. It is left to his
choice whether or not to appear and
contest the proceedings. In this view of
the matter there is no question of
enforcing his attendance. On the other
hand a witness is required to attend for
being examined on oath and if he fails to
appear his attendance is to be enforced.
On the language used in Section 34(1)(a)
of the Act it is plaint that this provision
refers to the procedure for procuring and
enforcing attendance of a witness for
being examined on oath. Rule 28 on the
other hand provides that a notice issued
by the District Magistrate, the Prescribed
Authority or the appellate or revising
authority under the provisions of the Act
shall be served on the person concerned
in the manner prescribed therein. It is as
such this rule which contains the
procedure
by
which
a
notice
contemplated by the Sub-section (3) of
Section 21 of the Act had to be issued."
 (Emphasis supplied by me)

22. In Tara Shankar Vs. Vinod
Kumar Verma and others, 1993 (2)
ARC 6 (7) (paras 3 & 7), Hon'ble Single
Judge considered the provisions of Order
9 Rule 13 C.P.C. while dealing in trust
matter and held as under:-

"3. The brief question that falls
for consideration is whether a decree
passed ex parte, affecting a person, who
was not a party to the decree could be set
aside under Order 9 Rule 13 C.P.C.
2 All. Shrawan @ Sarvan Gupta Vs Smt. Renu Kushwaha & Ors.
1245

7. In the case of Surajdeo v.
Board of Revenue U.P. Allahabad and
others reported in AIR 1982 All 23, this
Court has observed that where a stranger
who was not a party to a suit alleges that
the decree passed therein is obtained by
fraud and collusion, he can bring a
regular suit for the reliefs claimed by him
but there is no hard and fast rule that he
cannot bring the correct facts to the
notice of the court concerned that fraud
had been practised upon the court and
that the court had committed patent
Illegality in passing the ex parte decree in
favour of the Plaintiff in that suit specially
when he was likely to be affected by the ex
parte decree in favour of the Plaintiff in
that suit. It was held that when a
stranger is vitally interested in the
subject matter of the suit decree ex parte
application by him to set aside the ex
parte decree under order 9 Rule 13 Code
of Civil Procedure is competent. It is
maintainable under Section 151 Code of
Civil Procedure also. It would not be
correct to say that the trial court in such
circumstances had no jurisdiction to set
aside the ex parte decree, which was
obtained
by
collusion
and
fraud
practised by the Plaintiff and the
Defendants in that suit."
 (Emphasis supplied by me)

Inherent power to recall and set
aside an order:-

23. In the case of Indian Bank vs
M/S Satyam Fibres (India} Pvt.Ltd,
(1996) 5 SCC 550 (Para 23), Hon'ble
Supreme Court has held that the Court has
inherent power to recall and set aside an
order :-

(i)
when
fraud
has
been
practised upon the Court

(ii) when the Court is misled by
a party or

(iii) when the Court itself
commits a mistake which prejudices a
party

24. In A.R. Antulay Vs. R.S.
Nayak & Anr. (1988) 2 SCC 602 (para
para 130), Hon'ble Supreme Court noticed
motions to set aside judgments being
permitted where: (i) a judgment was
rendered in ignorance of the fact that a
party had not been served at all and was
shown as served or in ignorance of the
fact that a necessary party had died and
the estate was not represented, (ii) a
judgment was obtained by fraud, (iii) a
party has had no notice and a decree was
made against him and such party
approaches the Court for setting aside the
decision ex debito justitiae on proof of the
fact that there was no service.

25. In Corpus Juris Secundum (Vol.
XIX) under the Chapter "Judgment-
Opening and Vacating" (paras.265 to 284,
at pp. 487-510) the law on the subject has
been stated. The grounds on which the
courts may open or vacate their
judgments are generally matters which
render the judgment void or which are
specified in statutes authorising such
actions. Invalidity of the judgment of
such nature as to render it void is a valid
ground for vacating it at least if the
invalidity is apparent on the face of the
record. Fraud or collusion in obtaining a
judgment is a sufficient ground for
opening or vacating it. A judgment
secured in violation of an agreement not
to enter judgment may be vacated on that
ground. However, in general, a judgment
will not be opened or vacated on grounds
which could have been pleaded in the
original action. A motion to vacate will
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
not be entered when the proper remedy is
by some other proceedings, such as by
appeal. The right to vacation of a
judgment may be lost by waiver or
estoppel.
Where
a
party
injured
acquiesces in the rendition of the
judgment or submits to it, waiver or
estoppel results.

26. In Budhia Swain and others
Vs. Gopinath Deb and others (1999) 4
SCC 396 (paras 8 & 9) Hon'ble Supreme
Court again considered the scope of
power of a Tribunal or a Court to recall an
order and held as under:-

"8.In our opinion a tribunal or
a court may recall an order earlier made
by it if

(i) the proceedings culminating
into an order suffer from the inherent
lack of jurisdiction and such lack of
jurisdiction is patent,

(ii)
there
exists
fraud
or
collusion in obtaining the judgment,

(iii) there has been a mistake of
the court prejudicing a party, or

(iv) a judgment was rendered in
ignorance of the fact that a necessary
party had not been served at all or had
died and the estate was not represented.

The power to recall a judgment
will not be exercised when the ground for
re-opening the proceedings or vacating
the judgment was available to be pleaded
in the original action but was not done or
where a proper remedy in some other
proceeding such as by way of appeal or
revision was available but was not
availed. The right to seek vacation of a
judgment may be lost by waiver, estoppel
or acquiescence.

9. A distinction has to be drawn
between lack of jurisdiction and a mere
error in exercise of jurisdiction. The
former strikes at the very root of the
exercise and want of jurisdiction may
vitiate the proceedings rendering them
and the orders passed therein a nullity. A
mere error in exercise of jurisdiction does
not vitiate the legality and validity of the
proceedings and the order passed thereon
unless set aside in the manner known to
law by laying a challenge subject to the
law of limitation. In Hira Lal Patni Vs. Sri
Kali Nath AIR 1962 SC 199, it was held :-

".......The validity of a decree
can
be
challenged
in
execution
proceedings only on the ground that the
court which passed the decree was
lacking in inherent jurisdiction in the
sense that it could not have seisin of the
case because the subject matter was
wholly foreign to its jurisdiction or that
the defendant was dead at the time the
suit had been instituted or decree passed,
or some such other ground which could
have the effect of rendering the court
entirely lacking in jurisdiction in respect
of the subject matter of the suit or over
the parties to it."

Whether ex parte judgment was
liable to be recalled:-

27. The fact regarding missing of the
tenant-defendant 2nd set (defendant no.4)
since the year 2013, came to the notice of
the Court during pendency of the P.A.
Case No.16 of 2017. Order I Rule 10 subRule 2 confers power upon the Court that
the Court may at any stage of the
proceedings, either upon or without the
application of either party, and on such
term as may appear to the Court to be just,
order that the name of any party
improperly joined, whether as plaintiff or
defendant, be struck out, and that the
name of any person who ought to have
been joined, whether as plaintiff or
2 All. Shrawan @ Sarvan Gupta Vs Smt.