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Om Prakash v. Judge Small Causes And Others - WRIT - A No. 8617 of 2006 [2006] RD-AH 19915 (23 November 2006)


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Court No.7

Civil Misc. Writ Petition No. 8617 of 2006

Om Prakash    


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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