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Badhu & Another v. Civil Judge & Others - WRIT - C No. 15271 of 1984 [2004] RD-AH 79 (23 February 2004)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Rakesh Tiwari, J.

Heard counsel for the parties and perused the record.

This writ petition has been filed praying, inter-alia, quashing of the judgment and order dated 6.8.1984 (Annexure 3 to the writ petition) passed by respondent no. 1.

The case of the petitioners, in brief, is that respondents 3 to 6 Shami Umar and others filed Suit No. 167 of 1976 against them for permanent injunction restraining them from interfering with their possession of the land in suit situate in Village Haribanshpur, Pargana Nizamabad, Tehsil Sadar, District Azamgarh. The plaintiff-respondents claimed the land in suit to be Kabristan. The suit was filed under Order 1 Rule 8 C.P.C. The trial court ordered for service of summons on the petitioners by an advertisement in a newspaper and decreed the suit ex-parte against the petitioners on 7.4.1979. An application was made on behalf of the petitioners under Order IX Rule 13 C.P.C. for setting aside the decree passed ex-parte against them. The trial court rejected the application by its order dated 30.7.1982 on the basis that a perusal of the record of the case showed that the service of summons on the petitioners was sufficient.  Misc. Appeal No. 188 of 1982 was filed on behalf of the petitioners against the aforesaid order dated 30.7.1982. The appellate court dismissed the appeal by its order dated 6.8.1984. The trial court rejected the petitioners' application under Order IX Rule 13 C.P.C. Summons were served upon the petitioners by publication in a newspaper ''Rashtradoot'. Two of the defendants belonging to the same village appeared in the original case. The courts below disbelieved the version of the petitioners that they had no knowledge of the case. The service of summons on the petitioners was sufficient. There is no illegality or infirmity in the impugned order. Service by publication is in accordance with the procedure prescribed under the Code of Civil Procedure, as it is substituted service.

For these reasons this writ petition is dismissed. Interim order, if any, is vacated. No order as to costs.




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