# Subhash Chandra Chaturvedi v. IVth Addl. Session Judge/Spl. Judge/E.C. Act Lko & Ors

- **Citation:** (2022) 9 ILRA 709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-28
- **Case number:** Matter Under Article 227 No. 34234 of 2019
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chandra-chaturvedi-v-ivth-addl-session-judge-spl-judge-e-c-act-lko-ors-49268
- **Pages:** 24

## Headnote

Civil Law - The Constitution of India,
1952- Article 227- It is well settled that
the power under Article 227 is one of
judicial superintendence which cannot be
used
to
upset
conclusions
of
facts,
however erroneous those may be, unless
such conclusions are so perverse or so
unreasonable that no Court could have
ever
reached
them-
There
is
no
justification
for
the
High
Court
to
substitute its view for the opinion of the
Authorities /Courts below as the same is
not permissible in proceedings under
Article 226/227 of the Constitution. This
Court cannot interfere with the findings of
fact recorded by Courts below unless
there is no evidence to support the
findings
or
the
findings
are
totally
perverse. As long as they are based upon
some material which is relevant for the
purpose, no interference is called for. Even
on the ground that there is yet another
view which can reasonably and possibly
be taken, the High Court cannot interfere-
This Court having considered the facts as
pleaded by the petitioner and the private
respondents in this petition and the facts
and Law as appreciated by the learned
Trial Court and the Appellate Court, does
not filed any perversity in the appreciation
of facts by the two learned Court below or
any infirmity in the law as appreciated in
the orders impugned.

Where concurrent findings of facts have been
recorded by the courts below, then the same
cannot be interfered by the High Court under its
supervisory jurisdiction unless the said findings
of fact are either based on no evidence or are
absolutely perverse. (Para 41, 73, 75)

Petition rejected. (E-3)

Case
law/
Judgements
relied
upon/
discussed:-

## Text

_Characters 0–39,843 of 83,431. This is a partial read: ask again with offset=39843 for what follows._

9 All. Subhash Chandra Chaturvedi Vs. IVth Addl. Session Judge/Spl. Judge/E.C. Act Lko &
 Ors.
709
compromise out side the court. It is a case
of pure civil nature given criminal colour
with ulterior motive.

35. Having regard to the facts and
circumstances of the case, the FIR dated 18
April 2022 lodged by the third respondent
registered as Case Crime No. 69 of 2022
under Section 419, 420, 467, 468, 471 IPC,
P.S. Chandauli, District Chandauli is
hereby
quashed with
liberty
to
the
aggrieved party to take recourse before the
competent court with regard to the validity
of the will.

36. The writ petition is, accordingly,
allowed.

37. No order as to cost.
----------
(2022) 9 ILRA 709
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.09.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Matter Under Article 227 No. 34234 of 2019

Subhash Chandra Chaturvedi ...Petitioner
Versus
IVth Addl. Session Judge/Spl. Judge/E.C.
Act Lko & Ors. ...Respondents

Counsel for the Petitioner:
Ram Kumar Srivastava, Mohd. Aslam Khan,
Rajeev Singh

Counsel for the Respondents:
Gaurav Tripathi, Manoj Kumar, Sridhar Awasthi

Civil Law - The Constitution of India,
1952- Article 227- It is well settled that
the power under Article 227 is one of
judicial superintendence which cannot be
used
to
upset
conclusions
of
facts,
however erroneous those may be, unless
such conclusions are so perverse or so
unreasonable that no Court could have
ever
reached
them-
There
is
no
justification
for
the
High
Court
to
substitute its view for the opinion of the
Authorities /Courts below as the same is
not permissible in proceedings under
Article 226/227 of the Constitution. This
Court cannot interfere with the findings of
fact recorded by Courts below unless
there is no evidence to support the
findings
or
the
findings
are
totally
perverse. As long as they are based upon
some material which is relevant for the
purpose, no interference is called for. Even
on the ground that there is yet another
view which can reasonably and possibly
be taken, the High Court cannot interfere-
This Court having considered the facts as
pleaded by the petitioner and the private
respondents in this petition and the facts
and Law as appreciated by the learned
Trial Court and the Appellate Court, does
not filed any perversity in the appreciation
of facts by the two learned Court below or
any infirmity in the law as appreciated in
the orders impugned.

Where concurrent findings of facts have been
recorded by the courts below, then the same
cannot be interfered by the High Court under its
supervisory jurisdiction unless the said findings
of fact are either based on no evidence or are
absolutely perverse. (Para 41, 73, 75)

Petition rejected. (E-3)

Case
law/
Judgements
relied
upon/
discussed:-

1. Lawyers Cooperative Housing Society Ltd.
Agra Vs Shri Krishna Grah Nirman Samiti Limited
& ors.2002 (2) Allahabad Rent Cases 415

2. Raja Ram Gupta Vs Firm Jaiswal Iron and
Steel Works & ors., 1980 AWC 110

3. Smt. Vinod Rani Lamba & anr. Vs Baburam
Yadav ,2017 (135) RD 427

4. Smt. Sudesh & ors. Vs A.D.J. & ors. 2006 (1)
ARC 387
710 INDIAN LAW REPORTS ALLAHABAD SERIES
5. G.P. Srivastava Vs R K Raizada & ors.2000 (3)
SCC 54

6. Ashraf Vs Kailash Prasad & anr. 2016 (34)
LCD 3096

7. Puwada Venkateswara Rao Vs Chidamna
Venkata Ramana AIR 1976 Supreme Court 869

8. Auto Cars Vs Trimurti Cargo Movers (Pvt.)
Ltd. 2018 (140) RD 411

9. Smt. Sahzavin Vs A.D.J. Alld, 2013 SCC online
Allahabad 13500

10. D.N. Banerjee Vs PR Mukherjee, AIR 1953
SC 58

11. Waryam Singh Vs Amarnath AIR 1954 SC
215

12. Shalini Shyam Shetty Vs Rajendra Shankar
Patil 2010 (8) SCC 329

13. Garment Craft Vs Prakash Chand Goel 2022
SCC Online SC 29

14. Gurcharan Singh Vs Sujit Singh 2014 (2)
SCC 140

15. Sunil Poddar Vs U.B.I, 2008 (2) SCC 326

16. Parimal Vs Veena @ Bharti 2011 (3) SCC 545

17. St. of M.P Vs Heera Lal & ors. 1996 (7) SCC 523

18. Rahul S Shah Vs Jinendra Kumar Gandhi &
ors. 2021 (6) SCC 418

19. St. of M.P Vs Hira Lal & Ors.(1996) 7 SCC
Page 523

20. Sunil Poddar Vs U.B.I, 2008 (2) SCC 326

21. Sulaiman Vs IV A.D.J., Muzaffarnagar ,1998
(2) JCLR 1052

22.
Deepak
Banerjee
Vs
Smt.
Lilavati
Chakraborty AIR 1987 Supreme Court 2055

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. This petition under Article 227 has
been filed challenging the order dated 22
May 2006 which is an ex-parte decree in
Regular Suit No.294 of 2013: Smt. Shashi
Mishra and others versus Subhash Chandra
Chaturvedi, and also the Order passed on
application under Order IX Rule 13 dated
27.05.2009 rejecting the same, and the
order passed in Appeal thereafter dated
27.11.2019; with a further prayer directing
the Trial Court not to proceed in Execution
Case No. 15/2007.

2. It is the case of the petitioner in his
petition that his father was residing in
Khasra No. 2188/2/3 Village Kanausi by
raising a hut over it. Later on the petitioner
built a two room house in 1986 and when
the land came under Nagar Nigam it was
allotted House No. 561/234 New Sindhu
Nagar, P.S. Krishnanagar, Lucknow and he
has been paying house tax to the Nagar
Nigam since August 1986. One Rajendra
Malviya filed Regular Suit No.49/1994
against Om Prakash Mishra the predecessor
in interest of the private respondents, for
possession and demolition, alleging therein
that land of Khasra No. 2188/2/3 Village
Kanausi belonged to him, and that Om
Prakash Mishra had forcibly built his house
over it. During the pendency of the Suit
Rajendra Malviya executed a sale deed of
the land in dispute in favour of Om Prakash
Mishra on 09.11.1995. Consequently, the
Suit was dismissed on 06.02.2009.

3. Om Prakash Mishra constructed a
house adjacent to the house of the
petitioner and the Nagar Nigam allotted
House No. 561/232 in New Sindhu Nagar,
PS Krishna Nagar, Lucknow. Om Prakash
Mishra
and
others
started
creating
disturbance in the peaceful possession of
the petitioner over his House No. 561/234
and therefore the petitioner filed Regular
9 All. Subhash Chandra Chaturvedi Vs. IVth Addl. Session Judge/Spl. Judge/E.C. Act Lko &
 Ors.
711
Suit No. 144/1999 in the Court of Civil
Judge (Havali) Lucknow. When Om
Prakash Mishra could not succeed in his
design, Shashi Misra his daughter in law
and his sons filed Regular Suit No.
294/2003 praying for a decree of eviction
and damages to the tune of Rs.32,000/-
with interest on 28.07.2003, in the Court of
Civil Judge (Senior Division) Malihabad,
Lucknow. In the said Suit the petitioner was
arrayed as a defendant and a wrong house
number was mentioned namely House No.
561/232 - A , New Sindhu Nagar. The
opposite parties managed to get an ex-parte
decree on 22.05.2006 on the ground that
summons were served on the defendant
through publication and he had not
appeared nor filed his written statement.

4. On coming to know of the ex-parte
decree the petitioner filed paper number 60 C
Application under Order IX Rule 13 CPC
along with affidavit for setting aside ex parte
decree dated 22.05.2006. In the affidavit the
petitioner stated that he was the owner of
House No. 561/234 New Sindhu Nagar,
Lucknow and that the Respondents with a
view to usurp the house had mentioned the
wrong address and no service of summons
was affected upon him. The petitioner had
never refused to take notice/summons and if
there was any evidence of receiving such
notice the same was forged. The newspaper
in which allegedly the notice was published
was also not circulated in the area he resided.

5. The Learned Trial Court rejected the
application on the ground that knowledge of
the Suit was derived by the petitioner through
another Suit and on such presumption treated
notice to be served on the petitioner.

6. It has been submitted that Rule 17,
Rule 19 -A and Rule 20 of Order V CPC
were violated.

7. Against the order 27.05.2009 the
petitioner preferred Miscellaneous Civil
Appeal No. 81 of 2009: Subhash Chandra
Chaturvedi versus Shashi Misra and
others, in the Court of District Judge which
was also rejected on 7.11.2009 by the
Appellate Court. The Appellate Court
observed that under Proviso to Order IX
Rule 13 C.P.C., since the petitioner had
knowledge about the pendency of Regular
Suit No. 294 of 2003 in the Court of Civil
Judge
(Senior
Division),
Malihabad,
Lucknow, the ex-parte decree could not be
set aside even on the ground of any
irregularity in the service of summons. The
petitioner could not show any title to the
property
in
dispute.
Moreover,
the
Petitioner was still residing in House No.
561/232A and not in House No.561/234.

8. In the Short Counter Affidavit filed
by the Opposite Parties No. 2 to 7, it is the
case of the private respondents that Om
Prakash Misra the respondent no. 6, and the
predecessor in interest of all the other
private respondents, had constructed a
house adjacent to the property of Malviyas
and it was numbered 561/232, New Sindhu
Nagar, and he entered into negotiations
with Rajendra Malviya for transfer of 3200
ft.2 of Khasra Plot No.2188/ 2/3 of land
towards the front of house constructed by
Om Prakash Misra. Om Prakash Mishra
had already been in possession of such part
of land and had constructed two rooms, one
tin shed covered kitchen, one small
bathroom and one small latrine on the said
land belonging to the Malviyas. Rajendra
Malviya
however
filed
a
Suit
for
Declaration, Demolition and Injunction
before the Court of Munsif Lucknow
namely R.S. no. 81/1994 against Om
Prakash Mishra in respect of such land.
During pendency of the said suit the
plaintiff, Rajendra Malviya, approached
712 INDIAN LAW REPORTS ALLAHABAD SERIES
Om Prakash Mishra for settlement of the
matter and obtained permission from the
Court to transfer 3200 ft.2 of land in favour
of Om Prakash Mishra by executing a sale
deed in his favour. The Court of X Addl
District Judge allowed such Application on
20.05.1995, in MCA No. 81/1994. The Sale
deed was executed on 04.11.1995 for 3200
ft.2 of land, part of Khasra No. 2188/2/3 in
Village Kanausi which was already in
occupation of Om Prakash Mishra since
1984 and on which he had raised
constructions. There were certain mistakes /
inaccuracies in the Sale deed dated
04.11.1995 and a Supplementary Sale deed
dated 19.09.1996 was executed by Shri
Rajendra
Malviya
later
on.
The
constructions made on such 3200 ft.2 of
land were assessed by the Nagar Nigam
Lucknow on 10.06.1996 and given New
No. 561/232-A. The answering respondents
have been depositing House Tax and other
taxes as required by the Nagar Nigam with
regard to House No. 561/232 and House
No. 561/232A.

9. It has been further stated that the
petitioner is a distant relative of the private
respondents and in the 1980s he had
approached the Respondent No.6 for a place
to live. Initially he was accommodated with
the private respondents in their own House
No. 561/232. Later on Om Prakash Mishra
had constructed the two-room set on part of
Khasra 2188/2/3 belonging to Malviyas and
the petitioner was given license to live in the
said premises. The petitioner in order to
usurp the property of the answering
Respondents had filed Regular Suit No. 144
of 1999 claiming to be the owner in
possession of House No. 561/234, New
Sindhu Nagar, Lucknow and praying for
Permanent
Injunction
to
restrain
Om
Prakash
Mishra
the
defendant
from
dispossessing the petitioner.

10. A Written Statement was filed by
Om Prakash Mishra to the effect that the
plaintitff was living as a licensee in the
house of Om Prakash Mishra and in
paragraph
10
it
was
categorically
mentioned that the petitioner had no title
whereas the sons of Om Prakash Mishra
had title and had filed the suit for
possession against the plaintiff in the court
of Civil Judge, Malihabad, Lucknow as a
Regular Suit No. 294/2003 which was fixed
for hearing on 08.08.2003. A Replication
was filed by the plaintiff/ petitioner where
in paragraph 5 he had admitted to having
knowledge of such Suit for eviction being
filed against him and pending in the Court
of Civil Judge, Malihabad Lucknow. Later
on the petitioner moved an application for
withdrawal of Regular Suit No. 144 of
1999, and by an order dated 16.11.2017 the
Court of Additional Civil Judge (Senior
Division)
Lucknow,
allowed
such
application with special cost of Rs.10,000.
Om Prakash Mishra had revoked the
license of the plaintiff/ petitioner but the
petitioner failed to vacate the house and
Smt. Shashi Misra widow of Vimal Kishore
Mishra along with other sons of late Om
Prakash Mishra had filed the Suit for
eviction and in the Plaint in Regular Suit
No. 294 of 2003 in paragraph 16 a mention
was made of Regular Suit No. 144 of 1999
being filed by the petitioner against them.

11. In Regular Suit No. 294 of 2003
the Trial Court passed an order on
28.07.2003 for registration of the suit and
fixed the date of 24.09.2003 for filing of
written
statement
and
the
date
of
01.10.2003 for framing of issues. Summons
were issued. On 01.10.2003 the plaintiffs
were directed to take steps both ways
within seven days. The Process Server had
tried to serve summons upon the petitioner
on 19.10.2003. He was not available in the
9 All. Subhash Chandra Chaturvedi Vs. IVth Addl. Session Judge/Spl. Judge/E.C. Act Lko &
 Ors.
713
house. His wife read the summons and
returned the same to the Process Server
saying that she cannot accept it as her
husband was not in the house. She refused
to let the Process Server affix the summons
on the main door of the house. The Process
Server recorded these developments in the
presence of two witnesses of the locality
SarvaShri
Shiv
Shankar
Shukla
and
Radheshyam Shukla. Thus summons were
duly served under Order V Rule 15 CPC. A
Copy of the report of the Process Server is
annexed as C.A. 11 to the Short Counter
Affidavit.

12. Even Notice by Registered Post
was offered by the Postman to the family
member of the petitioner who refused to
take the envelope and the Postman returned
the same with the endorsement "Lene Se
Inkar kiya Preshak Ko wapas ho". A copy
of the endorsement on the envelope written
by the Postman is annexed as annexed C.A.
12 to the Short Counter Affidavit.

13. On 18.12.2003 the plaintiffs filed
application under Order V Rule 20 C.P.C.
numbered as paper No.C-19. The Court
allowed the said application and directed
steps to be taken for publication within
seven days. It is the case of the private
respondents that there was no option with
the plaintiffs to select a newspaper. The
office of the concerned court gets the
summons published in a newspaper in a
routine manner at the cost of the plaintiffs.
Cost was deposited by the plaintiffs and the
summons were accordingly published in
the daily newspaper "Aaj ki report"
published from Lucknow on 11.01.2004. It
is a newspaper circulating in the locality of
the petitioner.

By an order dated 17.02.2004 in
Regular Suit No. 294 of 2003, the Trial
Court treated the summons to be duly
served
upon
the
defendant
through
publication under Order V Rule 20 CPC,
and directed the matter to proceed ex parte.

14. Thereafter the matter was heard
and evidence taken ex parte, and decreed
on 22.05.2006, directing the petitioner to
vacate the property in dispute within two
months and to hand over possession to the
plaintiffs and to pay cost / damages of
Rs.32,000/- for illegal occupation thereof
along with interest at the rate of 8% till
actual handing over of possession.

15. Being aggrieved by the ex-parte
judgement and order dated 22.05.2006, the
petitioner filed an application under Order
IX Rule 13 C.P.C. on 26.07.2006 by saying
that the summons were not served upon
him. The answering respondents filed their
objections on 04.11.2006 wherein mention
was made of paragraph 10 of the Written
Statement filed in Regular Suit No. 144 of
1999 and paragraph 5 of the Replication
where the petitioner had admitted that he
had knowledge of Regular Suit No. 294 of
2003 having been filed and being fixed for
hearing on 08.08.2003 in the court of Civil
Judge (Senior Division) Lucknow. The
objections of the private respondents also
relied upon the report of the Process Server
paper No. D - 17 /1 and publication of
summons in the newspaper on 11 January
2004.

16. It has been submitted that the
petitioner had made manipulation in the
record of Regular Suit No. 144 of 1999
pertaining to the Court of Civil Judge
(Havali) Lucknow by interpolating the
word "not" in paragraph 5 of the
Replication and he applied for certified
copy of the Replication on 10.10.2007 and
filed the certified copy of the interpolated
714 INDIAN LAW REPORTS ALLAHABAD SERIES
Replication in the Court of Trial judge
through
covering
application
dated
24.10.2007. However, even before such
interpolation could be made the private
respondents
had
already
obtained
a
certified copy of the Replication on
13.07.2006. The private respondents filed
their Objections on 29.10.2007 specifically
mentioning manipulation made by the
petitioner in the Replication.

17. The Court of Civil Judge (Senior
Division) Malihabad, Lucknow rejected the
application under Order IX Rule 13 CPC
on 27.05.2009, by observing that the
petitioner had knowledge of the pendency
of Regular Suit No. 294 of 2003, through
Written Statement filed by the answering
respondents in Regular Suit No. 144 of
1999 as was admitted by the petitioner in
the Replication filed in Regular Suit No.
144 of 1999. The Trial Court also
categorically recorded at internal page 3 of
the order that the counsel for the petitioner
had made submissions that in paragraph 5
of the Replication the word "not" had been
mentioned so as to buttress the point that he
did not have knowledge of the pendency of
Regular Suit No. 294 of 2003, but the Trial
Court rejected such argument by saying
that the petitioner had full knowledge about
the pendency of Regular Suit No. 294 of
2003, but he chose wilfully not to
participate in the proceedings which
indicated gross negligence on his part.

18. In the Rejoinder Affidavit filed by
the petitioner is is stated that he is the
owner of House No.561/234 New Sindhu
Nagar since 1981 which is built upon Gram
Sabha land Khasra No.2193/3(sa) and not
upon Khasra No.2188/2/3 Village Kanausi.
The house was assessed for the first time
on 21.08.1986 and he has been paying
House Tax ever since. The respondents had
sent notice of Regular Suit No.294 of 2003
at the wrong address mentioning the same
as House No.561/232 -A. In fact House
No.561/232 and House No.561/232 - A are
both one and the same where the private
respondents reside and therefore they were
able to manage the report of the Process
Server and the Postman. Since incorrect
address of his house was shown it cannot
be said that the petitioner was ever served
in accordance with Order V CPC. Also, the
publication in ''Aaj Ki Report' which is not
a widely circulated newspaper in the area
where the petitioner is residing did not
comply with the provisions of Order V
Rule 20 CPC.

19. It has also been stated that
Rajendra Malviya had filed Suit for
Declaration, Demarcation and Injunction
against Daya Shankar Agnihotri and Om
Prakash Mishra in respect of 3200 Sqft. of
land
of
Khasra
No.2188/2/3
Village
Kanausi in collusion with the defendants,
and the Regular Suit No.49 of 1994 has
been dismissed by the Civil Judge (Junior
Division), South, Lucknow on 06.02.2009
as Rajendra Malviya failed to prove his
ownership over the land in dispute. In case
Rajendra Malviya had no ownership over
the land in dispute, then subsequent
purchaser that is the private Respondent
Nos.2 to 7 also have no right. The house of
the petitioner exists over Gram Sabha Land
No.2193/3-(sa) and the private respondents
are trying to dispossess the petitioner in the
garb of sale deed of land Khasra
No.2188/2/3.

20. It has also been mentioned in
Paragraph-10 of the Rejoinder that when
the private respondents had filed Caveat
Application to oppose the present petition
they had shown House No. 561/234 New
Sindhu Nagar, as the address of the
9 All. Subhash Chandra Chaturvedi Vs. IVth Addl. Session Judge/Spl. Judge/E.C. Act Lko &
 Ors.
715
petitioner which makes it evident that the
private respondents know the correct
address
of
the
petitioner
and
had
deliberately mentioned incorrect address in
Regular Suit No.294 of 2003 so that notice
could not be served upon the petitioner and
the petitioner was unable to oppose the said
suit which was decreed ex parte.

21. In the Supplementary Counter
Affidavit filed by the private respondents it
has been mentioned that the petitioner has
failed to file any copy of any Sale Deed or
Title Deed to indicate the ownership of
House No.561/234. In the Khatauni of
1383-1388 Fasli of Khasra No.2193/3-(sa)
there is no mention of the petitioners' name
as
the
land
belongs
to
the
Gram
Sabha/Nagar Nigam. Khasra No.2193/3 -
(sa) has no concern with the dispute as the
house in dispute is situated on Khasra
No.2188/2/3.
The
petitioner
had
fraudulently shown an incorrect House
Number in the self assessment of House tax
and this fact has been found in the enquiry
made by the Nagar Nigam Lucknow on the
complaint made by the private respondents.
It has come out in the proceedings initiated
by Nagar Nigam Lucknow that there is no
House No.561/234. In fact it is House No.
561/232 where the private respondents
reside and House No.561/232-A, where the
petitioner resides. House No.561/232 has
been given a new number later on by the
Nagar Nigam as House No.561/389, which
is recorded in the name of sons of Om
Prakash Mishra. The petitioner is still
residing
in
House
No.
561/232-A,
belonging to the private respondents.

22. In the Supplementary Rejoinder
Affidavit filed by the petitioner on
27.01.2020, the facts as mentioned in the
Rejoinder Affidavit earlier have been
reitereated and it has been stated that the
house of the petitioner is situated on Gram
Sabha Land 2193/3-(sa) in Village Kanausi
and was assessed in the year 1986 while the
so-called Sale Deed of land purchased from
Malviya
brothers
by
the
private
respondents is of the year 1995 for part of
Plot No. 2188/2/3 at Kanausi . It is clear
from the same that the property purchased
by the Respondents is some other property
and has no concern with the house of the
petitioner which is numbered as 561/234.
True copies of House Tax bills of various
years of House No. 561/234 in the name of
Subhash Chandra Chaturvedi have been
filed as Annexures to the Supplementary
Rejoinder Affidavit.

23. The parties have filed second
supplementary counter affidvait and second
supplementary rejoinder affidavit, but this
Court finds it unnecessary to refer to the
same as they merely reiterate whatever has
been said in their pleadings earlier.

24. It has been argued by the learned
Senior Counsel appearing for the petitioner
that the notice that was published in
newspaper "Aaj ki Report" cannot be said
to be a proper notice as it relates to date of
filing objections on the application for
Interim Injunction in Regular Suit No. 294
of 2003 as 10.02.2004, and date of disposal
of such objections as 17.02.2004, and only
mentioned that in case of failure to appear
and file Objections, the application for
Interim Injunction shall be heard and
decided ex parte.

25. It has been argued by Sri Mohammed
Arif Khan that the newspaper Aaj ki Report
is an evening newspaper which is not
known to be circulated in the locality where
the disputed house is situated, hence it
cannot be said that due compliance had
been made of Order V Rule 20. He has
716 INDIAN LAW REPORTS ALLAHABAD SERIES
referred to C.A. 11 which is the Process
Server's Report which states that he had
gone to the House No. 561/232-A, New
Sindhu Nagar, where he found Usha
Chaturvedi wife of the defendant/petitioner
and tried to serve a copy of the application
for stay upon her on 19.10.2003, but after
reading the same it was returned by her
saying that her husband was not in the
house and when the Process Server tried to
affix it she did not allow him to do so and
such refusal was in the presence of two
witnesses.

26. The Learned counsel for the
petitioner has also placed reliance upon a
Coordinate Bench decision in Lawyers
Cooperative Housing Society Limited
Agra Vs. Shri Krishna Grah Nirman
Samiti Limited and others reported in
2002 (2) Allahabad Rent Cases 415; where
the Coordinate Bench considered the
provisions of Order V Rule 20 and Order
IX Rule 13 and the Second Proviso added
by way of amendment in 1976. The Court
considered the fact that the Second Proviso
to Rule 13 of Order IX C.P.C. was added
by U.P. Amendment in C.P.C. by a
notification dated 24.07.1976, prior to the
C.P.C. Amendment Act of 1976, and it
provided that "no such decree shall be set
aside merely on the ground of irregularity
in service of summons, if the Court is
satisfied that the defendant knew, or but for
his wilful conduct would have known, of
the date of hearing in sufficient time to
enable him to appear and answer the
plaintiffs claim." This Court observed that
when the Second Proviso was added by the
Allahabad notification prior to the C.P.C.
Amendment Act 1976 and the Second
Proviso added by the C.P.C. Amendment
Act 1976 are compared, it would appear
that the words "or but for his wilful conduct
would have known the date of hearing",
occurring in the Allahabad Amendment
were purposely omitted by the C.P.C.
Amendment Act of 1976. In the Proviso
added by the C.P.C. Amendment Act of
1976, the satisfaction of the Court should
be that the defendant had the notice of the
date of hearing and had sufficient time to
appear and answer the plaintiff's claim. The
said words added in the newly added
Second Proviso clearly indicates that the
Court
should
satisfy
itself
that
the
defendant had notice of the date of hearing
and sufficient time to appear and answer
the plaintiff's claim. The Second Proviso
added by the Allahabad Amendment prior
to the 1976 Amendment Act only required
satisfaction
of
the
Court
about
the
knowledge of the defendant regarding the
pendency of the Suit and then the defendant
had to satisfy that but for his wilful
conduct, he could not have known the date
of hearing in sufficient time to enable him
to appear and answer the plaintiff's claim. It
appeared that the absolute right conferred
upon the defendant by the main Rule to
have the ex-parte decree set aside in a case
where the summons were not duly served,
in the State of U.P., had been curtailed.
According to the law prevailing in this
State this right ceased to be available to the
defendant where the defendant knew or but
for his wilful conduct would have known,
of the date of hearing in sufficient time to
enable him to appear and answer the
plaintiff's claim. Accordingly, this Court in
the case of Raja Ram Gupta Vs. Firm
Jaiswal Iron and Steel Works and Others,
1980 AWC 110; had observed that in a case
where summons have not been duly served
upon the defendant and the exact date of
hearing is not known to the defendant but
he comes to know of the proceeding well in
time and he can easily find out the date and
put in appearance and answer the plaintiff's
claim, but without any justification fails to
9 All. Subhash Chandra Chaturvedi Vs. IVth Addl. Session Judge/Spl. Judge/E.C. Act Lko &
 Ors.
717
take steps to find out the date of hearing,
the only conclusion which can be drawn
would be that but for his wilful conduct he
would have known the date of hearing in
sufficient time so as to enable him to
appear and answer the plaintiff's claim.
However, with the amendment in the C.P.C.
notified by Act No. 104 of 1976 the
legislative intent is clear.

27. The plaintiff had argued that the
objection of the Applicant in a proceeding
before
the
Assistant
Housing
Commissioner simply indicated that Suit
No. 103 of 1983 between the parties in
respect of the land in Suit was pending in
the Court of Civil Judge Agra. There was
nothing in the other side's objection to
indicate about the date of hearing of the
Suit. This showed that by receiving the
above objection the defendant had "no
notice of the date of hearing of the Suit".
Moreover irregularity in the service of
summons is a condition precedent for the
applicability of the above Second Proviso
to Order IX Rule 13. It meant that for the
applicability of the Proviso it must be
proved that there was service of summons,
but the summons were not duly served. The
Coordinate
Bench
observed
that
Irregularity is something different from
illegality.
Irregularity
contemplates
defective procedure and non-compliance of
the prescribed formalities which cannot be
of substantial nature. Illegality on the other
hand connotes contravention of the Statute
which may in some cases result in the
action
becoming
void.
Illegality
contemplates an action forbidden by law
while irregularity is mere defect in the
procedure. If this basic difference in the
two expressions is kept in mind the
expression "irregularity" in the service of
summons occurring in the Proviso added to
Order IX Rule 13 would mean the defect in
following the procedure prescribed for
service of summons, such as, non-fixation
of the copy of the summons at the outer
door of the defendants' house in case of his
refusing to take the summons. However, if
the Court finds that the defendant was not
served at all then it would be another case
altogether. The Court observed that the
newspaper "Aaj ka Hungama" in which the
summons were allegedly published was not
a daily newspaper, and had no circulation
in the locality in which the defendant was
last known to have actually and voluntarily
resided or carried on business or personally
worked for gain. As such, for taking the
benefit of Rule 20 Subrule 1-A Order V
C.P.C., the plaintiff had to prove that
service by advertisement was affected in a
daily newspaper. If the newspaper was not
"daily newspaper" it was against the
provisions of the above Rule and amounted
to illegality in the service of summons.
Therefore service by advertisement in the
newspaper was not in accordance with the
law and therefore illegal.

28. The Coordinate Bench of this
Court had held that there was no service of
summons on the defendant at all and it was
not the case of irregularity in service of
summons.
Consequently,
the
Second
Proviso added by the C.P.C. Amendment
Act 1976 was not applicable to the case.
The trial Court having found that there was
no service at all was justified in allowing
the application under Order IX Rule 13
C.P.C. and setting aside the ex parte decree.

29. The learned counsel for the
petitioner has also placed reliance upon
Smt. Vinod Rani Lamba and Another Vs.
Baburam Yadav by a Coordinate Bench of
this Court reported in 2017 (135) RD 427;
where in almost in similar circumstances,
an application under Order IX Rule 13
718 INDIAN LAW REPORTS ALLAHABAD SERIES
C.P.C. was rejected by the Trial Court. The
petitioner filed Appeal which was also
rejected by the Additional District Judge
and then writ petition was filed in this
Court challenging the two orders. The
Court observed that it was admitted that
there was no personal service of summons
and service of summons had been effected
through publication, which is a substituted
service. Within the meaning of Explanation
to Article 123 of the Limitation Act, it is
not a due service. On the basis of
publication, the presumption regarding
service was made.

30. The learned counsel for the
petitioner has also placed reliance upon a
Coordinate Bench decision is Smt. Sudesh
and Others Vs. Additional District Judge
and Others, 2006 (1) ARC 387, where this
Court observed that merely because in
some other case 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 sufficient service of summons on
the petitioners and that the Trial Court and
the Appellate Court had taken a very
technical view of the matter. The endeavour
of the Court of law should be to decide the
case on merits after giving sufficient
opportunity to the parties and hearing them.

31. The Counsel for the petitioner has
also placed reliance upon G.P. Srivastava
Vs. R K Raizada and others reported in
2000 (3) SCC 54, where the Supreme Court
observed that an ex-parte decree passed
against the defendant can be set aside upon
satisfaction of the Court that the summons
were not duly served upon the defendant or
he was prevented by any "sufficient cause"
from appearing when the Suit was called on
for hearing. In a case where the defendant
approaches the Court immediately and
within the statutory time specified, the
discretion is normally exercised in his
favour, provided the absence was not
malafide or intentional. It was observed
that for the absence of a party in the case
the other side can be compensated by
adequate costs and on such other terms and
conditions as were deemed proper by the
Trial Court and the lis decided on merit.

32. Learned counsel for the petitioner
has also placed reliance upon Ashraf Vs.
Kailash Prasad and Another, 2016 (34)
LCD 3096, where a Coordinate Bench of
this Court observed that the Trial Court had
erred in law in drawing a presumption of
service merely on the basis of address
mentioned in the carbon copy of the notice.
The plaintiff had stated that notice upon the
defendant had being served by registered
post, a copy whereof was placed on record.
Such copy showed only the name of the
addressee and there was no address
mentioned in the said receipt. Service of
notice was denied by the defendant but the
Court below had drawn a presumption on
the basis that the letter was sent by
Registered Post with the correct address
mentioned on the Registered letter by the
plaintiff. This Court observed that no doubt
once registered letter has been sent which
mentioned the correct address of the
addressee, the Court will be entitled to
draw a presumption regarding due service
of that notice vide Illustration (E) and (F)
of Section 114 of the Indian Evidence Act
1872; but the presumption of service of a
letter sent by Registered Post can be drawn
only when it is shown that the Registered
letter contains a complete and correct
address of the addressee, and unless this
much is shown the question of presumption
even in respect to a letter sent by
Registered Post would not arise. Once the
addressee denies the receipt/service of
9 All. Subhash Chandra Chaturvedi Vs. IVth Addl. Session Judge/Spl. Judge/E.C. Act Lko &
 Ors.
719
Registered letter the plaintiff has the onus
to show that it was sent mentioning the
correct and complete address of the
addressee and actually served upon or
received by the addressee or he refused to
receive the same though sought to be
served upon him by the postal agent. The
Court observed that if a notice has been
sent by the landlord by Registered Post and
it is received back with an endorsement
made by an official of the Post Office
namely Postman that it was refused by the
addressee, presumption of service upon the
addressee shall be drawn unless the tenant
proves that the letter was never offered to
him by the Postman and endorsement made
thereon is not correct. The tenant's mere
denial would not be sufficient in such a
case and he will have to prove his case by
adducing relevant evidence. Such denial
can be done by making a statement on
affidavit and in such a case onus would
then shift on the landlord to prove that
refusal was by the tenant which he can
show by summoning the Postman and
adducing his oral evidence. However the
Court observed that sometimes from the
conduct
of
the
tenant
or
other
circumstances his denial even if on oath,
can justifiably be disproved by the Court
without having the Postman examined as
was observed by the Supreme Court in the
case of Anil Kumar Vs. Nanak Chandra
Verma AIR 1990 Supreme Court 1215.

33. A Bench of three judges of the
Supreme Court in Puwada Venkateswara
Rao Vs. Chidamna Venkata Ramana AIR
1976 Supreme Court 869, had held that the
presumption stood rebutted on its denial. In
this case the petitioner had denied the
service of summons or knowledge of the
Suit, thus on denial, the presumption stood
rebutted and burden shifted upon the
plaintiff/ respondent to prove that the
summons were served upon them but the
plaintiff/ respondent could not lead any
evidence in this respect. This judgement
has been followed subsequently in a Rama
Rao Vs. Raghunath Patnaik 2007 (68) ALR
464, State of West Bengal Vs. EITA India
Ltd AIR 2003 Supreme Court 4126, VS
Krishnan and others Vs. Messers Westfort
High-Tech Hospital Limited 2008 (3) SCC
363,
and
M.S.
Madhusudhanan
and
Another Vs. Kerala Kaumudi Private
Limited and Others 2004 (9) SCC 204.

34. The learned counsel for the
petitioner has also relied upon judgement
rendered by the Supreme Court in Auto
Cars Vs. Trimurti Cargo Movers (Private)
Limited reported in 2018 (140) RD 411;
where the Supreme Court considered
Section 27 of the CPC which deals with
issuance of summons to defendants. It
requires summons to be issued to the
defendants in the manner prescribed. It
referred to the Appendix-B Process No.1
issued by the Trial Court and the Supreme
Court observed that:-

"there is a specific column in the
summons where "day, date, year and time"
for the defendant''s appearance is required
to be mentioned. The legislature while
prescribing the format for summons in the
CPC wished to enable the defendant to
answer the suit filed against him/her on
specific information being given to him.
Under Order V Rule 20 (3) when service is
affected by way of publication by the orders
of the Court, the Court has to fix "time for
appearance of the defendant", as the case
may require. In our opinion this does not
dispense
with
the
requirement
of
mentioning the actual day, date, year and
time for the defendant's appearance in the
court,
because
it
is
prescribed
in
format........being a statutory requirement
720 INDIAN LAW REPORTS ALLAHABAD SERIES
prescribed in law (Code) it cannot be said
to be an empty formality. It is essentially
meant for the benefit of the defendant
because it enables the defendant to know
the exact date, time and place to appear in
the particular court, in answer to the suit
filed by the plaintiff against him. If the
specific day, date, year and time for the
defendant's
appearance
in
the
court
concerned is not mentioned in it the
summons, though validly served on the
defendant
by
any
mode
of
service
prescribed under Order V, it will not be
possible for him/her to attend the court for
want of any fixed date given for his/her
appearance".

The Court observed in Paragraph 27 -

"27. The object behind sending the
summons is essentially threefold - first, it is to
apprise the defendant about the filing of case
by the plaintiff against him; second, to serve
the defendant with the copy of the plaint filed
against him; and third, to inform the defendant
about the actual day, date, year, time and the
particular Court so that he is able to appear in
the court on the date fixed for his/her
appearance in the said case and answer the
suit either personally or through his lawyer".

35. The Court observed that the service
of summons on the defendant without
mentioning there in a specific day, date, year
and time cannot be held as "summons duly
served" on the defendants within the meaning
of Order IX Rule 13 of the Code. In other
words, such summons and the service affected
pursuant thereto cannot be held to be in
conformity with Section 27 read with the
statutory format prescribed in Appendix-B
(Process 1 and 1A) and Order V, Rule 20 (3)
of the Code.

The Supreme Court further observed
in paragraph 34 and 35 :-

"34.