Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 2612 of 2017 Appellant :- Nanak Chander And 3 Others Respondent :- Onkar Counsel for Appellant :- Ateeq Ahmad Khan Counsel for Respondent :- Ramesh Chandra Tiwari
Hon'ble Vivek Agarwal,J.
1. Heard Sri Ateeq Ahmad Khan, learned counsel for the petitioners and Sri Ramesh Chandra Tiwari, learned counsel for the respondent.
2. Appellants' contention is that he is aggrieved of order dated 20.05.2017 passed by learned Additional District Judge, Court No.4, Bulandshahar, whereby his application under Order 41 Rule 21 C.P.C. for re-hearing of Civil Appeal No.76 of 2013 decided ex parte on 27.09.2014 has been rejected.
3. Appellant's contention is that summons were never served on him and service of summons in regard to appeal were never made on him, therefore, he could not appear before the court concerned. He, however, admits that service of notice on an application under Section 5 of the Limitation Act was served on his son, but service on his son on an application under Section 5 of the Limitation Act can at best be used to condone the delay in filing the appeal, but not deciding the appeal ex parte.
4. He submits that since there is no material on record to show that after delay was condoned, any notices were served on the present appellant, therefore, he should not have been proceeded ex parte by the court below and court below has decided the appeal ex parte vide its order dated 27.09.2014.
5. Sri Ramesh Chandra Tiwari, learned counsel for the respondent, in his turn submits that there is plethora of evidence on record to show that notices were served on the present appellant.
6. Sri Tiwari has drawn attention of this Court to Annexure- CA3 to point out that, notices were issued under Order 41 Rule 3A C.P.C. and Section 5 of Limitation Act, which were served on the son of the present appellant namely Mohit, copy of this service report is enclosed. Thereafter, notices were sent through registered post and copy of such receipts are enclosed as Annexure-CA-5, but despite such notices being sent by registered post, neither undelivered cover was received, nor any acknowledgement was received back by the court, therefore, service of notice was deemed to be sufficient as is apparent from the order dated 15.03.2013, copy enclosed as Annexure- CA-6. It is submitted that there was sufficient service of notice on the present appellant, but he did not appear, therefore, impugned order does not suffer from any infirmity.
7. However, from record, it is apparent that, notices were issued only on an application under Order 41 Rule 3A and Section 5 of the Limitation Act, no notices were issued as on appeal and, therefore, the impugned order suffers from infirmity. It is set aside. Parties are directed to appear before the court of Additional District Judge, Court No.4 on 25.01.2021. Since, ex parte proceedings are set aside, thus the court concerned shall hear the parties on the merits of the appeal and decide the appeal afresh.
8. It is made clear that since present order is being passed in presence of learned counsel for the parties, no fresh notice will be required for their appearance before the court concerned. They shall not seek any undue adjournment and the court of learned A.D.J. shall make an endeavour to decide the appeal within 30 days of first appearance of the parties on its own merits for which purpose parties shall appeal before the concerned learned ADJ on 22.02.2021 for which no separate notice will be required.
9. Appellants shall also bear cost of the litigation which is quantified at Rs.5,000/- which shall be payable to the opposite party.
10. In above terms, appeal is disposed off. Order Date :- 7.1.2021 Ashutosh