HIGH COURT OF UTTARAKHAND AT NAINITAL v. Mr. Ganesh Kandpal

respondent/plaintiff instituted Original Suit No. 590 of 2009 before the Court of Civil Judge (Senior Division), Dehradun, seeking a decree for recovery of ₹8,23,141.60 along with interest @ 24% per annum w.e.f. 16.12.2006. In the plaint, it was pleaded that the respondent/plaintiff, a duly incorporated company under the Companies Act, 1956 under the name and style of M/s Smriti Health Care, is engaged in the business of 1 manufacturing pharmaceutical products, and the appellant/defendant distributors/wholesalers. It was further alleged that the appellant/defendant made part-payments against invoices issued by the respondent/plaintiff, but failed to discharge the entire outstanding liability despite repeated supplies under invoices detailed in the plaint. Consequently, the aforesaid suit for recovery was instituted. Summons were issued, but could not be served upon appellant/defendant. Thereafter, vide order dated

10.09.2014, the trial court proceeded ex parte against the appellant/defendant. Subsequently, by judgment and decree dated 06.12.2017, the suit decreed parte, directing appellant/defendant to pay the decretal sum along with interest @ 24% per annum from the date of filing realization. Feeling Aggrieved, appellant/defendant moved an application under Order IX Rule 13 C.P.C. seeking to set aside the ex parte decree dated 06.12.2017, accompanied by an application under Section 5 of the Limitation Act for condonation of delay. The said application, however, came to be dismissed by the learned trial court on

30.05.2019, holding the same to be barred by limitation. Hence, this appeal.

3. Learned counsel appellant/defendant would submit impugned order dated 30.05.2019 is unsustainable in law; that, the court below failed to appreciate 2 that the ex parte decree was obtained without valid service of summons upon the appellant/defendant. It is argued that the publication was effected in a local newspaper with no wide circulation and, therefore, appellant/defendant had no knowledge of the proceedings.

4. It further appellant/defendant came to know of the ex parte decree only when one Ananya Srivastava, allegedly an employee of the respondent/plaintiff company, supplied a photocopy of the ex parte judgment and decree dated 06.12.2017; that, on inquiry, it was revealed respondent/plaintiff had deliberately mentioned the appellant/defendant’s old address (where he resided only till 2012) despite being aware of his subsequent change of residence; that, this deliberate misstatement of address deprived the appellant/defendant of the opportunity to contest the suit, resulting in the ex parte decree.

5. Learned counsel contends summons of the suit was never received by the appellant/defendant hence, non- appearance cannot be said to be deliberate or intentional; that, the decree having been passed without affording him any opportunity of hearing is vitiated in law; that, the learned trial court erred in rejecting the application under Section 5 of the Limitation Act. In support of his contention, he relied upon the judgment in the case of Collector, Land Acquisition, Anantnag and Another v. 3 Katiji and Others, (1987) 2 SCC 107, wherein the Hon’ble Supreme Court held that “sufficient cause” under Section 5 must be liberally construed so that substantial justice is not sacrificed at the altar of technicalities.

6. Per contra, learned counsel respondent/plaintiff supported the impugned order and prayed for dismissal of the appeal.

7. Heard learned counsel for the parties and perused the record.

8. Perusal of the record reveals that the appellant/defendant was not duly served with summons in the original suit. The service by way of publication in a local newspaper namely Rashtriya Sahara, which has no wide circulation cannot be treated adequate compliance with requirement of law. Consequently, the decree dated

06.12.2017 was passed without affording the appellant/defendant any opportunity of hearing.

9. The law on this aspect is well settled. In S.L. Kapoor v. Jagmohan and Others, (1980) 4 SCC 379, the Hon’ble Supreme Court held that where civil consequences ensue, failure to observe audi alteram partem vitiates the order; absence of hearing cannot be justified by saying “no prejudice was caused.” Similarly, in Canara Bank and Others and Others v. Debasis Das and Others, (2003) 4 SCC 557, it was held that nobody should be condemned unheard, and unless notice is clear and 4 adequate, the order stands vitiated.

9. In State of U.P. v. Sudhir Kumar Singh and Others, (2021) 19 SCC 706, the Apex Court reiterated that denial of hearing generally vitiates the action, and prejudice is presumed where adverse orders are passed behind the back of the affected party.

10. On the question of condonation of delay, the law equally favours a liberal approach. In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, it was held that length of delay is immaterial, acceptability of the explanation being the decisive factor. Likewise, in Improvement Trust, Ludhiana v. Ujagar Singh and Others, (2010) 6 SCC 786, it was held that when substantial justice and technicalities are in conflict, substantial justice must prevail.

11. In the facts of the present case, sufficient for condonation of delay has been satisfactorily explained. The denial opportunity of hearing, owing to lack of proper service of summons, has resulted in grave prejudice to the appellant/defendant.

12. Accordingly, the order dated 30.05.2019 passed by the learned 1st Additional Civil Judge (Senior Division), Dehradun in Regular Misc. Case No. 98 of 2019 is hereby set aside. The application under Section 5 of the Limitation Act stands allowed. The appeal is allowed to the extent that the 5 learned trial court shall now decide the appellant’s application under Order IX Rule 13 C.P.C. afresh on its own merits after hearing both parties.

13. The trial court is requested to expedite the proceedings and decide the matter strictly in accordance with law.

14. Pending applications, if any, also stand disposed of. Mam t a ( A LOK M A H RA , J.)

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