Shiv Sagar vs Counsel for Petitioner(s)

1. Heard Sri Sandeep Kumar Srivastava, the learned counsel for the petitioner, Sri Vyas Narayan Shukla, the learned counsel for the opposite party and perused the records.

2. By means of the instant petition filed under Article 227 of the Constitution of India the petitioner has challenged the validity of an order dated 24.02.2020, passed by the learned Civil Judge, Senior Division, Court No.10, Raebareli, whereby the petitioner's application under Section 5 of Limitation Act filed in Misc. Case No.10 of 2016 which was an application under Order IX, Rule 13 C.P.C. for setting aside the ex-parte decree dated 02.05.2014, passed by trial court in Regular Suit No.418 of 2012 was rejected.

3. The petitioner had challenged the aforesaid order by filing Civil Revision No.09 of 2020 which, has been dismissed by means of a judgment and order dated 20.11.2021 and the validity of the revisional order has also been challenged by the petitioner.

4. The opposite party had filed Regular Suit No.418 of 2012 against the petitioner seeking a decree of mandatory injunction and recovery of possession. The summon of the suit was issued to the petitioner/defendant and as per the service report petitioner/defendant had declined to receive the summon and, therefore, the process server affixed the summon on the house of 2 A227 No. 30567 of 2021 the petitioner and this affixation was witnessed by two persons. The learned Civil Judge held the service of the summon on the defendant to be sufficient and proceeded with the suit ex-parte and passed an ex-parte judgment and decree dated 02.05.2014.

5. On 21.01.2026 the petitioner filed an application under Order IX, Rule 13 C.P.C. for setting aside an ex-part judgment and decree dated 02.05.2014 stating that the summon of the suit was not served on the petitioner-defendant. The process server has submitted a false report dated 17.02.2012 that the petitioner had declined to receive the summon. The petitioner stated in the application that after filing of the Execution Application no.3 of 2014, he came to know about the ex-parte decree. He engaged Sri Dharmendra Yadav, Advocate who got his signatures on the vakalatnama. The petitioner gave requisite expenditure to the learned counsel engaged by him but the counsel did not do anything required in the matter and therefore the petitioner engaged another advocate Sri Atul Srivastava, who prepared and filed an application under Order IX, Rule 13 CPC without any further delay. The opposite party has filed an objection against the application inter alia stating that the petitioner has not given day to day explanation for the delay of two years in filing the application. Having put in appearance in the Execution Case No.3 of 2014 on

06.02.2015 the petitioner was aware of the ex-parte decree since the aforesaid date yet the application under Order IX, Rule 13 C.P.C. has been filed on 21.01.2016 with a delay of about a year.

6. The learned trial court rejected the application under Order IX, Rule 13 C.P.C. stating that the explanation given by the petitioner was not believable. The defendant-petitioner had full knowledge of the proceedings of the suit.

7. The revisional court also upheld the order passed by the learned trial court holding that the petitioner knowingly abstained from appearing before the learned trial court and he did not file the application under Order IX, Rule 13 CPC within the prescribed period of limitation. The opposite party has filed a counter affidavit 3 A227 No. 30567 of 2021 stating that the petitioner admits having engaged Sri Dharmendra Yadav, Advocate on 06.02.2015. The delay that has been occasioned after engagement of counsel has not been sufficiently explained. The application for condonation of delay has rightly been rejected.

8. The learned counsel for the opposite party has placed reliance upon a judgment of Hon'ble Supreme Court in the case of Vishwabandhu Vs. Sri Krishna and another: (2021) 19 SCC 549 . In the aforesaid case the summon had been served on the petitioner and he had duly signed the acknowledgment of receipt of summon and in spite of that he did not appear in the proceedings. In the present case summons have not been served upon the petitioner and he has not signed the acknowledgment of receipt of summon. The summon of the suit are said to have been served by affixation and the notice of execution case is said to have been served by post which was not received back unserved. No acknowledgment of receipt of summon or notice by the petitioner was available on record in the present case. Therefore, the facts of the present case are different from the facts of the case of Vishwabandu (Supra).

9. It is settled law that a precedent has to be read, understood and applied keeping in view the peculiar facts in the light of which the matter was decided and and a little difference in the facts of the case may bring out a world of difference in their outcomes. In the present case receipt of summon/notice had never been acknowledged by the petitioner and and it is the specific case of the petitioner that no notice or summon was ever served upon him.

10. Although, the petitioner is said to have declined to accept the summon of the suit, no step was taken for effecting the service of summon by substituted mode as envisaged in Order 5, Rule 20 C.P.C. Notice of the execution application was also not acknowledged by the petitioner and service of notice has been presumed merely because of the notice having not been received 4 A227 No. 30567 of 2021 unserved. The petitioner claims to have engaged a counsel as soon as he came to know about the execution application and to have signed a vakalatnama in favour of his counsel on 06.02.2015, but he claims that his counsel did not take suitable steps to protect his interest in the matter. Being dissatisfied about the manner in which the counsel engaged by the petitioner was dealing with the matter, he engaged another counsel who prepared an application under Order IX, Rule 13 CPC and filed the same on 21.01.2016.

11. In these circumstances, it appears that the petitioner has given a sufficient explanation for the delay caused in filing application under Order IX, Rule 13 CPC.

12. So far as the objection taken by the learned counsel for the opposite party the petitioner has not given adequate explanation for each day's delay suffice it to say that what the law requires is that the petitioner should give sufficient explanation for the delay. The requirement of explanation of each day's delay is not to be pressed so technical as to defeat the cause of justice. It is settled law that while examining cause shown for the delay in filing an application under Order IX, Rule 13 CPC the court should adopt a liberal approach so as to prevent the interests of justice rather than denial of opportunity of hearing to a litigant, more so where the litigant claims to have engaged a counsel who was not vigilant in performance of his professional duties.

13. In these circumstances, I am of the considered view that the petitioner has been able to make out a sufficient case for the delay in filing the application under Order IX, Rule 13 CPC. Accordingly, the writ petition is allowed. The impugned order dated 24.02.2020, passed by the learned Civil Judge, Senior Division, Court No.10, Raebareli and the order dated 20.11.2021, passed by learned District Judge, Raebareli are hereby set aside. The application filed by the petitioner under Section 5 of Limitation Act filed by the petitioner in Misc. Case No.10 of 2016 is allowed. The learned trial court is directed to decide the application under Order IX, Rule 13 CPC on its merits expeditiously preferably within a period of one 5 A227 No. 30567 of 2021 month from the date of production of a certified copy of this order. The ex-parte decree dated 02.05.2014, passed in Regular Suit No.418 of 2012 will not be executed till disposal of application under Order IX, Rule 13 CPC. December 8, 2025 Ram. (Subhash Vidyarthi,J.) RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Sandeep Kumar Srivastava, the learned counsel for the petitioner, Sri Vyas Narayan Shukla, the learned counsel for the opposite party and perused the records.

2. By means of the instant petition filed under Article 227 of the Constitution of India the petitioner has challenged the validity of an order dated 24.02.2020, passed by the learned Civil Judge, Senior Division, Court No.10, Raebareli, whereby the petitioner's application under Section 5 of Limitation Act filed in Misc. Case No.10 of 2016 which was an application under Order IX, Rule 13 C.P.C. for setting aside the ex-parte decree dated 02.05.2014, passed by trial court in Regular Suit No.418 of 2012 was rejected.

3. The petitioner had challenged the aforesaid order by filing Civil Revision No.09 of 2020 which, has been dismissed by means of a judgment and order dated 20.11.2021 and the validity of the revisional order has also been challenged by the petitioner.

4. The opposite party had filed Regular Suit No.418 of 2012 against the petitioner seeking a decree of mandatory injunction and recovery of possession. The summon of the suit was issued to the petitioner/defendant and as per the service report petitioner/defendant had declined to receive the summon and, therefore, the process server affixed the summon on the house of 2 A227 No. 30567 of 2021 the petitioner and this affixation was witnessed by two persons. The learned Civil Judge held the service of the summon on the defendant to be sufficient and proceeded with the suit ex-parte and passed an ex-parte judgment and decree dated 02.05.2014.

5. On 21.01.2026 the petitioner filed an application under Order IX, Rule 13 C.P.C. for setting aside an ex-part judgment and decree dated 02.05.2014 stating that the summon of the suit was not served on the petitioner-defendant. The process server has submitted a false report dated 17.02.2012 that the petitioner had declined to receive the summon. The petitioner stated in the application that after filing of the Execution Application no.3 of 2014, he came to know about the ex-parte decree. He engaged Sri Dharmendra Yadav, Advocate who got his signatures on the vakalatnama. The petitioner gave requisite expenditure to the learned counsel engaged by him but the counsel did not do anything required in the matter and therefore the petitioner engaged another advocate Sri Atul Srivastava, who prepared and filed an application under Order IX, Rule 13 CPC without any further delay. The opposite party has filed an objection against the application inter alia stating that the petitioner has not given day to day explanation for the delay of two years in filing the application. Having put in appearance in the Execution Case No.3 of 2014 on

06.02.2015 the petitioner was aware of the ex-parte decree since the aforesaid date yet the application under Order IX, Rule 13 C.P.C. has been filed on 21.01.2016 with a delay of about a year.

6. The learned trial court rejected the application under Order IX, Rule 13 C.P.C. stating that the explanation given by the petitioner was not believable. The defendant-petitioner had full knowledge of the proceedings of the suit.

7. The revisional court also upheld the order passed by the learned trial court holding that the petitioner knowingly abstained from appearing before the learned trial court and he did not file the application under Order IX, Rule 13 CPC within the prescribed period of limitation. The opposite party has filed a counter affidavit 3 A227 No. 30567 of 2021 stating that the petitioner admits having engaged Sri Dharmendra Yadav, Advocate on 06.02.2015. The delay that has been occasioned after engagement of counsel has not been sufficiently explained. The application for condonation of delay has rightly been rejected.

8. The learned counsel for the opposite party has placed reliance upon a judgment of Hon'ble Supreme Court in the case of Vishwabandhu Vs. Sri Krishna and another: (2021) 19 SCC 549 . In the aforesaid case the summon had been served on the petitioner and he had duly signed the acknowledgment of receipt of summon and in spite of that he did not appear in the proceedings. In the present case summons have not been served upon the petitioner and he has not signed the acknowledgment of receipt of summon. The summon of the suit are said to have been served by affixation and the notice of execution case is said to have been served by post which was not received back unserved. No acknowledgment of receipt of summon or notice by the petitioner was available on record in the present case. Therefore, the facts of the present case are different from the facts of the case of Vishwabandu (Supra).

9. It is settled law that a precedent has to be read, understood and applied keeping in view the peculiar facts in the light of which the matter was decided and and a little difference in the facts of the case may bring out a world of difference in their outcomes. In the present case receipt of summon/notice had never been acknowledged by the petitioner and and it is the specific case of the petitioner that no notice or summon was ever served upon him.

10. Although, the petitioner is said to have declined to accept the summon of the suit, no step was taken for effecting the service of summon by substituted mode as envisaged in Order 5, Rule 20 C.P.C. Notice of the execution application was also not acknowledged by the petitioner and service of notice has been presumed merely because of the notice having not been received 4 A227 No. 30567 of 2021 unserved. The petitioner claims to have engaged a counsel as soon as he came to know about the execution application and to have signed a vakalatnama in favour of his counsel on 06.02.2015, but he claims that his counsel did not take suitable steps to protect his interest in the matter. Being dissatisfied about the manner in which the counsel engaged by the petitioner was dealing with the matter, he engaged another counsel who prepared an application under Order IX, Rule 13 CPC and filed the same on 21.01.2016.

11. In these circumstances, it appears that the petitioner has given a sufficient explanation for the delay caused in filing application under Order IX, Rule 13 CPC.

12. So far as the objection taken by the learned counsel for the opposite party the petitioner has not given adequate explanation for each day's delay suffice it to say that what the law requires is that the petitioner should give sufficient explanation for the delay. The requirement of explanation of each day's delay is not to be pressed so technical as to defeat the cause of justice. It is settled law that while examining cause shown for the delay in filing an application under Order IX, Rule 13 CPC the court should adopt a liberal approach so as to prevent the interests of justice rather than denial of opportunity of hearing to a litigant, more so where the litigant claims to have engaged a counsel who was not vigilant in performance of his professional duties.

13. In these circumstances, I am of the considered view that the petitioner has been able to make out a sufficient case for the delay in filing the application under Order IX, Rule 13 CPC. Accordingly, the writ petition is allowed. The impugned order dated 24.02.2020, passed by the learned Civil Judge, Senior Division, Court No.10, Raebareli and the order dated 20.11.2021, passed by learned District Judge, Raebareli are hereby set aside. The application filed by the petitioner under Section 5 of Limitation Act filed by the petitioner in Misc. Case No.10 of 2016 is allowed. The learned trial court is directed to decide the application under Order IX, Rule 13 CPC on its merits expeditiously preferably within a period of one 5 A227 No. 30567 of 2021 month from the date of production of a certified copy of this order. The ex-parte decree dated 02.05.2014, passed in Regular Suit No.418 of 2012 will not be executed till disposal of application under Order IX, Rule 13 CPC. December 8, 2025 Ram. (Subhash Vidyarthi,J.) RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench