# Smt. Kusum v. Smt. Bhawana & Ors

- **Citation:** (2022) 6 ILRA 286
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-20
- **Case number:** Writ-C No. 26057 of 2021
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kusum-v-smt-bhawana-ors-48659
- **Pages:** 16

## Headnote

A. Election Law - UP Panchayat Raj Act,
1947 - Section 12-C - UP Panchayat Raj
(Settlement of Election Disputes) Rules,
1994 - Re-counting of votes - Service of
notice - Rule of audi alteram partem -
Applicability of O. 5 R. 1, 5, 6, 9 and 20 of
CPC - Substituted mode of service, when
can be adopted - Registered post was
returned
un-served
and
there
is
no
declaration under O. 5 R. 9(5) - Effect -
Case was proceeded ex-parte - Validity
challenged - Held, recourse to substituted
service can be taken only if 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, summons cannot be
served in the ordinary way - The order of
the Presiding Officer to proceed ex-parte
against the petitioner was contrary to law.
(Para 15, 22 and 25)
B. Election dispute case - Civil Procedure
Code,1908 - O. 9 R. 7 and O. 17 R. 2 -
Phrase 'at or before such hearing' - Meaning
- Non-appearance of the defendant on the
first
adjourned
date
-
Effect
-
Maintainability of application for recall of
the order to proceed the case ex-parte -
Held, there is nothing in the Civil Procedure
Code which indicates that the right of the
defendant under Order 9 Rule 7 CPC expires
on the next date fixed by the court, i.e., the
date fixed by the court on the day the court
decides to proceed exparte against the
defendant - The phrase 'at or before such
hearing' only signifies that the application
under Order 9 Rule 7 CPC can be filed by the
defendant if he appears on any date fixed in
the case before the hearing in the case is
concluded - High Court held the application
under O. 9 R. 7 maintainable (Para 30, 32,
33 and 34)
Writ petition allowed (E-1)
List of Cases cited :-

## Text

_Characters 0–39,784 of 56,283. This is a partial read: ask again with offset=39784 for what follows._

286 INDIAN LAW REPORTS ALLAHABAD SERIES
of the State respondents with regard to the
availability of a statutory remedy against
the order passed by the Commissioner in an
appeal under sub-section (4) of Section 24
of the Code, is sustained.

66. The writ petition is not entertained
for the reason of existence of an alternative
statutory remedy.

67. The petition stands dismissed
leaving it open to the petitioner to take
recourse
to
the
statutory
alternative
remedy.
----------
(2022)06ILR A286
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.05.2022

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ-C No. 26057 of 2021
and Matters Under Article 227 No. 26250 of
2021

Smt. Kusum ...Petitioner
Versus
Smt. Bhawana & Ors. ...Respondents

Counsel for the Petitioner:
Rudra Mani Shukla

Counsel for the Respondents:
C.S.C., Amrendra Nath Tripathi, Avinash Mishra,
Rakesh Kumar Chaudhary, Sanjeet Kumar
Mishra, Santosh Kumar Pandey

A. Election Law - UP Panchayat Raj Act,
1947 - Section 12-C - UP Panchayat Raj
(Settlement of Election Disputes) Rules,
1994 - Re-counting of votes - Service of
notice - Rule of audi alteram partem -
Applicability of O. 5 R. 1, 5, 6, 9 and 20 of
CPC - Substituted mode of service, when
can be adopted - Registered post was
returned
un-served
and
there
is
no
declaration under O. 5 R. 9(5) - Effect -
Case was proceeded ex-parte - Validity
challenged - Held, recourse to substituted
service can be taken only if 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, summons cannot be
served in the ordinary way - The order of
the Presiding Officer to proceed ex-parte
against the petitioner was contrary to law.
(Para 15, 22 and 25)
B. Election dispute case - Civil Procedure
Code,1908 - O. 9 R. 7 and O. 17 R. 2 -
Phrase 'at or before such hearing' - Meaning
- Non-appearance of the defendant on the
first
adjourned
date
-
Effect
-
Maintainability of application for recall of
the order to proceed the case ex-parte -
Held, there is nothing in the Civil Procedure
Code which indicates that the right of the
defendant under Order 9 Rule 7 CPC expires
on the next date fixed by the court, i.e., the
date fixed by the court on the day the court
decides to proceed exparte against the
defendant - The phrase 'at or before such
hearing' only signifies that the application
under Order 9 Rule 7 CPC can be filed by the
defendant if he appears on any date fixed in
the case before the hearing in the case is
concluded - High Court held the application
under O. 9 R. 7 maintainable (Para 30, 32,
33 and 34)
Writ petition allowed (E-1)
List of Cases cited :-
1. Sangram Singh Vs Election Tribunal; AIR
(1955) SC 425
2. Arjun Singh Vs Mohindra Kumar & ors.; AIR
(1964) SC 993
3. Om Prakash Vs Prakash Chand & ors.; AIR
(2004) Allahabad 391
4. Bhagwati Lal Vs Sangeeta; (2017) AIR CC
2284 (Rajasthan)
5. Amrish Vs U.P. Ziladhikari Meerut; (2006) 4
ALJ 495
6. Prahlad Singh & anr. Vs Niyaz Ahmad & ors.;
AIR (2001) Allahabad 78
6 All. Smt. Kusum Vs. Smt. Bhawana & Ors.
287
7. Narendra Vs Prescribed Authority & ors.;
(2010) 1 ALJ 784
8. Nihal Ahmad Vs District Judge, Siddharth
Nagar & ors.; (2004 ) 97 RD 252
9. Neerja Realtors Pvt. Ltd. Vs Janglu (Dead)
through Legal Representative; (2018) 2 SCC 649
(Delivered by Hon'ble Salil Kumar Rai, J.)

1. Both petitions, i.e., Writ - C No.
26057 of 2021 and Matters under Article
227 No. 26250 of 2021 were connected by
order dated 17.11.2021 passed by the Court
and were heard together and are being
decided by a common order.

2. Heard Sri Girish Chandra Sinha
assisted by Sri Rudra Mani Shukla,
Advocates for the petitioner, Sri Amrendra
Nath Tripathi assisted by Sri Santosh
Kumar Pandey, Advocates for respondent
no. 1 and Sri Rakesh Kumar Chaudhary,
Advocate for respondent nos. 5 and 7, the
Election
Commission
and
the
State
Government represented by their respective
Standing Counsel.

3. The dispute in the present petitions
relates to the election of the Gram Pradhan
of Village - Ramgarh, Development Block
- Shivgarh, Tehsil Raniganj, District
Pratapgarh held on 19.4.2021. The post was
reserved
for
woman
(General).
The
petitioner and respondent nos. 1, 2 and 3
were candidates in the elections in which
the
petitioner
was
declared
elected
defeating the respondent no. 1 by a margin
of about 60 votes. On 3.6.2021, the
respondent no. 1 filed Election Petition,
i.e., Case No. 1542 of 2021 under Section
12-C of the Uttar Pradesh Panchayat Raj
Act, 1947 (hereinafter referred to as, ''Act')
before the Deputy District Magistrate /
Sub-Divisional Officer (S.D.O.), Tehsil
Raniganj, District Pratapgarh (hereinafter
referred to as, ''Prescribed Authority'). The
issues in the present case relate to
correctness of the proceedings in Case No.
1542 of 2021 and certain orders passed in
the case, therefore, the proceedings of the
case are being narrated in detail.

4. It is the case of the petitioner that
Election Petition was filed by the lawyer of
respondent no. 1 and was accepted by the
Prescribed Authority in the absence of
respondent no. 1. The order-sheet of the
case does not contain any order passed by
the Prescribed Authority to issue notice on
the Election Petition. An order dated
3.6.2021 directing that notices be issued to
the defendants is transcribed on the
Election Petition, a copy of which was
handed over to the Court during the
arguments and was taken on record. The
order-sheet of the case shows that on
3.6.2021, the Prescribed Authority only
acknowledged the presence of respondent
no. 1 and his counsel while submitting the
Election Petition and fixed 1.7.2021 as the
next date in the case. The order-sheet has
been annexed as Annexure No. C.A. - 5 to
the counter affidavit of respondent no. 1
filed in Petition No. 26057 of 2021. On
3.6.2021 itself, notices were issued by the
office of the Prescribed Authority notifying
15.7.2021 as the date in the case. The copy
of the notice is annexed as Annexure 5 to
the petition. The notice has not been
specifically denied by the respondent no. 1
in his counter affidavit. The order-sheet of
the case further shows that on 1.7.2021, the
Prescribed Authority took note of the fact
that notices had been issued in the case and
fixed 15.7.2021 as the next date. The recital
on the order-sheet of the case on 1.7.2021
is : - पत्र ििी पेश पक्षोां को िोवटस ज री वकय
िय पत्र ििी वदि ांक 15.7.2021 को पेश हो
(Case presented, parties issued notice, Put
up on 15.7.2021). On 15.7.2021, the
288 INDIAN LAW REPORTS ALLAHABAD SERIES
Prescribed Authority recorded that notices
had been served on the opposite parties in
the election petition and fixed 29.7.2021 as
the next date in the case. On 15.7.2021, the
respondent no. 1, i.e., the election petitioner
also filed an application before the
Prescribed Authority alleging that the
petitioner was avoiding notice in the
election petition and, therefore, notices be
issued to the petitioner by registered post.
On the aforesaid application, the Prescribed
Authority passed an order on the same date
directing the Reader of the court to issue
notice by registered post. The order to issue
notice by registered post has also not been
transcribed on the order-sheet of the case
but has been transcribed on the application
dated 15.7.2021. It appears from the
receipts annexed with the counter affidavit
of respondent no. 1 in Petition No. 26057
of 2021 that notices by registered post were
sent on 19.7.2021. The acknowledgment of
the notices sent by registered post to the
petitioner were returned back by the
Postman with an endorsement dated 24th
July, 2021 that the Postman had repeatedly
visited the house of the petitioner but was
informed by her husband that the petitioner
was at Lucknow, therefore, notices were
being returned unserved. On 29.7.2021, the
respondent no. 1 filed an application,
ostensibly under Order 5 Rule 20 of the
Code of Civil Procedure, 1908 (hereinafter
referred to as, ''CPC') stating that the
petitioner was not appearing in the court
despite having knowledge of the case,
therefore, notices be served on the
petitioner through publication in local
newspapers. On the application of the
petitioner, the Prescribed Authority passed
an order dated 29.7.2021 directing the
Reader of the court to get the notice of the
case published. The order dated 29.7.2021
passed by the Prescribed Authority has also
not been transcribed on the order-sheet of
the case but is transcribed on the
application filed by respondent no. 1. The
order-sheet shows that on 29.7.2021, the
case was adjourned for 5.8.2021. Notices in
pursuance to the order dated 29.7.2021
were published in some Hindi Daily named
Lok Mitra on 4.8.2021 and 5.8.2021. On
5.8.2021, the case was adjourned to
12.8.2021 and on 12.8.2021, the case was
adjourned for 26.8.2021. The order-sheet of
the case indicates that on 26.8.2021, the
case was adjourned for 9th September,
2021.
However,
on
26.8.2021,
the
respondent no. 1 filed an application before
the Prescribed Authority praying that notice
in the case be deemed to have been served
on the petitioner and the case be considered
on merits. No orders were passed on the
said application on 26.8.2021 but by his
order dated 2.9.2021, transcribed on the
application dated 26.8.2021, the Prescribed
Authority directed the Reader of the court
to get notice of the case published in hindi
daily, Amar Ujala. The order dated
2.9.2021 is also not transcribed on the
order-sheet of the case and it is relevant to
note that 2.9.2021 was not a date fixed in
the case. In pursuance to the order dated
2.9.2021, notices were published in Hindi
Daily Amar Ujala. The notice of the case
published in Amar Ujala has been annexed
as Annexure C.A. - 4 with the counter
affidavit and it has been stated in Paragraph
14(3) of the counter affidavit that the
publication was effected in Amar Ujala
dated 2.9.2021. However, a perusal of the
document annexed as Annexure CA - 4 of
the counter affidavit in Petition No. 26057
of 2021 also contains notifications issued
by the Uttar Pradesh Public Service
Commission, Swami Vivekanand National
Rehabilitation
Training
Centre
and
Executive
Engineer,
Electricity
Distribution Division - II, George Town,
Prayagraj
on
6th
September,
2021.
6 All. Smt. Kusum Vs. Smt. Bhawana & Ors.
289
Obviously, the notifications could not have
been published on a date previous to their
issuance and, therefore, the notices could
have been published in the newspaper
earliest by 7th September, 2021. Thus, the
averment in Paragraph 14 (3) of the counter
affidavit can not be relied upon so far as the
date of publication of the notice is
concerned. Till 9.9.2021, the petitioner did
not appear in the case, therefore, the
Prescribed
Authority
directed
that
proceedings be held ex-parte against the
petitioner. On the same date, the Prescribed
Authority fixed 16.9.2021 to record the
evidence
of
respondent
no.
1.
On
16.9.2021, the case was adjourned to
23.9.2021 and on 23.9.2021, the affidavits
of the witnesses of respondent no. 1, i.e.,
the election petitioner were filed before the
Prescribed Authority and 30.9.2021 was
fixed for arguments in the case. On
30.9.2021, the petitioner appeared before
the Prescribed Authority and filed an
application under Order 9 Rule 7 read with
Section 151 CPC for recall of the order
dated 9.9.2021. It has been stated in the
application dated 30.9.2021 filed by the
petitioner that she came to know about the
case from rumors in her village and when
she inspected the records of the case on
23.9.2021. The application dated 30.9.2021
filed by the petitioner was dismissed by the
Prescribed Authority by his order dated
7.10.2021 on the ground that it was not
maintainable and the petitioner had the
remedy to file an application under Order 9
Rule 13 because the case was fixed for
arguments.

5. Against the order dated 7.10.2021,
the petitioner filed a revision under Section
12-C(6) of the Act registered as Misc. Case
No. 0245 of 2021 before the District Judge,
Pratapgarh. The revision was filed on
13.10.2021. Meanwhile, because no interim
order was granted to the petitioner by the
revisional court staying the proceedings in
the election petition, the hearing of the
election
petition
continued
and
was
concluded on 21.10.2021 and judgment
was
reserved.
The
District
Judge,
Pratapgarh vide his order dated 28.10.2021
dismissed Misc. Case No. 0245 of 2021
holding that as the trial before the
Prescribed Authority had concluded during
the
pendency of
revision
and
only
judgment had to be pronounced by the
Prescribed
Authority,
therefore,
no
effective relief could be given to the
petitioner in revision.

6. Subsequently, by his order dated
1.11.2021,
the
Prescribed
Authority
directed for a re-count of the ballots
because of certain discrepancies in Forms -
36, 45 and 46.

7. The orders dated 7.10.2021 passed
by the Prescribed Authority and 28.10.2021
passed by the District Judge, Pratapgarh
have been challenged in Petition No. 26250
of 2021 and the order dated 1.11.2021
passed by the Prescribed Authority has
been challenged in Petition No. 26057 of
2021.

8. It was argued by the counsel for the
petitioner that the application under Order
9 Rule 7 CPC was filed by the petitioner on
30.9.2021, i.e., before the judgment in the
case was reserved on 21.10.2021, therefore,
the application was maintainable and the
Prescribed Authority has wrongly held that
the
aforesaid
application
was
not
maintainable. It was further argued by the
counsel for the petitioner that no notice was
served on the petitioner in Case No. 1542
of 2021 either through ordinary mode or
through registered post. It was further
argued by the counsel for the petitioner that
290 INDIAN LAW REPORTS ALLAHABAD SERIES
service of notice by publication, i.e.,
substituted service as directed by the
Prescribed Authority vide his orders dated
29.7.2021 and 2.9.2021 were contrary to
law in as much as the said notices were got
published without the Prescribed Authority
having recorded his satisfaction that the
petitioner was avoiding service of notice in
the case. It was argued that the order dated
1.11.2021 has been passed without giving
any opportunity of hearing to the petitioner
and is also a non-speaking order. It has
been alleged in the petition that the
Prescribed Authority was acting under the
dictates of the local Member of the
Legislative Assembly (hereinafter referred
to as, ''MLA') who is the brother-in-law of
respondent no. 1 / election petitioner. It was
argued that for the aforesaid reasons, the
orders dated 7.10.2021 and 1.11.2021 are
contrary to law and are liable to be setaside by this Court. In support of his
arguments, the counsel for the petitioner
has relied on the judgments reported in
Sangram Singh vs. Election Tribunal AIR
(1955) Supreme Court 425; Arjun Singh
vs. Mohindra Kumar & Ors. AIR (1964)
Supreme Court 993; Om Prakash vs.
Prakash Chand & Ors. AIR (2004)
Allahabad 391; Bhagwati Lal vs. Sangeeta
(2017) AIR CC 2284 (Rajasthan) and
Amrish vs. U.P. Ziladhikari Meerut (2006)
4 ALJ 495.

9. Rebutting the arguments of the
counsel for the petitioner, the counsel for
respondent no. 1 has argued that from the
recital dated 15.7.2021 recorded on the
order-sheet of the case, it is evident that
notice of the case was served on the
petitioner. It was argued that the petitioner
was deliberately avoiding service of notice
in the case and, therefore, no illegality had
been
committed
by
the
Prescribed
Authority in getting the notices published
under Order 5 Rule 20 CPC. It was argued
that the petitioner had been given sufficient
opportunity to appear before the Prescribed
Authority which he failed to avail. It was
argued that the application filed by the
petitioner for recall of the order dated
9.9.2021 whereby the Prescribed Authority
had decided to proceed ex-parte against the
petitioner was not maintainable under
Order 9 Rule 7 CPC as the said application
had to be filed either on a date preceding
the next date fixed in the case or on the
next date fixed in the case, i.e., it had to be
filed on or before 16.9.2021, and in any
case before 23.9.2021. It was further
argued that the application filed by the
petitioner does not disclose any reason for
not
appearing
before
the
Prescribed
Authority on the different dates fixed in the
case before 30.9.2021. It was argued that in
the circumstances, there is no illegality in
the
proceedings
conducted
by
the
Prescribed Authority in Case No. 1542 of
2021 and the application of the petitioner
under order 9 Rule 7 CPC was rightly
dismissed by the Prescribed Authority vide
his order dated 7.10.2021. It was further
argued that in any case, the petitioner
cannot now be permitted to file his written
statement as the evidence of respondent no.
1 has already been filed disclosing his
evidence in the case and any order
permitting the petitioner to file his written
statement would seriously prejudice the
respondent no. 1. It was further argued that
the affidavits filed by the witness of
respondent no. 1 proved that illegalities had
been committed in counting of ballots and
because no written statement was filed by
the petitioner, therefore, the averments
made by respondent no. 1 in Election
Petition instituting Case No. 1542 of 2021
remained un-controverted. It was argued
that in the circumstances, the order dated
1.11.2021
passed
by
the
Prescribed
6 All. Smt. Kusum Vs. Smt. Bhawana & Ors.
291
Authority is according to law. It was
argued that for the aforesaid reasons, the
petitions lack merit and are liable to be
dismissed. In support of his contention, the
counsel for respondent no. 1 has relied on
the judgments reported in Prahlad Singh &
Anr. vs. Niyaz Ahmad & Ors. AIR (2001)
Allahabad 78; Narendra vs. Prescribed
Authority & Ors. (2010) 1 ALJ 784 and
Nihal Ahmad vs. District Judge, Siddharth
Nagar & Ors. (2004 ) 97 RD 252.

10. I have considered the submissions
of the counsel for the parties.

11. The main issues in the present
petitions are as to whether notice of the
case can be held to have been served on the
defendant - petitioner in accordance with
law and whether the application filed by the
petitioner under Order 9 Rule 7 CPC was
maintainable.

12. Uttar Pradesh Panchayat Raj
(Settlement of Election Disputes) Rules,
1994 (hereinafter referred to as, ''Rules,
1994') prescribes the procedure to be
followed in an election petition filed
challenging the election of a Gram
Pradhan. Section 4 of the Rules, 1994
provides that subject to the provisions of
the Act, every election petition shall be
tried by the Sub-Divisional Officer, as
nearly as may be, in accordance with the
procedure applicable under the CPC for the
trial of suits.

13. The provisions in CPC relating to
service of summons on a defendant in a suit
and relevant for the present case is Order 5
CPC. Order 5 Rule 1 CPC provides that
when a suit has been duly instituted, a
summons may be issued to the defendant to
appear and answer the claim and to file the
written statement of his defence, if any,
within thirty days from the date of service
of summons on that defendant. Order 5
Rule 6 CPC provides that the day fixed in
the summons should be such so as to allow
the defendant sufficient time to enable him
to appear and answer on such day. Order 5
Rule 9 CPC prescribes the different modes
of service of notice which includes service
by registered post.

14. Order 5 Rule 20 provides for
substituted service. Order 5 Rule 20 is
reproduced below : -

"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.

(1-A) 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
292 INDIAN LAW REPORTS ALLAHABAD SERIES
appearance of the defendant as the case
may require."

(emphasis added)

15. A reading of Order 5 Rule 20
shows that recourse to substituted service
can be taken only if 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, summons cannot be served in
the ordinary way. Mode of service
prescribed under Order 5 Rule 20 CPC is
an exceptional mode and can be adopted
only in the circumstances enumerated in
Rule 20. At this stage, the observations of
the Supreme Court in Paragraph No. 14 and
15 in Neerja Realtors Private Limited vs.
Janglu
(Dead)
through
Legal
Representative (2018) 2 SCC 649 is
reproduced below :-

"14. Evidently as the report of the bailiff
indicates, he was unable to find the defendant
at the address which was mentioned in the
summons. The report of the bailiff does not
indicate that the summons were affixed on a
conspicuous part of the house, at the address
mentioned in the summons. There was a
breach of the provisions of Order 5 Rule 17.
When the application for substituted service
was filed before the trial court under Order 5
Rule 20, a cryptic order was passed on
2.9.2011. Order 5 Rule 20 requires the court
to be satisfied either 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.
Substituted service is an exception to the
normal mode of service. The Court must
apply its mind to the requirements of Order
5 Rule 20 and its order must indicate due
consideration of the provisions contained in
it. Evidently the trial court failed to apply its
mind to the requirements of Order 5 Rule 20
and passed a mechanical order. ...

15. The submission that under Order 5
Rule 20, it was not necessary to affix a copy
of the summons at the court house and at the
house where the defendant is known to have
last resided, once the court had directed
service by publication in the newspaper
really begs the question. There was a clear
breach of the procedure prescribed in Order
5 Rule 17 even antecedent thereto. Besides,
the order of the Court does not indicate due
application of mind to the requirement of the
satisfaction prescribed in the provision. The
High Court was, in these circumstances,
justified in coming to the conclusion that the
ex-parte judgment and order in the suit for
specific performance was liable to be set
aside."
 (emphasis added)

16. A reading of the observations of
the Supreme Court in Neerja Realtors
(supra) leads to the conclusion that a
substituted service under Order 5 Rule 20
CPC would not be a valid service in law if
the conditions mentioned in Rule 20 do not
exist. Service of notice by the modes
prescribed in Order 5 Rule 20 would not be
a valid service if the order does not indicate
application of mind by the court and its
satisfaction that there was reason to believe
that the defendant was keeping out of the
way for the purpose of avoiding service or
that for any other reason, the summons
could not be served in the ordinary way.

17. It is a fundamental principle of
law that proceedings in a litigation should
not be held behind the back of a party.

18. The purpose of issuing summons /
notice to a defendant in a case is to inform
him about the institution of the suit and the
date fixed in the case. The defendant
6 All. Smt. Kusum Vs. Smt. Bhawana & Ors.
293
should be given sufficient time by the
summons to appear and raise his defense.
The purpose of issuing summons is to give
effect to the rule of audi alteram partem. It
was observed by the Supreme Court in
Sangram Singh vs. Election Tribunal,
Kotah AIR (1955) SC 425 ''that our laws of
procedure are grounded on a principle of
natural justice which require that men
should not be condemned unheard, that
decisions should not be reached behind
their backs, that proceedings that affect
their lives and property should not continue
in their absence and that they should not be
precluded from participating in them.' It
was further observed that ''our laws of
procedure should be construed, wherever
that is reasonably possible, in light of that
principle' and ''no forms or procedure
should ever be permitted to exclude the
presentation of a litigants' defence.' It was
also observed by the Supreme Court in
Sangram Singh (supra) that procedural
provisions are designed to facilitate justice
and
are
not
penal
enactments
for
punishment and penalties. It was observed
that too technical a construction of
procedural provision that leaves no room
for reasonable elasticity of interpretation
should be guarded against.

19. The service of notice on the
defendant - petitioner in Election Case No.
1542 of 2021 has to be seen in light of the
aforesaid legal position.

20. The order-sheet indicates that on
3.6.2021, the Prescribed Authority directed
that the case be posted for 1.7.2021. The
order-sheet of the case does not show that
the Prescribed Authority had directed that
notices be issued in the case to the
defendants. However, the copy of the
election petition handed over to the Court
by the counsel for the petitioner contains an
order by the Prescribed Authority directing
the Reader to register the case and to issue
notice to the parties and that the case be put
up
on
1.7.2021.
On
1.7.2021,
the
Prescribed Authority records on the ordersheet that ''notices issued to the parties'.
The notice issued in the present case and
annexed as Annexure 5 to Petition No.
26057 of 2021 shows that notices were
issued on 3.6.2021 fixing 15.7.2021. It is
difficult to comprehend as to how notices
were issued for 15.7.2021 when by order
dated 3.6.2021, the Prescribed Authority
had directed that the case be put up on
1.7.2021. If notices were issued in
pursuance to the direction of the Prescribed
Authority, the same had to be issued for
1.7.2021 and not 15.7.2021. If notice fixing
15.7.2021 was issued on the directions of
the Prescribed Authority, then there was no
reason for the Prescribed Authority to fix
1.7.2021 as the next date in the case.
Apparently, the notice issued by the office
of the Prescribed Authority was not on the
directions of the Prescribed Authority and,
in any case, not according to the directions
of the Prescribed Authority. The notice
dated 3.6.2021 does not indicate the date
fixed in the case by the Prescribed
Authority and, therefore, cannot be
considered as a valid notice in law.

21. On the order-sheet of 15.7.2021,
the Prescribed Authority records that
notices had been served on the defendant
and fixed 29.7.2021 as the next date in the
case. Interestingly, on 15.7.2021 itself, the
election petitioner, i.e., the respondent no. 1
in the present petitions filed an application
stating that the defendant - petitioner was
avoiding service of notice and, therefore,
notice of the case be sent to the defendant -
petitioner by registered post. The ordersheet does not contain any order directing
service of notice by registered post but as
294 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded earlier, an order dated 15.7.2021
of the Prescribed Authority is transcribed
on the application of respondent no. 1
whereby the Reader of the court was
directed to issue notice by registered post.
The facts stated in the application dated
15.7.2021
on
which
the
Prescribed
Authority relied to pass an order directing
issuance of notice by registered post
controverts the recital dated 15.7.2021 in
the order-sheet. Thus, even if a valid
notice, the notice cannot be considered to
be served on the petitioner.

22. The registered post was returned
un-served. There is no noting by the
Postman that either the petitioner or her
husband had refused to receive the
registered post. Apparently, the notice by
registered post was also not served on the
petitioner. There is no declaration by the
Prescribed Authority, as required under
Order 5 Rule 9(5), that notices sent by
registered post had been duly served on the
petitioner.

23. On 29.7.2021, the election
petitioner, i.e., respondent no. 1 filed an
application ostensibly under Order 5 Rule
20 CPC for publication of notice of the
case. The Prescribed Authority made an
endorsement on the application itself
directing his Reader to get the notices
published. The notices were published in
Lok Mitra, Pratapgarh on 4.8.2021. It may
be noted that the next date fixed in the case
was 5.8.2021. On 5.8.2021, the case was
adjourned for 12.8.2021. On 12.8.2021, the
case was adjourned for 26.8.2021. On
26.8.2021, the respondent no. 1 had filed an
application praying that as notices had been
served on the defendant - petitioner through
publication, therefore, the case may be
decided on merits. No order was passed on
the aforesaid application on 26.8.2021 but
on 2.9.2021, the Prescribed Authority
passed an order, transcribed on the
application and not on the order-sheet,
directing that notices of the case be
published in hindi newspaper Amar Ujala.
It is to be noted that 2.9.2021 was not a
date fixed in the case. It appears that notice
in the case was published in Amar Ujala
but not before 7th September, 2021. On
9.9.2021, the Presiding Officer directed
that the proceedings be held ex-parte
against the defendant - petitioner.

24. The Prescribed Authority while
passing orders for publication of notice has
not recorded his satisfaction that there was
reason to believe that the defendant was
keeping out of the way for avoiding service
of notice or that for any other reason, notice
could not be served on the defendant in the
ordinary way. The orders have been
mechanically passed on the averment made
by respondent no. 1, the election petitioner
that the defendant - petitioner was avoiding
service of notice and would not appear in
the case unless notices are published in
local
newspapers.
The
Prescribed
Authority, under the Rules, 1994 acts as a
Tribunal and is not expected to outsource
or delegate his discretion to a litigant. It is
the Court / Tribunal and not the litigant
who is to be satisfied that the defendant is
keeping out of the way for the purpose of
avoiding service or that summons cannot
be served on the defendant in the ordinary
way,
before
taking
recourse
to
the
exceptional mode of substituted service.
There is nothing on record to show that the
petitioner was keeping out of way for
avoiding service of notice or that notice
could not be served on the defendant in
ordinary way. Further, notices of the case
were published in the newspaper one or
two days before the dates fixed in the case.
The notice was published in Lok Mitra on
6 All. Smt. Kusum Vs. Smt. Bhawana & Ors.
295
4.8.2021 and 5.8.2021 when the date fixed
in the case was 5.8.2021. The second notice
was published on 7.9.2021 when the date
fixed in the case was 9.9.2021. The
summons served through the exceptional
mode have to also fulfill the requirements
of Order 5 Rule 6 CPC, i.e., the summons
should give sufficient time to the defendant
to enable him to appear and answer the
claim of the plaintiff. Apparently, even the
notices published in the newspapers did not
give sufficient time to the petitioner to
enable him to appear and present his case
as required under Order 5 Rule 6 CPC. In
light of Order 5 Rule 6 CPC and the
judgment of the Supreme Court in Neerja
Realtors (supra), notice by publication in
newspapers on 4.8.2021 and 7.9.2021 were
contrary to law.

25. It has already been held that
notice dated 3.6.2021 was not a valid
notice. Notice by registered post was
returned unserved without any noting of
''refusal to receive'. It has also been held
that service through publication was not
valid. Thus, notice of the case was not
duly served on the defendant - petitioner.
Under Order 9 Rule 6(1)(a), the court is
empowered to hear the suit ex-parte
against the non-appearing defendant only
if it is proved that summon was duly
served on the defendant. In the facts of
the present case, the Prescribed Authority
could not have proceeded to hear the case
ex-parte
against
the
petitioner.
Apparently, the proceedings have been
held in violation of the principles of
natural justice and without giving the
petitioner - defendant any opportunity to
put in his defense. The order of the
Presiding Officer to proceed ex-parte
against the defendant - petitioner was
contrary
to
law
and
the
whole
proceedings in Election Case No. 1542 of
2021 starting from 9.9.2021 onwards are
liable to be set-aside on the aforesaid
ground only.

26. The other issue that arises in the
present
appeal
is
regarding
maintainability of the application of the
petitioner under Order 9 Rule 7 CPC filed
on 30.9.2021, i.e., the date on which the
case was posted for arguments after the
evidence of the election petitioner, i.e.,
respondent no. 1, had been filed. At this
stage, it would be relevant to reproduce
Order 9 Rule 6, Order 9 Rule 7 and Order
9 Rule 13 CPC : -

"6. Procedure when only plaintiff
appears.--(1) Where the plaintiff appears
and the defendant does not appear when
the suit is called on for hearing, then--

(a) When summons duly served.--If it
is proved that the summons was duly
served, the Court may make an order that
the suit be heard ex parte;]

(b) When summons not duly served.--If
it is not proved that the summons was duly
served, the Court shall direct a second
summons to be issued and served on the
defendant;

(c) When summons served but not in
due time.--If it is proved that the summons
was served on the defendant, but not in
sufficient time to enable him to appear and
answer on the day fixed in the summons,
the Court shall postpone the hearing of the
suit to a future day to be fixed by the Court,
and shall direct notice of such day to be
given to the defendant.

(2) Where it is owing to the plaintiff's
default that the summons was not duly
served or was not served in sufficient time,
the Court shall order the plaintiff to pay the
costs occasioned by the postponement.

7.
Procedure
where
defendant
appears on day of adjourned hearing and
296 INDIAN LAW REPORTS ALLAHABAD SERIES
assigns good cause for previous nonappearance.--Where
the
Court
has
adjourned the hearing of the suit ex parte,
and the defendant, at or before such
hearing, appears and assigns good cause
for his previous non-appearance, he may,
upon such terms as the Court directs as to
costs or otherwise, be heard in answer to
the suit as if he had appeared on the day
fixed for his appearance.

13. Setting aside decree ex parte
against defendant.--In any case in which a
decree is passed ex parte against a
defendant, he may apply to the Court by
which the decree was passed for an order
to set it aside; and if he satisfies the Court
that the summons was not duly served, or
that he was prevented by any sufficient
cause from appearing when the suit was
called on for hearing, the Court shall make
an order setting aside the decree as against
him upon such terms as to costs, payment
into Court or otherwise as it thinks fit, and
shall appoint a day for proceeding with the
suit: Provided that where the decree is of
such a nature that it cannot be set aside as
against such defendant only it may be set
aside as against all or any of the other
defendants also:

Provided further than no Court shall
set aside a decree passed ex parte merely
on the ground that there has been an
irregularity in the service of summons, if it
is satisfied that the defendant had notice
of the date of hearing and had sufficient
time to appear and answer the plaintiff's
claim.

[Explanation.--Where there has been
an appeal against a decree passed ex
parte under this rule, and the appeal has
been disposed of on any ground other than
the
ground
that
the
appellant
has
withdrawn the appeal, no application
shall lie under this rule for setting aside
that ex parte decree.]

27. It was argued by the counsel for
respondent no. 1 that the application filed
by the petitioner on 30.9.2021 for recall of
the order dated 9.9.2021 whereby the
Presiding Officer had decided to proceed
ex-parte against the petitioner was not
maintainable under Order 9 Rule 7 CPC
because the said application could have
been filed on a date preceding the next date
fixed in the case, i.e., it had to be filed
before 16.9.2021 and in any case before
23.9.2021. In support of his contention, the
counsel for respondent no. 1 has relied on a
judgment in this Court reported in Prahlad
Singh & Anr. vs. Niyaz Ahmad & Ors.
AIR (2001) All 78. Paragraph 6, 7 and 8 of
the aforesaid judgment, on which the
counsel for respondent no. 1 has relied, is
reproduced below : -

"6. In this case admittedly the
summons were duly served upon the
defendants-petitioners. The Court was
therefore, rightly passed the order on
19.5.1994 to proceed ex parte under the
aforesaid Rule. The next date fixed for
hearing after 19.5.1994 was 15.7.1994.

7. Order IX Rule 7 C.P.C. reads as
under :

"Procedure where defendant appears
on day of adjourned hearing and assigns
good cause for previous non-appearance -
where the court has adjourned the hearing
of the suit ex parte and the defendant, at or
before such hearing appears and assigns
good
cause
for
his
previous
nonappearance, he may, upon such terms as
the court directs as to costs or otherwise,
be heard in answer to the suit as if he
appeared on the day fixed for his
appearance."

8. The application under Order IX
Rule 7 C.P.C. as it is evident from the
reading of the aforesaid Rule, can be filed
at or before the next date fixed for hearing.
6 All. Smt. Kusum Vs. Smt. Bhawana & Ors.
297
In
the
instant
case
admittedly
the
application under Order IX Rule 7 C.P.C.
was filed by the petitioner on 6.8.1994. It
was the date after next date fixed under
Order IX Rule 6 C.P.C."

28.

From
the
reasons
given
subsequently, it would be apparent that the
aforesaid judgment of the learned Single
Judge overlooks the law laid down by the
Supreme Court in Arjun Singh (supra) and
is per incuriam.

29. Under Order 9 Rule 6(1)(a), the
court is empowered to proceed with the
hearing of a suit ex-parte if the plaintiff
appears and the defendant does not appear
when the suit is called on for hearing and it
is proved that summons was duly served on
the defendant. By virtue of Order 9 Rule 7,
if the defendant appears on the next date
fixed in the case and assigns good cause for
his previous non-appearance, he may be
heard in answer to the suit as if he had
appeared on the day fixed for his
appearance.