Swami Bhajanand others v. Hon'ble Pankaj Purohit, J

The brief facts of the case are as that a suit for permanent injunction was filed by the plaintiff/ respondent no.1 before the Civil Judge (Senior Division), Dehradun, on 04.12.1990. The petitioner and other defendants contested the suit and filed their written statements. Over time, the case was transferred between various courts and was ultimately assigned to the Court of the IInd Additional Civil Judge (Senior Division), Dehradun, on 23.01.1997. After this transfer, no notice or intimation was ever issued to the defendants or their counsel by the concerned court. Consequently, the suit was decided and decreed ex parte on 17.12.1997. The defendants only came to know about the ex parte judgment and decree when they were served notice in 1 Execution Case No.11 of 2006. Upon gaining this knowledge, they filed objections in the execution case and also moved a restoration application under Order 9 Rule 13 read with Section 151 CPC on 12.05.2008. The trial court dismissed this application on 01.11.2010. Against this, the defendants preferred Misc. Appeal No.169 of 2010, which was allowed by the appellate court vide judgment and order dated 24.02.2010.

3. Aggrieved by the appellate court’s order dated

24.02.2010, the plaintiff/respondent no.1 filed WPMS No.523 of 2012 before this Court. The Co-ordinate Bench of this Court, vide order dated 02.05.2014, quashed the said order and granted liberty to the defendants to file a condonation application along with restoration application. In compliance with this, the defendants filed a delay condonation application, which was opposed by the plaintiff. The learned Civil Judge (Junior Division), Rishikesh, Dehradun, rejected the condonation application by order dated

16.08.2014. Against that order, the defendants filed Misc. Appeal No.96 of 2014. Subsequently, defendants also filed WPMS No.2209 of 2014 seeking expeditious disposal of the said appeal. This Court, vide order dated 23.09.2014, dismissed the writ petition as withdrawn, granting liberty to the defendants to file a civil revision. Pursuant to that liberty, the petitioner withdrew his appeal and filed Civil Revision No.126 of 2014, which was dismissed by the learned 1st Additional District Judge, Rishikesh, Dehradun, vide order dated

23.03.2015. Aggrieved by this, the petitioner has approached this Court by way of the present writ petition.

4. Learned counsel for the petitioner submits that 2 the petitioner is pursuing a matter of public interest, as the land in question is recorded in the name of a Temple. This was specifically mentioned their written statement in the original suit and in their objections filed in the execution proceedings. Moreover, it is contended that in the plaint of the original suit, the plaintiff deliberately failed to disclose the area and boundaries of the suit property. These aspects were not considered by the trial court while passing the ex parte judgment.

5. Counter affidavit has been filed by respondent no.1/1 contesting respondent/plaintiff. In the counter affidavit, it has mainly denied the averments of the writ petition and at the same time, facts of the case have been reiterated. Some authorities of the Honb’le Supreme Court have also been mentioned in support of the case. In sum and substance, it has been prayed that respondents’ predecessor in-interest has given full and complete disclosure of the property in-dispute and the petitioner is already contesting the execution. At last, the prayer, to dismiss the writ petition with costs has been made.

6. Heard learned counsel for the parties and carefully perused the material available on record. A bare perusal of the sequence of events reveals that after the transfer of the suit to the Court of IInd Additional Civil Judge (Senior Division), the defendants were not served with any notice or intimation of the said transfer as required under Rule 89-A of the General Rules (Civil),

1957. It is well-settled law that in the absence of proper service of notice of the transfer of the case from one court to other, any ex parte proceedings are liable to be set aside. The petitioner’s claim that they only came to know about the ex parte judgment in the year 2006 during 3 execution proceedings have not been controverted by cogent evidence.

7. It is equally settled that procedural lapses or delays, particularly when not arising from negligence or deliberate non-compliance, should not come in the way of substantive justice. The courts must adopt a liberal approach in condoning delays, particularly where the consequence foreclosure of hearing on merits, especially in cases involving alleged public interest or trust property. The learned courts below have failed to appreciate the gravity of non-service of notice post- transfer, which strikes at the very root of the principles of natural justice. The approach taken in mechanically rejecting the delay condonation application, without weighing the background of events, is unsustainable in law.

8. In light of the above discussions, the writ petition deserves to be allowed The writ petition is accordingly allowed, subject to the cost of Rs.50,000/- to be paid by the petitioner respondent no.1/1/plaintiff within two weeks’ from the date of production of certified copy of this order.

9. Accordingly, the order dated 23.03.2015 passed by the 1st Additional District Judge, Rishikesh, Dehradun, in Civil Revision No.126 of 2014 is hereby quashed. Consequently, the order dated 16.08.2014 passed by the Civil Judge (Junior Division), Rishikesh, rejecting the delay condonation application is also set aside. The delay condonation application No.3A1 is allowed subject to the payment of abovementioned cost. The learned trial court shall decide the restoration application under Order 9 Rule 13 CPC expeditiously 4 within three months from the date of production of certified copy of this order.

10. Pending application, if any, stands disposed of accordingly.

11. No orders as to cost. AK (Pankaj Purohit, J.) 16.10.2025 5