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Om Prakash v. Judge Small Causes And Others - WRIT - A No. 8617 of 2006  RD-AH 19915 (23 November 2006)
Civil Misc. Writ Petition No. 8617 of 2006
Judge Small Causes, Gorakhpur and others
Hon. Sanjay Misra, J.
Heard Sri Ashish Kumar Mishra holding brief of Sri H.N.Singh, learned counsel for the petitioner and learned counsel appearing on behalf of the respondents.
By means of this writ petition the petitioner seeks to challenge
the order dated 28.1.2006 passed by the prescribed authority whereby the application under Order 9 Rule 13 CPC has been rejected by the court.
Counter affidavit and rejoinder affidavit have been filed.
The contention of learned counsel for the petitioner is that the exparte order dated 28.9.2002 in P.A. case no.2 of 2002 u/s 21(1)(a) of U.P.Act No.13 of 1972 was obtained by the respondent without service of notice upon the petitioner. His contention is that even the process server has given a false report and two witnesses produced by the respondent before the court had given a wrong statement with respect to the service of notice.
In the counter affidavit a copy of plaint of suit no.637 of 2002 between the parties has been filed wherein paragraph 4 a reference has been made regarding pendency of the P.A. Case No.2 of 2002 The said plaint was filed in the court on 18.9..2002 whereupon notices were issued to the petitioner by the court. A copy of the order sheet has been filed alongwith the counter affidavit. A perusal of the order sheet indicates that a copy of the plaint and injunction application was received by learned counsel for the petitioner and on 25.9.2002 it has been ordered that the petitioner has filed his objection(paper no.15Ga). In view of the aforesaid evidence learned counsel for the
respondent states that the petitioner had full knowledge of the pendency of P.A. no.2 of 2002 and even passing of the exparte order. Consequently the application made under order 9 rule 13 has been rightly rejected. It has also been argued that in view of the provisions of rule 22(b) of the Rules framed under the Act the court has power to proceed exparte and recall such order on finding sufficient cause.
From a perusal of the impugned order it is seen that notices were issued to the petitioner and on 25.2.2002 a report was given by the process server to the effect that the petitioner refused to accept the notice. Two witnesses were also produced in support of the report. The court had directed steps to be taken by the respondent for service of notice on the petition by both ways and such steps were not taken by the respondent in as much as on 8.3.2002 he obtained a report of sufficient service by virtue of the report of the process server.
It has been contended by learned counsel for the petitioner that the petitioner is a blind person and the entire proceedings have been conducted against him behind his back in collusion. The contention of the petitoner is that the persons who were witnesses were not known to him and the report of the process server was obtained by collusion.
Learned counsel for the petitioner states that the knowledge which the petitioner is alleged to have gained regarding pendency of PA case No.2 of 2002 by its mention in the plaint of suit no.637 of 2002 could not amount to service of notice of PA case no. 2 of 2002 pending in another court. Referring to paragraph 4 of the plaint he contends that the averment was vague and it neither mentioned any date fixed in the case nor the court where it was pending. He submits that in proceeding under U.P.Act No.13 of 1972 the service of notices has to be effected in the manner provided in Rule 28 of the Rules framed under the Act. Rule 28 provides the manner and mode of
service and therefore in absence of compliance of the rule service cannot be deemed sufficient.
From the impugned order it is quite apparent that the court vide its order dated 2.3.2002 directed the respondent to take steps for service by both ways. The respondent obtained a report of the process server of refusal and filed an application to hold service as sufficient. The court passed an order in his favour on 8.3.2002. He did not take any steps to serve the petitioner by the other mode of service. The petitioner has denied that any notice was tendered or served upon him. Clearly the manner of service of notice provided under Rule 28 was not followed . Rule 28 of the Rules is quoted hereunder:-
"28. Service of notice(1) a notice issued by the District Magistrate, the Prescribed Authority or the appellate or Revising Authority under the provisions of the Act shall be served on the person concerned-
(a) by giving or tendering it to such person, or his counsel; or
(b) by giving or tendering it to any adult member or his family; or
(c) if no such person is found, by leaving it at his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6; or
(d) if none of the means aforesaid is available, by affixing it on some conspicuous part of his last known place of abode or business or in the case of an appeal or revision at his address as given under Rule 6.
2.If a party files a duly stamped and addressed envelope for service of any notice, then it shall be served by registered post.
3. In the case of an appeal or revision unless the appellant has taken action under sub rule (2), the appellate or Revising Authority shall send the notices ton the District Magistrate or the Prescribed Authority, as the case may be, for having service effected."
It will be seen that none of the modes of service have been followed in the present case. The notices were not served on the
petitioner as per requirement of the rules. The knowledge that the PA case no.2 of 2002 was pending by virtue of the averment made in the plaint of another suit no.637 of 2002 could not be said to be service of notice under Rule 28. Even the said plaint was served on the counsel of the petitioner on 18.9.2002 i.e. just ten days before passing of the exparte order and much after the order dated 8.3.2002 holding service to be sufficient on the petitioner. The plaint of the other suit which was filed in another court on 18.9.2002 did not mention that the P.A. case no.2 of 2002 was proceeding exparte. Clearly the facts of this case speak for themselves. The impugned order whereby the application of the petitioner under Order 9 Rule 13 CPC has been rejected cannot be upheld.
For the reasons stated above the impugned order dated 28.1.2006 is set aside. The matter is remitted back to the court below to decide the application afresh in accordance with law and after hearing the parties.
The writ petition stands allowed. No order is passed as to costs.
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