High Court · 2025

Mr. Shivam Sharm a, Advocat e for t he appellant . Mr. Siddhart ha Singh, Advocat e for t he respondent . challenging This Appeal From Order has been 2. filed, dat ed t he 01.08.2024 passed by learned Civil Judge ( Senior Division) , Vikas Nagar, Dehradun in Misc. Case No.18 of 2019, whereby applicat ion filed by t he appellant under Order 9 Rule 13 C.P.C., seeking set t ing aside of t he ex- part e decree, has been dism issed. The principal ground canvassed by 3. t he appellant in t he present Appeal is t hat t he not ice of t he suit was never served upon him and t hat at t he t im e when t he not ice cam e t o be published in t he daily newspaper, nam ely, Rasht riya Sahara, t he appellant was not at Dehradun and, consequent ly, he had no knowledge of t he pendency of t he proceedings. I t is furt her cont ended t hat t he appellant , for t he very first t im e, becam e aware of t he ex- part e decree only on 28.09.2019, when upon visit ing t he disput ed propert y, he was apprised by cert ain persons t hat t he suit had already been decreed ex- part e, whereaft er he im m ediat ely cont act ed his counsel and preferred an applicat ion under Order I X Rule 13 C.P.C. on 10.10.2019, seeking recall of t he ex- part e decree. Per cont ra,

4. counsel appearing on behalf of t he respondent subm it s t hat t he appellant has no locus learned t he t he t o assail im pugned order, st andi inasm uch as, in disput e had already been alienat ed by t he appellant regist ered sale deed dat ed t hrough a 07.08.2019, m uch prior t o t he filing of t he applicat ion under Order I X Rule 13 C.P.C. I t is furt her subm it t ed t hat subsequent purchasers of t he said propert y, being direct ly aggrieved by t he ex- part e decree, have already availed t he appropriat e legal rem edy by inst it ut ing a First Appeal before t his Court , wherein t he validit y of t he ex- part e decree is under j udicial scrut iny. Learned counsel would subm it t hat since t he right s in t he disput ed propert y now vest in t he purchasers and t heir challenge t o t he decree is already subj udice, t he present Appeal at t he appellant is m isconceived and devoid of m erit s. inst ance of t he t o t o t he respondent s

5. Heard learned counsel for t he part ies t he lengt h and carefully exam ined m at erial available on record. I t is evident t hat t he learned t rial Court , upon affording opport unit y obj ect ions and upon due appreciat ion of t he evidence placed before it , proceeded t he appellant ’s applicat ion t o dism iss under Order I X Rule 13 C.P.C. by a well- reasoned order, recording a cat egorical finding t hat t he appellant had sufficient not ice of t he proceedings, inasm uch as, t he sum m ons were duly served by t hrough regist ered post as well as publicat ion in t he daily newspaper. I n t he case of “ Parim al Vs. Veena 6. alias Bhart i” , report ed in ( 2011) 3 SCC 545, t he Hon’ble Apex Court has exam ined t he scope of Order I X Rule 13 of t he Code of Civil Procedure, 1908, relat ing t o set t ing aside of an ex- part e decree. The Court held t hat an ex- part e decree can be set aside only if t he defendant sat isfies t he Court t hat t he sum m ons had not been st rict ly, const rued duly served or t hat he was prevent ed by “ sufficient cause” from appearing when t he suit was called on for hearing. I t was em phasized t hat “ sufficient cause” m ust and m ere negligence, lack of diligence, or casual conduct cannot const it ut e sufficient cause. The Court clarified t hat if t he service of sum m ons is duly proved, t he plea of lack of knowledge is unt enable. The burden lies heavily upon t he defendant t o est ablish genuine, bona for his absence. reasons t he learned dism issed I n view of t he foregoing discussion, 7. t his Court t rial t hat Court , upon affording full opport unit y t o t he part ies and upon due considerat ion of t he m at erial available on record, has appellant ’s t he right ly applicat ion under Order I X Rule 13 C.P.C., holding t hat t he appellant had due not ice of t he proceedings by way of regist ered post as well as publicat ion t he newspaper. This Court , having given anxious subm issions and having m et iculously perused t he im pugned order, is of t he considered view t hat t he sam e does not suffer from any illegalit y, perversit y, or j urisdict ional error warrant ing int erference in appellat e j urisdict ion. considerat ion t he t o Accordingly, t he Appeal from Order

8. fails and is dism issed. ( A l o k M a h r a , J.)

25.09.2025 Arpan ARPAN JAISWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=eabb68a3895e41937c266c23964c048536544 5e3a20dddb7393398f9fe45ba3e, postalCode=263001, st=UTTARAKHAND, serialNumber=060FC17022BEAE3DE215D68D9D454C5 109CB987446351E4DF04AADAA2C2CEA66, cn=ARPAN JAISWAL