# Smt. Sudesh and others v. Addl. District Judge, Kanpur Dehat and others

- **Citation:** (2006) 1 ILRA 543
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-04
- **Case number:** Civil Misc. Writ Petition No.27915 of 2002
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sudesh-and-others-v-addl-district-judge-kanpur-dehat-and-others-40789
- **Pages:** 5

## Headnote

Code of Civil Procedure 1808 Order 9
rule
13-setting
aside
the
ex-parte
decree-suit for cancellation of sale deed
and
permanent
injection-petitioners
claiming possession over the disputed
plat for the last 20 years from the date of
execution
of
sale
seed-Notice
send
through ordinary Post-service through
advocate commission-both the witnesses
mentioned in the report and found
emical to petitioner-held-view taken by
the courts below highly technical-court
should decide the case on merit rather
technical
basis-without
sending
the
Notice
through
registered
postpublication in news paper-held-service
not sufficient-direction issued decide the
case
on
merit
as
expeditiously
as
possible without granting unnecessary
adjournments.

Held: Para 4

From a perusal of the record it is clear
that notices were actually never served
on the petitioners. The notices were only
sent by ordinary process and not even by
registered process. It was thereafter
that notices were sent through Advocate
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Commissioner who reported that in
presence
of
two
witnesses
the
petitioners refused to accept the same.
It is the clear case of the petitioners that
the two witnesses who had been shown
in
the
report
of
the
Advocate
Commissioner were inimical towards the
petitioners as there was litigation going
on with them and as such no reliance
could have been placed on the report of
the Advocate Commissioner. It is also
improbable that even on coming to know
of a suit for cancellation of their sale
deed, the petitioners would not contest
the suit, especially when the possession
of the property in dispute had been
handed over to the petitioners on which,
as claimed by the petitioners, they have
already
made
constructions.
The
endeavour of the courts of law should be
to decide the case on merits after giving
sufficient opportunity to the parties and
hearing them. In the present case,
although
technically
it
had
been
recorded that the service of notices on
the petitioners was deemed sufficient
but actually, from the facts, it does not
appear that the petitioners had ever
been served with the notices in the suit.
Merely because in some other case filed
against the husband of one of the
petitioners,
some
mention
of
the
pendency of the present suit was made
in a written statement, the same would
not amount to be sufficient service of
notices on the petitioners. The trial court
as well as the appellate court have taken
a very technical view of the matter. In
my opinion, in the circumstances of the
case, without the trial court having sent
notices by registered post or if still not
served, directing publication of notices in
the newspaper, the order of deeming
sufficiency
of
services
was
not
appropriate. The endeavour of the courts
should be to give the parties sufficient
opportunity to contest the case on
merits, rather than to decide the same
exparte. In such cases, the courts of law
are to take a more liberal view while
dealing with such issues and make every
effort to decide the lis between the
parties on merits, as passing of an
exparte decree, may at times, as in the
present case, amount to causing grave
injustice to a party.
Case law discussed:
2001 (92) R.D. 809
AIR 1987 SC-1353
AIR 1997 SC-1919
AIR 1996 orissa-29

Limitation Act-Section-5-Condonation of
Delay-courts
should
adopt
liberal
approach while dealing with application
for condonation of delay.

Held: Para 5

As
regards
the
application
for
condonation
of
delay
in
filing
the
application for setting aside the exparte
decree, it may be observed that in case
of exparte decree, the limitation would
begin from the date of knowledge of the
passing of the exparte decree, which in
the
present
is
20.1.1998
and
the
application was filed within four days of
the same. The Apex Court in the case of
Collector, Land Acquisition v. Mst. Katiji
A.I.R.1987 S.C. 1353 has held that "The
Legislature has conferred the power to
condon

## Text

1 All] Smt. Sudesh and others V. A.D.J., Kanpur Dehat and others
543
permission of the State Government had
been taken.

4. In such view of the matter, as the
notice itself was issued to the petitioner
after more than four years, which was in
clear contravention of the provisions of
Section 47-A of the Indian Stamp Act, no
proceedings could have been initiated
against the petitioner in pursuance of the
said notice. As such, the orders impugned
in this writ petition, which had been
passed in pursuance of the aforesaid
notice, are both liable to be quashed.

5. Accordingly, this writ petition
stands allowed. The impugned order dated
20.3.2003 passed by the respondent no. 2,
the
Deputy
Commissioner
(Stamps),
Allahabad and the order dated 28.9.2004
passed by the respondent no. 3, the
Commissioner,
Allahabad
Division,
Allahabad are quashed. There shall be no
order as to costs.

6. The amount deposited in terms of
the interim order granted by this Court
shall be refunded to the petitioner within
two months from the date of filing of an
application by the petitioner before the
respondent no. 2, alongwith a certified
copy of this order. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2006

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No.27915 of 2002

Smt. Sudesh and others ...Petitioners
Versus
Addl. District Judge, Kanpur Dehat and
others

...Respondents

Counsel for the Petitioners:
Sri Faujdar Rai
Sri Chandra Kr. Rai

Counsel for the Respondents:
Sri M.A. Siddiqui
Sri I.M. Khan

Code of Civil Procedure 1808 Order 9
rule
13-setting
aside
the
ex-parte
decree-suit for cancellation of sale deed
and
permanent
injection-petitioners
claiming possession over the disputed
plat for the last 20 years from the date of
execution
of
sale
seed-Notice
send
through ordinary Post-service through
advocate commission-both the witnesses
mentioned in the report and found
emical to petitioner-held-view taken by
the courts below highly technical-court
should decide the case on merit rather
technical
basis-without
sending
the
Notice
through
registered
postpublication in news paper-held-service
not sufficient-direction issued decide the
case
on
merit
as
expeditiously
as
possible without granting unnecessary
adjournments.

Held: Para 4

From a perusal of the record it is clear
that notices were actually never served
on the petitioners. The notices were only
sent by ordinary process and not even by
registered process. It was thereafter
that notices were sent through Advocate
544 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Commissioner who reported that in
presence
of
two
witnesses
the
petitioners refused to accept the same.
It is the clear case of the petitioners that
the two witnesses who had been shown
in
the
report
of
the
Advocate
Commissioner were inimical towards the
petitioners as there was litigation going
on with them and as such no reliance
could have been placed on the report of
the Advocate Commissioner. It is also
improbable that even on coming to know
of a suit for cancellation of their sale
deed, the petitioners would not contest
the suit, especially when the possession
of the property in dispute had been
handed over to the petitioners on which,
as claimed by the petitioners, they have
already
made
constructions.
The
endeavour of the courts of law should be
to decide the case on merits after giving
sufficient opportunity to the parties and
hearing them. In the present case,
although
technically
it
had
been
recorded that the service of notices on
the petitioners was deemed sufficient
but actually, from the facts, it does not
appear that the petitioners had ever
been served with the notices in the suit.
Merely because in some other case filed
against the husband of one of the
petitioners,
some
mention
of
the
pendency of the present suit was made
in a written statement, the same would
not amount to be sufficient service of
notices on the petitioners. The trial court
as well as the appellate court have taken
a very technical view of the matter. In
my opinion, in the circumstances of the
case, without the trial court having sent
notices by registered post or if still not
served, directing publication of notices in
the newspaper, the order of deeming
sufficiency
of
services
was
not
appropriate. The endeavour of the courts
should be to give the parties sufficient
opportunity to contest the case on
merits, rather than to decide the same
exparte. In such cases, the courts of law
are to take a more liberal view while
dealing with such issues and make every
effort to decide the lis between the
parties on merits, as passing of an
exparte decree, may at times, as in the
present case, amount to causing grave
injustice to a party.
Case law discussed:
2001 (92) R.D. 809
AIR 1987 SC-1353
AIR 1997 SC-1919
AIR 1996 orissa-29

Limitation Act-Section-5-Condonation of
Delay-courts
should
adopt
liberal
approach while dealing with application
for condonation of delay.

Held: Para 5

As
regards
the
application
for
condonation
of
delay
in
filing
the
application for setting aside the exparte
decree, it may be observed that in case
of exparte decree, the limitation would
begin from the date of knowledge of the
passing of the exparte decree, which in
the
present
is
20.1.1998
and
the
application was filed within four days of
the same. The Apex Court in the case of
Collector, Land Acquisition v. Mst. Katiji
A.I.R.1987 S.C. 1353 has held that "The
Legislature has conferred the power to
condone delay by enacting S.5 of the
Indian Limitation Act of 1963 in order to
enable the courts to do substantial
justice to parties by disposing of matters
on ''merits'." While laying down the
guidelines for deciding such application,
it was held that the Courts should adopt
a liberal approach in the matter while
dealing with application for condonation
of delay.

(Delivered by Hon'ble Vineet Saran, J.)

1. Original suit no. 729 of 1995 was
filed on 12.10.1995 by Respondent no.3
Jamin Raja Khan against the petitioners
for a decree of permanent injunction and
cancellation
of
sale
deed
dated
29.12.1994 passed in favour of the
petitioners. An exparte decree dated
1.5.1997 was passed by the trial court
1 All] Smt. Sudesh and others V. A.D.J., Kanpur Dehat and others
545
decreeing the suit of the plaintiff. Then on
24.1.1998, the petitioners (defendants)
filed an application under order 9 Rule 13
C.P.C. for setting aside the exparte decree
alongwith application under section 5 of
the Indian Limitation Act. The application
for condonation of delay, as well as the
application for setting aside the exparte
decree, were both rejected by the Civil
Judge vide his order dated 8.3.2001. Misc.
Appeal No.25 of 2001 filed by the
petitioners against the said order has also
been dismissed by the Additional District
Judge vide his order dated 16.5.2002.
Aggrieved by the aforesaid orders, this
writ petition has thus been filed with the
prayer for quashing the orders dated
16.5.2002
and
8.3.2001
passed
by
Respondent nos. 1 and 2 respectively, as
well as the exparte Judgment and Decree
dated 1.5.1997 passed by the Respondent
no.2.

2. I have heard Sri Chandra Kumar
Rai on behalf of the petitioners and Sri
M.A.Siddiqui on behalf of the contesting
respondent no.3 and have perused the
record. Counter and rejoinder affidavits
have been exchanged and with the
consent of the learned counsel for the
parties, this writ petition is being disposed
of at the admission stage itself.

3. In the application filed under
Order 9 Rule 13 C.P.C., the petitioners
have categorically stated that they had no
knowledge of the exparte decree till
20.1.1998 when the Respondent no.3 had,
for the first time, come to disturb the
possession of the petitioners over the
property
in
dispute.
Immediately
thereafter on 22.1.1998, the petitioners
contend, they got the file inspected and on
24.1.1998 filed the application for setting
aside the exparte decree on 24.1.1998.
The case of the petitioners is that after the
execution
of
the
sale
deed
dated
29.12.1994, they had come in possession
of the property in dispute and that the
plaintiff-respondent no.3 is basing his
claim solely on the basis of some
agreement executed in his favour in the
year 1975, which was nearly 20 years
prior to the execution of the sale deed in
favour of the petitioners. The Civil Judge
rejected the applications primarily on the
ground that service of notice was deemed
to be found sufficient. Although the
notices were never actually served on the
petitioners,
but
since
allegedly
the
petitioners refused to accept the notices,
the same were deemed to have been
served on the petitioners. It was also
mentioned by the trial court that in a
written statement filed in some other suit,
in which the husband of one of the
petitioners was a party, a mention of the
suit for cancellation of the sale deed had
been made and thus also it would be
deemed
that
the
petitioners
had
knowledge of the pendency of the suit. As
such, the trial court refused to condone
the delay in filing the application under
Order 9 Rule 13 C.P.C. and thus rejected
both the applications. The appeal filed by
the petitioners against the order of the
trial court has also been dismissed on
similar grounds.

4. From a perusal of the record it is
clear that notices were actually never
served on the petitioners. The notices
were only sent by ordinary process and
not even by registered process. It was
thereafter that notices were sent through
Advocate Commissioner who reported
that in presence of two witnesses the
petitioners refused to accept the same. It
is the clear case of the petitioners that the
two witnesses who had been shown in the
546 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
report of the Advocate Commissioner
were inimical towards the petitioners as
there was litigation going on with them
and as such no reliance could have been
placed on the report of the Advocate
Commissioner. It is also improbable that
even on coming to know of a suit for
cancellation of their sale deed, the
petitioners would not contest the suit,
especially when the possession of the
property in dispute had been handed over
to the petitioners on which, as claimed by
the petitioners, they have already made
constructions. The endeavour of the
courts of law should be to decide the case
on
merits
after
giving
sufficient
opportunity to the parties and hearing
them. In the present case, although
technically it had been recorded that the
service of notices on the petitioners was
deemed sufficient but actually, from the
facts, it does not appear that the
petitioners had ever been served with the
notices in the suit. Merely because in
some other case filed against the husband
of one of the petitioners, some mention of
the pendency of the present suit was made
in a written statement, the same would not
amount to be sufficient service of notices
on the petitioners. The trial court as well
as the appellate court have taken a very
technical view of the matter. In my
opinion, in the circumstances of the case,
without the trial court having sent notices
by registered post or if still not served,
directing publication of notices in the
newspaper,
the
order
of
deeming
sufficiency
of
services
was
not
appropriate. The endeavour of the courts
should be to give the parties sufficient
opportunity to contest the case on merits,
rather than to decide the same exparte. In
such cases, the courts of law are to take a
more liberal view while dealing with such
issues and make every effort to decide the
lis between the parties on merits, as
passing of an exparte decree, may at
times, as in the present case, amount to
causing grave injustice to a party. In the
case
of
Bhagwan
Pandey
v.
III
Additional District Judge Ballia 2001
(92) Revenue Decisions 809, (which is
based on similar facts as in the present
case) where the application under Order 9
Rule 13 C.P.C. was rejected by the trial
court and the appeal against the said order
was also dismissed, this Court had set
aside the said two orders, as also the
exparte decree and directed the trial court
to proceed with the suit on merits.

5. As regards the application for
condonation of delay in filing the
application for setting aside the exparte
decree, it may be observed that in case of
exparte decree, the limitation would begin
from the date of knowledge of the passing
of the exparte decree, which in the present
is 20.1.1998 and the application was filed
within four days of the same. The Apex
Court in the case of Collector, Land
Acquisition v. Mst. Katiji A.I.R.1987
S.C. 1353 has held that "The Legislature
has conferred the power to condone delay
by enacting S.5 of the Indian Limitation
Act of 1963 in order to enable the courts
to do substantial justice to parties by
disposing of matters on ''merits'." While
laying down the guidelines for deciding
such application, it was held that the
Courts should adopt a liberal approach in
the matter while dealing with application
for condonation of delay.

6. The cases of Mst. Bhabia Devi v.
Permanand Pd. Yadav A.I.R. 1997 SC
1919 and Sidheswar Sahu v. Arakhita
Jena A.I.R. 1996 Orissa 29 as have been
relied upon by the learned counsel for the
Respondent no.3 are distinguishable on
1 All] State of U.P. V. Nepal Singh
547
facts and would have no application in the
present case.

7. In view of the aforesaid
discussion, in my view, the orders
impugned in this writ petition are liable to
be
quashed.
Accordingly,
this
writ
petition succeeds and is allowed. The
impugned orders dated 8.3.2001 and
16.5.2002 passed by the trial court as well
as the appellate court and the exparte
decree dated 1.5.1997 passed by the trial
court are all quashed. Original suit no.
729 of 1995 shall stand revived. Since the
suit is of the year 1995, it would be
desirable that the same be decided on
merits, as expeditiously as possible,
without
granting
any
unnecessary
adjournment to either of the parties.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.01.2006

BEFORE
THE HON'BLE V.M. SAHAI,J.
THE HON'BLE SHIV SHANKER, J.

Criminal Contempt Petition No. 11 of 2001

State of Uttar Pradesh
...Appellant
Versus
Nepal Singh

 ...Respondent

Counsel for the Appellant:
Sri Sudhir Mehrotra
Sri A.K. Tripathi
Sri Vijai Shanker Misra
A.G.A.

Counsel for the Respondent:
Sri R.K. Vaish
Sri Abhay Raj Singh

Contempt of Courts Act 1972-Section15-Criminal
Contempt-Forged
and
fabricate copy of F.I.R.-filed before High
Court-intentionally-for obtaining the bail
order-court found all the four ingredients
of crime-against the accused contemnerheld-the word firing in FIR deleted to
obtain
the
bail/order-amounts
to
criminal
contempt
and
concealing
material facts from this Court-liable to
be punished.

Held: Para 13 & 16

It is worthwhile to mention here that the
F.I.R. is an important document upon
which the whole prosecution case stands
if the role of firing of the accused is not
mention in the F.I.R. and subsequently
the role of accused is shown in the
statement of the prosecution witnesses
therefore, it can be deemed to be a
development of the case and in such
circumstances the benefit must to in
favour of the accused. It is further
worthwhile to mention that there are
four
ingredients
of
crime
firstly
intention, secondly preparation, thirdly
attempt and fourthly commission. In the
present case all the four ingredients are
available against the accused contemner.
Therefore, it is liable to be deemed that
the word of firing from the F.I.R. was
deleted from the copy of the F.I.R. in
order to obtain bail order from this Court
after deceiving and concealing the true
and real facts.

Considering the facts and circumstances
of the case as mentioned above, we are
of the view that the contemnor has
deliberately filed incomplete copy of the
F.I.R. in Criminal Misc. Bail Application
No.5756 of 2001, Mohan Lal vs. State of
U.P. by concealing the true and real facts
whereby
he
obstructed
in
the
administration of justice and is liable to
be punished for committing criminal
contempt under Section 12 of the
Contempt of Courts Act, 1971. In view of
this, the charge leveled against the
contemner is fully proved and he is liable
to be punished for the same.
Case law discussed:
AIR 2003 SC-3469
AIR 2003 SC-2723