Brajpal Singh vs. Kalyan Singh

A.F.R. Judgement reserved on 21.10.2019 Judgement delivered on 3.3.2020

Case :- WRIT - C No. - 74265 of 2011 Petitioner :- Brajpal Singh Respondent :- Kalyan Singh Counsel for Petitioner :- Y.S.Bohra Counsel for Respondent :- Kapil Kumar, Dinesh Pathak, Sandhya Singh

Hon'ble Saral Srivastava,J.

1. Heard Sri Y.S. Bohra, learned counsel for the petitioner and Sri Dinesh Pathak and Ms. Sandhya Singh, learned counsel for the respondent.

2. The petitioner by means of the present writ petition has assailed the order dated 8.11.2011 passed by Additional District & Sessions Judge, Court No. 3, Bulandshahr in Misc. Appeal No. 26 of 2011 (Kalyan Singh Vs. Brajpal) whereby the Appellate Court has condoned the delay in filing the application under Order 9 Rule 13 of Civil Procedure Code, 1908 (hereinafter referred to as 'CPC') of the respondent and further allowed the application under Order 9 Rule 13 of CPC and set aside the ex-parte judgement dated 13.9.2005.

3. Brief facts giving rise to the present writ petition are that the respondent-Kalyan Singh executed an agreement to sale in favour of Brajpal Singh-petitioner in respect of 1/4th share of Plot No. 329 total area 1.564 situated at Village Khanauda, Pargana and Tehsil Anupshahr, District Bulandshahr for a sale consideration of Rs. 1,50,000/-. The petitioner paid Rs. 1,25,000/- in advance on 1.7.2002 to Kalyan Singh . As per terms and conditions of the agreement to sale, the sale deed was to be executed within one year from the date of agreement to sale i.e. on or before 30.6.2003.

4. As the sale deed was to be executed on or before 30.6.2003, the petitioner gave a notice dated 2.6.2003 through Advocate to the respondent asking him to execute the sale deed within 15 days from the date of receiving of registered notice. By the said notice, the petitioner also requested the respondent to inform the date on which the sale deed is to be executed so that he may remain present in the registry office for the execution of sale deed. The respondent did not reply to the notice dated 2.6.2003. However, the petitioner was present in the registry office with the balance sale consideration of Rs. 25,000/- and other incidental expenses for the purpose of execution of sale deed. The respondents did not turn up for execution of sale deed. When the respondent did not execute the sale deed despite the request by petitioner several times, the petitioner gave another notice dated 25.4.2004 asking the respondent for execution of sale deed. The respondent despite service of notice dated 25.4.2004 did not execute the sale deed.

5. In the aforesaid factual backdrop, the petitioner instituted an Original Suit No. 479 of 2004 before the Court of Civil Judge (Senior Division), Bulandshahr praying for a decree of specific performance of contract for execution of sale deed in respect of the aforesaid property.

6. In the suit, summons were issued to the respondent. The summons were sent to the respondent trough process server as well as by registered post. The summons sent by the registered post was refused by the respondent on 18.10.2004. The postal department returned the summons with endorsement " लेने से मना िकिया ".

7. The wife of the respondent refused to accept the summons sought to be served through process server and also refused to tell the address of her husband. The process server submitted a report on the back side of the summon which contained signature of two witnesses namely (1) Brajpal Singh s/o Arjun Singh and (2) Om Prakash Raghav s/o Kuwarpal Singh Raghav. The report of process server stated that the wife of the respondent Kalyan Singh refused to receive the summon and also refused to tell the address of Kalyan Singh, therefore, the summon was affixed on the door of the house. In view of the aforesaid fact, the Trial Court found service of summons upon the respondent sufficient, and consequently, it passed an order dated 20.4.2005 to proceed ex-parte in the suit. The order of the court below dated 20.4.2005 reads as under:-

"20-04-2005

okn iqdkjk x;kA oknh e; fo}ku vf/koDrk mifLFkrA i=koyh dk ifj'khyu fd;k x;kA dkxt la[;k & 11 , jftLVªh dks izfroknh }kjk ysus ls bUdkj ds lEcU/k es izfof"V dh x;h gSA bUdkjh ls rkehy Ik;kZIr gSA izfroknh vuqifLFkr gSA i=koyh okLr s izfrokn i= ,oa lajpuk fook/kd fu;r gSA izfroknh ij rkehy Ik;kZIr gSA izfroknh dh vuqifLFkfr ds dkj.k okn izfroknh ds fo#) ,d i{kh; Jo.k fd;k tk; sxkA i=koyh okLrs ,d i{k lk{; fnukad 28-04-2005 dks is'k gksA

¼'kadj yky½ vij flfoy tt ¼izoj [k.M½ U;k; d{k la[;k & 3] cqyUn'kgjA"

8. Thereafter, the Trial Court proceeded ex-parte and decreed the suit by judgement and order dated 13.9.2005. The petitioners, thereafter, filed Execution Case No. 30 of 2005 for execution of the decree in which the notices were sent to the judgement-debtor i.e. respondent. The respondent refused to accept the notice. Consequently, the Executing Court on 1.4.2006 passed an order to proceed ex-parte as the service of summon upon the respondent is sufficient. The order dated 1.4.2006 passed in Execution Case No. 30 of 2005, is extracted herein below:-

1-4-06 i=koyh izLrqr gqbZA

iqdkj djkbZ xbZA iqdkj ij fMdzhnkj e; fo}ku vf/koDrk U;k;ky; esa mifLFkr gSA fu.khZr _.kh ij rkehy tfj; s badkjh Ik;kZIr gSA fu.khZr _.kh dh vksj ls U;k;ky; es a dksbZ mifLFkr ugh gqvk gSA vkKfIr /kkjd }kjk elkSnk cSukek i=koyh ij miyC/k djk;k x;k gSA dk;kZy; vk[;k ds vuqlkj elkSnk cSukek fMdzh ds vuqlkj lgh gSA ,slh fLFkfr es vkKfIr /kkjd }kjk izLrqr elkSnk cSukek vuqeksfnr fd;k tkrk gSA vkKfIr /kkjd dks funsZf'kr fd;k tkrk gS fd og fodz; foys[k jftLVªhdj.k ds fy; s okafNr ;Fkksfpr U;k;'kqYd i=koyh ij miyC/k djk; sA bl lEcU/k e sa vko';d midze vfoyEc djs aA i=koyh okLrs vfxze vkns'k 21@4@06 dks izLrqr dh tk; sA

g0 vifBr vij flfoy tt ¼o0 l0½ d0 la0 & 1] cqyUn'kgj"

9. By the said order, the Executing Court also directed the decree holder i.e. the petitioner to produce draft sale deed and also deposit the expenses. The petitioner in compliance of court's order produced draft sale deed before the Executing Court. On depositing the balance sale consideration of Rs. 25,000/-, the Executing Court sent the sale deed for registration to the Sub Registrar by order dated 18.4.2006. The sale deed was registered on 1.5.2006 in the Office of Sub Registrar, Anupshahr, District Bulandshahr. The Executing Court after receiving the sale deed passed an order on 2.12.2006 for delivery of possession of the aforesaid plot to the petitioner through Court Amin. The Court Amin executed the delivery of possession on 22.2.2007 after completing all the formalities in the presence of witnesses and submitted report and possession memo to the Executing Court. It appears that subsequent to the execution of the sale deed, the name of the petitioner was mutated in the revenue record.

10. The respondent after about four years from the date of exparte judgement and decree dated 13.9.2005 filed application under Order 9 Rule 13 CPC for setting aside the ex-parte judgement and order dated 13.9.2005 which was numbered as Misc. Case No. 14 of 2009. The respondent also filed an application under Section 5 of the Limitation Act, 1963 praying for condonation of delay in filing the application under Order 9 Rule 13 CPC.

11. In the affidavit in the delay condonation application, the respondent stated that the respondent had not refused to receive any summon sent by registered post or through process server, and

4

the refusal has been endorsed on the registry by postman in collusion with the petitioner. He further stated that the respondent came to know about the execution of sale deed for the first time on 16.2.2009 when he visited the Lekhpal of the village to obtain khasara and khatauni of the property, and he was told by the Lekhpal about the mutation of the name of the petitioner in the revenue records. The respondent, thereafter, contacted his counsel on 18.2.2009, and after inspection of record, he found that ex-parte judgment has been passed by the Court treating the service of summons sufficient on account of refusal by the respondent to accept summons sent through registered post. The respondent immediately filed an application for setting aside the ex-parte decree. The respondent has prayed for condonation of delay on the basis of averments made in the delay condonation application detailed above.

12. The aforesaid application was contested by the petitioner by filing reply to the delay condonation application as well as application under Order 9 Rule 13 CPC. The petitioner in his reply to the delay condonation application stated that the respondent has falsely stated that he came to know about the ex-parte order on 16.2.2009. It was further stated that the judgement-debtor i.e. respondent had full knowledge about the decree and delivery of possession of the property to the petitioner in execution of the said decree. He denied the fact that there was any collusion with the postman in obtaining the endorsement of refusal. The petitioner had further stated that there was inordinate delay in filing the application under Order 9 Rule 13 CPC; and the respondent had failed to establish that the delay in filing the application under Order 9 Rule 13 CPC was bonafide. It was also stated that the respondent had failed to make out any case for setting aside the exparte judgment and decree dated 13.9.2005. Accordingly, he prayed that the delay condonation application as well as application under Order 9 Rule 13 CPC is liable to be dismissed.

13. The Trial Court vide judgement and order dated 26.2.2011 rejected the delay condonation application, and consequently, dismissed the application of respondent under Order 9 Rule 13 CPC. The Trial Court recorded specific finding that the petitioner had denied the fact that the respondent came to know about the ex-parte judgement on 16.2.2009 when he visited the Lekhpal to obtain the khasara and khatauni of the aforesaid property and he (petitioner) had colluded with the postman to put endorsement of refusal on the registered notice, hence, the burden was upon the respondent to prove that the endorsement of refusal was obtained by fraud, but the respondent failed to discharge the said burden as he did not lead any evidence to establish that there was any collusion between the petitioner and the postman. The Trial Court further noticed the fact that the order to proceed ex-parte was passed prior to transfer of case to the Court of Additional Civil Judge as stated by the respondent in paragraph No. 7 of the rejoinder affidavit, therefore, there was no occasion to issue fresh notice to the respondent. The Trial Court found that the cause shown by the respondent for delay in not filing the application under Order 9 Rule 13 CPC within time was not sufficient, accordingly, it rejected the application under Section 5 of The Limitation Act, and also the application under Order 9 Rule 13 CPC.

14. Feeling aggrieved by the order dated 26.2.2011 passed by the Additional Civil Judge, Pravar Khand, Court No. 3, Bulandshahr dismissing the Misc. Case No. 14 of 2009, the respondent preferred First Appeal From Order under Order 43 Rule 1 (d) of CPC which was numbered as Misc. Civil Appeal No. 26 of 2011. The Appellate Court by the judgement and order dated 8.11.2011 allowed the delay

condonation application of respondent as well as the application under Order 9 Rule 13 CPC and set aside the ex-parte judgement and decree dated 13.9.2005 on payment of cost of Rs. 500/- and restored the Original Suit No. 479 of 2004 to its original number.

15. The Appellate Court proceeded on the presumption that the copy of the plaint was not enclosed with the registered summons whereas as per order 5 Rule 2 CPC, it is mandatory to enclose the copy of plaint with registered summons. The Appellate Court further on the basis of affidavit filed by the respondent and report of Amin held that the possession of the land in dispute was delivered without beating drums by the Ardali of the Amin on the ground that the name of Ardali, who was assigned the duty of beating drums, was not recorded in the Amin's report. The Appellate Court further relied upon the affidavit of some persons filed by the respondent on the ground that all affidavits were of the person who were resident of Village Khanauda where the property in dispute was situated whereas the affidavit filed by the petitioner in support of his case were of persons who were not the resident of Village Khanauda. The Appellate Court was of the view that as the respondent has filed application under Order 9 Rule 13 CPC within time from the date of knowledge of ex-parte decree, hence, the cause shown by the respondent for delay in filing the application under O9R13 C.P.C. is sufficient. Accordingly, it allowed the delay condonation application and also the application under Order 9 Rule 13 CPC.

16. Learned counsel for the petitioner challenging the aforesaid order contended that the Appellate Court while allowing the appeal has carved out a new case inasmuch as neither in the application under Order 9 Rule 13 CPC nor in the delay condonation application under Section 5 of The Limitation Act, the respondent has stated that the registered summon did not contain the copy of the plaint. He submits that there is a presumption that the officials act are deemed to have been done regularly, and thus, finding of the Appellate Court that copy of plaint was not enclosed with the registered summons is illegal and based upon no evidence on record. In support of the said submission he has placed reliance upon the judgement of this Court in the case of Raj Kumar Vs. Jai Prakash, 1987 ARC 234.

17. He further submits that there is no pleading in the application of the respondent under Section 5 of The Limitation Act, 1963 and Order 9 Rule 13 CPC to the effect that there was no beating of drum by the 'Ardali' of the Amin at the time of delivery of possession nor the report of the Amin was challenged by the appellant on the ground that it did not state the name of Ardali of the Amin who was assigned with the duty of beating drums in the aforesaid two applications of the respondents. Thus, the submission is that the Appellate Court has committed manifest error of law apparent on the face of record in allowing the application of the respondent under Section 5 of The Limitation Act as well as under Order 9 Rule 13 CPC by carving out a new case which was not pleaded by the respondent. He submits that in the present case, a valuable right has accrued to the petitioner, and the Appellate Court had failed to consider this aspect of the matter while allowing the delay condonation application. He has placed reliance upon the judgement of Apex Court in the case of Balwant Singh (dead) Vs. Jagdish Singh and others, AIR 2010 SC 3043.

18. He further submits that the Appellate Court has acted illegally in relying upon the additional evidence filed by the respondent in the form of affidavit in appeal in the absence of any order passed by the Appellate Court to admit the additional evidence at the appellate stage.

19. Per contra, learned counsel for the respondent contends that the Appellate Court has not committed any jurisdictional error in allowing the application under Order 9 Rule 13 CPC, therefore, this Court should refrain from exercising its power under Article 226 of the Constitution of India. In support of his submission, he has placed reliance on the judgement of Uttarakhand High Court at Nainital in the case of Pradeep Kumar Vs. Kamal Kant and others in Writ Petition (M/S) No. 2444 of 2019 decided on 2.9.2019. He further submits that the Court should adopt liberal approach to consider sufficient cause in condoning the delay in order to do substantial justice. Learned counsel for the respondent further contends that the summons have not been properly served and the procedure of service of notice has not been followed and this aspect has not been considered by the Trial Court while rejecting the application under Order 9 Rule 13 CPC.

20. I have heard rival submissions of learned counsel for the parties and perused the record.

21. The moot question which arise for consideration is as to whether the Appellate Court was justified in condoning the inordinate delay of about 4 years in filing the application under Order 9 Rule 13 CPC of the respondent.

22. It transpires from the record that the Trial Court after having been satisfied with the sufficiency of service of summons upon the respondent passed an order on 20.4.2005 to proceed ex-parte. The Trial Court, thereafter, proceeded to hear the suit and passed the exparte judgment and decree on 13.9.2005.

23. Thereafter, the petitioner preferred Execution Case No. 30 of 2005 in which Executing Court after being satisfied with the service of notice upon the respondent passed an order on 1.4.2006 to proceed ex-parte and directed the petitioner to produce the draft sale deed and also deposit the required expenses. Pursuant to the order dated 1.4.2006 passed by the Executing Court, the petitioner deposited expenses and filed draft sale deed which was registered on 1.5.2006. The Executing Court passed an order on 2.12.2006 for delivery of possession which was given to the petitioner through Amin on 22.2.2007.

24. In the facts of the present case, it would be appropriate at this stage to refer the averments made by respondent in application dated 19.2.2009 under Order 9 Rule 13 CPC which are extracted herein below:-

izkFkZuki= uEcj lkfcd vUrxZr vkns'k 9 fu;e 13 lifBr /kkjk 151 lh0 ih0 lh0 fo#) U;k;ky; fl0 tt ¼fl0 fMoh0½ cqyUn'kgj ewy okn la0 & 479@ 2004 cztiky flag izfr dY;ku flag e sa ikfjr vkns'k o fMdzh

fnukad 13&9&2005 esa fuEu vk/kkjks a ij izLrqr gS &

1- ;g fd vkns'k fnukad 13-9-05 ,d i{kh; #Ik ls izkFkhZ ds f[kykQ xyr rF;ksa ij ikfjr dj fn;k x;k gSA

2- ;g fd ewy okn e sa lEcfU/kr leu }kjk jftLVªh ftle sa izkFkhZ }kjk ysus l s badkj okyh ckr fy[kh x;h gS fcYdqy vlR; ,oa fujk/kkj gS] izkFkhZ ds ikl dHkh U;k;ky; dk leu o jftLVªh dHkh dksbZ deZpkjh ysdu ugh igq apk gSA

3- ;g fd foi{kh@ oknh }kjk izkFkhZ dks uqdlku igq apkus ,oa [kqn dks Qk;nk igq apkus dh fu;r ls jftLVªh ij lkft'k ds rgr izkFkhZ ds bls ysu s ls badkj dh ckr fcYdqy >wBh fy[kk;h x;h gSA

4- ;g fd izkFkhZ@ izfroknh }kjk vius vko';d dk;Z gsrq ys[kiky ls vius [ksr dh udy [kljk o [krkSuh ekaxus ij fnukad 16-2- 2009 dks izkFkhZ ds uke dh txg foi{kh@ izfroknh dk uke ntZ gksu s dh tkudkjh feyh ftl ij izkFkhZ dks vnkyr }kjk oknh ds gd esa cSukes djus dh irk yxus ij izkFkhZ us vius vf/koDrk ls ewy i=koyh dh tkudkjh djkdj fnukad 18-2-2009 dks eqvk;uk djk;kA ftlls leLr tkudkjh izkIr gqbZA

5- ;g fd ,slk dksbZ dkj.k ugh Fkk ftlls izkFkhZ dks jftLVªh uk y sus ls dksbZ Qk;nk igq apk jgk gksrk ftldh otg ls izkFkhZ us jftLVªh ysu s ls euk dj nsrkA

6& ;g fd foi{kh@ oknh }kjk izkFkhZ@ izfroknh ds jftLVªh ds ysu s ls badkj fy[kkus ij oknh us vnkyr dks xqejkg dj tku cw>dj uktk;t Qk;nk mBk;k gSA

7& ;g fd U;k;ky; }kjk ikfjr ,di{kh; vkns'k fnukad 13-9- 05 ds cus jgus ls izkFkhZ@ izfroknh dh l[r gdryQh gSA

8& ;g fd U;k;fgr esa ,d i{kh; vkns'k fnukad 13-9-05 dks lekIr dj mDr okn dks xq.k nks"k ds vk/kkj ij r; djus ds fy; s uEcj lkfcd ij fy;k tkuk vfr vko';d gSA

vr% Jheku th ls izkFkZUkk gS fd izkFkhZ dk uEcj lkfcd izkFkZuk i= Lohdkj dj U;k;ky; }kjk ikfjr ,di{kh; vkns'k fnukad 13-9-2005 dks fujLr dj izkFkhZ@ izfroknh dks mlds lcwr dk volj iznku dj okn dks xq.k nks"k ds vk/kkj ij r; fd;k tkos] d`ik gksxhA fnukad 19-2-09 izkFkhZ@ izfroknh dY;ku flag iq= Jh jkeLo#i fuoklh xzke & [kukSnk ijxuk

o rglhy vuwi'kgj ftyk cqyUn'kgj"

25. The respondent also filed delay condonation application stating therein that he had never received notice served through registered post or summon alleged to have been served upon him, and the endorsement of refusal made on the registered summon by the postman was an act of fraud of petitioner in collusion with the postman. He further averred that when he visited the Lekhpal to obtain khasara and khatauni of the aforesaid property on 16.2.2009, he came to know about the execution of the sale deed and mutation of name of respondent in the revenue record in respect of the aforesaid property. Thereafter, he inspected the record of the Trial Court on 18.2.2009 and immediately filed an application on 19.2.2009 for recall of the ex-parte judgment and decree. On the basis the of the aforesaid averments, he prayed for condonation of inordinate delay in filing the application under Order 9 Rule 13 CPC of about four years.

26. It would be apposite to refer the judgment of the Apex Court in the case of Balwant Singh (dead) Vs. Jagdish Singh and others, AIR 2010 SC 3043 wherein the Apex Court has refused to condone the inordinate delay of 778 days in filing the substitution application by the heirs of the appellant who died on 28.11.2007. The Apex Court held that even if the term 'sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. Paragraph Nos. 13 and 16 of the Balwant Singh (dead) (supra) reads as under:-

"13. As held by this Court in the case of Mithailal Dalsangar Singh (supra), the abatement results in the denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be construed liberally. We may state that even if the term sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, as accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh [(2000) 9 SCC 94], this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case of Ramlal and others v. Rewa Coalfields Ltd., [AIR 1962 SC 361] this Court took the view:

"7. In construing Section 5 is relevant to bear in mind two important considerations.

The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269.

It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;...

16. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications."

27. In the light of parameters laid down by the Apex Court in the aforesaid judgment, now the Court proceeds to examine as to whether the explanation tendered by the respondent in delay condonation application is sufficient to condone the inordinate delay of four years in filing the application under O9R13 C.P.C.

28. In the case in hand, the respondent has denied the fact that he had ever refused to accept the notice or summons of suit through process server or by registered post, and he came to know about the ex-parte judgment as well as execution of the sale deed on 16.2.2009 when he visited the Lekhpal to obtain copy of khasara and khatauni. At this stage, it is relevant to point out that neither the delay condonation application nor the application under Order 9 Rule 13 CPC disputes the correctness of the finding recorded by the Executing Court in order dt. 1.4.2006 in Execution Case No. 30 of 2005 regarding the sufficiency of service of notice of execution case upon the respondent-judgement debtor. It is also important to note that the aforesaid two applications do not contain any averment that the Ardali of the Amin did not beat the drums at the time of delivery of possession nor theses two applications doubted the correctness of the report of the Amin. In this view of the fact, it is highly improbable that the delivery of possession of the property could have been effected by the Amin to the petitioner without knowledge of the respondent.

29. Thus, the aforesaid facts clearly indicates that the respondent had knowledge about the ex-parte judgment and decree much before the filing of application under Order 9 Rule 13 CPC and delay in filing the application under O9 R13 C.P.C. was not sufficiently explained.

30. The Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy, 1998 (89) RD 607 has held that the acceptability of the explanation is the only criteria to condone the delay; sometimes delay of very short period is not condonable for want of unacceptable explanation. The relevant portion of the said judgement is extracted hereinbelow:-

"It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. "

31. The judgment of N.Balakrishnan (supra) is of no help to respondent inasmuch as the respondent has not tendered plausible and cogent explanation which can be said to be sufficient and acceptable for condoning the inordinate delay of four years in filing the application under O9R13 C.P.C.

32. Further, though a bald averment has been made by the respondent in both the applications that he had not refused to accept the service of summons but this fact was denied by the petitioner. In such an event, the burden of proof was on the respondent to establish by leading evidence that the endorsement of refusal on registered notice was an act of fraud of the petitioner in collusion with the postman. The respondent did not lead any evidence to establish the aforesaid facts, and in this view of the fact, the Trial Court rightly recorded finding that the respondent had failed to discharge burden to prove that the endorsement of refusal was obtained by fraud on the registered notice. The aforesaid finding of the Trial Court is supported by the judgement of this Court in the case of S.P. Srivastava Vs. Prem Lata AIR 1980 All 336 wherein it has been held that an ex-parte decree should not be set aside lightly, and the burden is upon the applicant to prove that the summons or notices was never served upon him and he got knowledge of the ex-parte decree on a particular date. Relevant extract of paragraph 6 of the judgment is reproduced herein:

"6. The first point raises a question of fact. When did the wife first come to know of the ex parte decree? She stated that she came to know of the ex parte decree on the 15th April, 1976 after inspection of the relevant papers. On the 13th April, 1976 she had come to know of a proceeding of divorce instituted by the husband. The ex parte decree was passed on the 2nd June, 1973. Her knowledge was, therefore after 34 months. It is obvious that she was not living with the husband during this period. The question whether she had knowledge of the suit would not depend on what she stated, for her statement remained wholly uncorroborated. On the question whether there was a service of the summons of the the suit on her, there was a bare denial. The positive evidence that could be led in the case had been led by the husband. Firstly, the process server was examined and also a witness of the service. The process server had been disbelieved for the following reasons; The process server is said to nave served the summons on the 22nd April, 1973. It was a Sunday. It was stated by the process server that the husband had come to the Nazarat to enquire as to who would be taking the summons to the opposite party. The court below opined that it was amazing that the office of Nazarat would remain open on a Sunday. The court below also relied on the circumstance that there was no compliance with the Order 5, Rule 17 by the process server, inasmuch as the summons had not been pasted on the outer door of the house. Thus, the court below came to the conclusion that there was no service of the summons on the wife. The finding of the court below that she came to know of the ex parte decree only on the 15th April, 1976 was based on no other consideration than believing her. She had also to lead sufficient evidence to show that she had no knowledge whatsoever of the ex parte decree. It is a relevant circumstance to be considered when the application for setting aside the ex parte decree was being moved after 34 months. What was she doing all this time? If there was a separation and she was not living with her husband, what prompted her to visit her husband's place on the 14th April, 1976. In any event, there is neither any consideration nor any finding as to whether she had visited her husband's place on the 14th April, 1976. If she did not visit her husband's place on the 14th April, 1976, what made her to see the record on the 15th April, 1976? The court below has not considered any of these matters and has set aside the ex parte decree without considering the relevant and material circumstance. An ex parte decree is not to be set aside lightly. The wife seeking to set aside the ex parte decree has got to prove to the entire satisfaction of the court that the summons or notice was never served on her and secondly that she got the knowledge of the suit or proceeding on a particular date. The burden is still more heavy when the application for setting aside the ex parte decree is made after the period of limitation provided for moving the said application. The applicant must satisfy the court with cogent and reliable evidence, the reasons which prevented him or her from making the application within time."

33. Now, the court proceed to analyze as to whether the reasons recorded by the Appellate Court in allowing delay condonation application as well as application under O9R13 C.P.C. are sustainable in law.

34. It is evident from the order of the Appellate Court that it had carved out a new case in allowing the application of respondent under Section 5 of The Limitation Act inasmuch as no foundation had been laid by the respondent in application under Section 5 of The Limitation Act, 1963 or in the application under Order 9 Rule 13 C.P.C. alleging that the Ardali of the Amin did not beat the drum at the time of delivery of possession nor the respondent had disputed the correctness of report of Amin in the aforesaid two applications.

35. Further, the finding of the Appellate Court that the copy of the plaint was not enclosed with the registered summons, therefore, the procedure prescribed under Order 5 Rule 2 was not followed is also not sustainable for two reasons, firstly, there is no such case of the respondent either in application under Section 5 of Limitation Act or in the application under Order 9 Rule 13 CPC that the plaint was not enclosed with the registered summons. In the absence of any pleading that the plaint was not enclosed with the registered notice, the presumption lay that the plaint was enclosed with the summons as the official acts are done regularly unless proved otherwise. It would be apposite to refer the case of Raj Kumar (supra) wherein it has been held in paragraph No. 7 that when the defendant had refused to accept the summons, he had also refused to accept service of the plaint, hence he can make no legitimate grievance of the fact that he was not supplied with a copy of the plaint.

36. Secondly, non enclosure of copy of plaint with summons is merely an irregularity. At this stage, it is worth to refer the case of Raghubir Sahai Bhatnagar Vs. Bhakt Sajjan, AIR 1978 All 139 wherein this Court has held that the expression "irregularity in the service of summons" occurring in the proviso appended to O9R13 of C.P.C. would mean defect in following the procedure for the service of summons. Paragraph No. 6 & 7 of the judgement in Raghubir Sahai Bhatnagar (supra) is extracted herein :

"6. It is true that the process server did not make any effort to affix the copy of the summons at the outer door of the defendant's place of residence on his refusal to accept the same. In our opinion, this defect was not substantial enough to vitiate the service of summons. The purpose of issuing summons is to give intimation to the defendant of the suit, the court, and the date fixed for his appearance and in order to achieve that purpose the legislature has laid down detailed procedure for service of summons on the defendant. Where ex parte decree is passed in the defendant's absence, he is entitled to get the decree set aside under Order 9 Rule 13 if he satisfies the court that the summons was not duly served on him and he had sufficient cause for his absence. But in view of the proviso added by the Allahabad High

Court to Order 9 Rule 13 an ex parte decree cannot be set aside on the ground of any irregularity in the service of summons, if the court is satisfied that the defendant had knowledge, but for his wilful conduct he had sufficient time to appear and answer the plaintiff's claim. The proviso added by this Court has now been ingrafted in Rule 13 itself by Parliament by the Amending Act No. 104 of 1976. Admittedly, at the relevant period when the question arose before the courts below the proviso as added by this Court ? was in force. Both the courts held that the process server's failure to affix the summons at the outer door of the defendant-applicant's place of residence was a mere irregularity and since the defendant-applicant had knowledge of the date of hearing, he had no sufficient cause for his absence. We. are of the opinion that the courts below have rightly held that the defect, if any, in the service of summons was a mere irregularity and since the defendantapplicant had knowledge of the date of hearing he had no sufficient cause for his absence and as such the ex parte decree could not be set aside.

7. Sri K. C. Saksena contended that failure to affix the summons at the outer door of the defendant's place of residence or business was not an irregularity, instead it was an illegality, as such the proviso to Order IX Rule 13 C. P. C. was not applicable. We find no merit in the contention. As noted earlier, the primary purpose of prescribing procedure for service of summons is to ensure that the defendant receives information and knowledge of the plaintiffs suit and the date of hearing. If the procedure prescribed under Order V Rule 17 is not strictly followed and if it is established that the defendant had knowledge of the plaintiff's claim as also of the date of hearing the proviso to Order IX Rule 13 would be attracted and the ex parte decree cannot be set aside. The proviso comes into play when some irregularity occurs in the service of summons. There is difference in illegality and irregularity. Irregularity contemplates defect in procedure and non-compliance of the prescribed formality which may not be of substantial nature. Illegality, on the other hand, connotes contravention of statute which may in some cases make the action void. Illegality contemplates an action forbidden by law while irregularity is mere defect in 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 defect in following the procedure prescribed for the service of summons. Not doubt. Order V Rule 17 requires that on defendant's refusal to accept the summons the process server should affix the same on the outer door of the defendant's place of residence or business, but failure of the process server to go through the prescribed formality of

affixing the summons at the outer door is a technical fault amounting to an irregularity."

37. At this stage, it would also be appropriate to refer judgment of apex court in the case of Commissioner of Income Tax Vs. Hindustan Bulk Carriers AIR 2003 SC 3942 wherein apex court has held that a construction which reduces the statute or any provision to a futility has to be avoided. Paragraph 23 to 27 of the judgment is extracted below:

"23. A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so construed as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat i.e. a liberal construction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties.

24. A statute is designed to be workable and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable.

25. The courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used.

26. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

27. The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute."

38. O5R2 of C.P.C., requires that every summon shall be accompanied by a coy of plaint. The purpose of summons is to inform the defendant in the suit to appear and answer the claim and file written statement. Once the service of summon is proved, it means that the defendant has knowledge about institution of suit for certain claim against him. If the copy of the plaint is not enclosed with the summon, he can demand copy of plaint and other documents to enable him to answer plaintiff's claim. Non enclosure of copy of plaint with summons is only a defect in procedure, and if it is not considered as an irregularity, it would render proviso appended to O9R13 of C.P.C. otiose.

39. Now, coming to the question as to whether the Appellate Court correctly relied upon affidavits filed by the respondent in appeal, the order-sheet of appeal enclosed with the writ petition reveals that there is no order of the Appellate Court accepting and admitting those affidavit in the appeal as evidence. Therefore, this Court is of the opinion that the Appellate Court has acted illegally in relying upon the affidavits filed by the respondent in appeal inasmuch as those affidavits could have been relied upon in appeal only if the Appellate Court had passed an order on the touchstone of O41R27 of C.P.C. accepting those affidavits as evidence in appeal.

40. Learned counsel for the respondent has also urged that the Rule 138, 139 and 140 of General Rules (Civil), 1957 have not been followed while serving summons upon the respondent. The said contention is also not sustainable for the reason that no such pleading has been made by the respondent in the application under Order 9 Rule 13 CPC or in the appeal, therefore, the said contention cannot be allowed to advance for the first time in the writ petition.

41. Thus, for the reasons delineated above, the Appellate Court has committed manifest illegality in allowing the appeal and setting aside the order dated order dated 26.2.2011 passed by the trial court rejecting the application of respondent to set aside ex-parte judgment and decree dated 13.9.2005. Accordingly, judgement of Uttarakhand High Court at Nainital in the case of Pradeep Kumar (supra) does not come to the aid of the respondent.

42. Thus, for the reasons given above, the order of the Appellate Court dated 8.11.2011 passed in Misc. Appeal No. 26 of 2011 (Kalyan Singh Vs. Brajpal) is set aside. The writ petition is allowed. There shall be no order as to costs.

Order Date :- 3.3.2020 Jaswant