Neutral Citation No. - 2023:AHC:243097

A.F.R.

Court No. - 90

Case :- FIRST APPEAL FROM ORDER No. - 172 of 2022

Appellant :- Rakesh Kumar Jain

Respondent :- Zulfkar Ali

Counsel for Appellant :- Ishir Sripat,Devendra Singh,Sr. Advocate

Counsel for Respondent :- Pravindra Singh,Ashish Singh,Devendra Singh,Jitendra

Shanker Pandey,Mohd. Akbar Shah Alam Khan,Neha Khan,Pravindra Singh,Satya

Dheer Singh Jadaun,Virendra Singh

Hon'ble Dinesh Pathak,J.

1.Heard Sri Rahul Sripat, learned Senior Advocate assisted by Sri

Ishir Sripat, learned counsel for the appellant and Sri Virendra Singh, Ms.

Neha Khan and Sri Jitendra Shanker Pandey, learned counsel for the sole

respondent and perused the record.

2.The appellant has preferred instant First Appeal From Order

assailing the order dated 10.12.2021 passed by Additional District and

Sessions Judge, Court No. 3, Muzaffar Nagar rejecting the restoration

application moved by him under Order 9 Rule 13 read with 151 C.P.C.,

registered as Misc. Case No.17 of 2011, against the ex-parte judgment and

decree dated 13.11.2009 passed by Additional District Judge, Court No. 5,

Muzaffar Nagar in Original Suit No. 684 of 2008 (Zulfkar Ali Vs. Rakesh

Kumar Jain).

3.Facts culled out from the record are that Zulfkar Ali (plaintiff-

respondent) has filed suit dated 14.7.2008 for permanent prohibitory

injunction against the defendant-appellant to restrain him not to interfere

in the peaceful possession of the plaintiff over the property in question

shown by letters ABC at the foot of the plaint and also not to dismantle

the construction exists over there. The plaintiff came with the case that to

secure the money borrowed from the defendant-appellant, document of

understanding has been executed on 17.1.1994. At later stage, the plaintiff

1

returned all the money as borrowed from the defendant-appellant,

however, now the defendant is trying to dispossess the plaintiff from the

property in question. During pendency of the suit, the plaintiff has moved

an amendment application dated 23.3.2009 seeking additional relief of

cancellation of the registered sale deed dated 2.2.1994 and to declare it as

null and void. Aforesaid amendment application was allowed on 8.4.2009.

Suit was proceeded ex-parte, vide order dated 11.12.2008, against the

defendant-appellant. In the meantime, case was transferred to the Court of

Additional District Judge, Court No. 5 on 28.1.2009 and the record was

received in the transferee court on 30.1.2009. In absence of the defendant-

appellant, suit was ex-parte decreed by judgment and decree dated

13.11.2009. When the defendant/appellant came to know this fact, he

moved a restoration application dated 12.09.2011, being Misc. Case

No.17 of 2011, under Order IX Rule 13 read with Section 151 C.P.C.

Having considered the full knowledge of pendency of suit to the

defendant-appellant through his wife, learned trial court, vide order under

challenge dated 10.12.2021, has dismissed the restoration application.

4.Learned counsel for the defendant-appellant submits that initially

delay was condoned vide order dated 12.09.2011, however, observation

with regard to delay condonation was quashed by order dated 08.12.2011

passed by this Court and parties were relegated before the trial court to

decide the delay condonation matter afresh. Learned trial court has

illegally declined to condone the delay for want of separate formal

application for the condonation of delay under Section 5 of the Limitation

Act and knowledge of pendency of suit to the defendant-appellant through

his wife Shobha Jain, which has been tried to be established illegally

based on report of Court Amin dated 22.07.2008. It is further submitted

that Court Amin has simply completed the table work. Even otherwise,

the provisions as enunciated under Order V Rule 17 C.P.C. has not been

complied with in its letter and spirit. Property in question, which is a

subject matter of sale deed dated 02.02.1994, has illegally been usurped

2 of 15

by the plaintiff-respondent by getting ex-parte decree passed in his favour,

that too, by way of amendment of pleading at a very belated stage for

cancellation of sale deed dated 02.02.1994 which, in fact, was not

maintainable and to that extent relief for cancellation of sale deed was

barred by time. It is further submitted that even at later stage, when the

case was transferred from regular court, vide order dated 28.01.2009, and

received in the transferre court on 30.01.2009, no fresh notice has been

issued to the parties, particularly to the defendant, as required under Rule

89 of General Rule Civil. Prayer for condonation of delay has already

precisely been made in prayer clause to the restoration application,

therefore, no separate formal application for condonation of delay under

Section 5 of the Limitation Act is required. In support of his submission,

learned counsel for the applicant has relied upon the judgment of the Apex

Court in the case of Sesh Nath Singh vs. Baidhyabati Sheoraphuli

Cooperative Bank Ltd. reported in AIRONLINE 2021 SC 161. Learned

counsel for the appellant has emphasized as well on the observations

made by the learned trial court, while rejecting the restoration application,

with respect to title of the parties and submits that learned trial court has

exceeded its jurisdiction by giving an observation qua merits of the case

of plaintiff-respondent. Lastly, it is submitted that the conduct of the

defendant-appellant is bonafide who has been deprived of his property

owing to ex parte decree passed against him and restoration application

has illegally been rejected on technical grounds. Thus, instant appeal may

be allowed and the order impugned passed by the trial court may be

quashed being illegal and unwarranted under the law.

5.Per contra, learned counsel for the plaintiff-respondent has

contended that the defendant-appellant had full knowledge about

pendency of the suit which is evident from the report submitted by the

Court Amit, wherein wife of defendant-appellant has refused to accept the

notice, therefore, proper steps for affixing notice at the front of house of

the defendant-appellant and obtaining signatures of two witnesses has

3 of 15

been completed by the Court Amin as required under the law. It is further

contended that when the order dated 11.12.2008 has been passed for ex

parte proceeding, there was no occasion to issue fresh notice to the

defendant-appellant after transfer of case, vide order dated 28.01.2009, to

the court of Additional District Judge, Court No.5, Muzaffar Nagar. It is

further contended that Shobha Jain has never appeared and not filed his

personal affidavit to corroborate the story of defendant-appellant qua

absence of knowledge about pendency of suit. It is next contended that

learned trial court has rightly declined to condone the delay for want of

proper application under Section 5 of the Limitation Act inasmuch as

without separate formal application with the prayer to condone the delay,

the court has no jurisdiction to entertain the prayer of litigant for

condoning the delay. In support of his contention, learned counsel for the

plaintiff-respondent has placed reliance upon the case of Sneh Gupta vs.

Devi Sarup and Others reported in (2009) 6 SCC 194. Supporting the

judgment passed by the trial court, learned counsel for the plaintiff-

respondent has urged to dismiss the instant F.A.F.O. being misconceived

and devoid on merits.

6.Having considered the rival submissions advanced by learned

counsel for the parties and perusal of record, it is manifested that learned

trial court has rejected the restoration application under Order 9 Rule 13

read with Section 151 C.P.C. treating the service sufficient upon the

defendant-appellant in O.S. No.684 of 2008 on the basis of report dated

22.07.2008 (Paper No.14-C) submitted by court Amin. Learned trial court,

vide its ex-parte judgement and decree dated 13.11.2009, has decreed the

suit (O.S. No.684 of 2008) filed on behalf of plaintiff-respondent for the

relief to declare the registered sale deed dated 02.02.1994 to be null and

void and also for permanent prohibitory injunction restraining defendant-

appellant not to interfere in the peaceful possession and title of the

plaintiff over the property in question shown by letters A, B and C at the

foot of the plaint. Against ex-parte judgement dated 13.11.2009, at belated

4 of 15

stage, restoration application dated 12.09.2011 has been filed on behalf of

defendant-appellant showing the date of knowledge to be 09.09.2011

when he went to Tehsil intending to obtain extract of khatauni. As per

case of the defendant-appellant, he had taken a back while saw the name

of plaintiff-respondent in khatauni pertains to the land in question,

thereafter, he has engaged a counsel and got the record inspected on

09.09.2011. In this backdrop of the facts, defendant-appellant came with

the case that his application for restoration is well within time from the

date of knowledge. Therefore, under Article 123 of the Limitation Act, his

application may be treated to be filed within prescribed period of

limitation. In rejecting the restoration application, learned trial court has

made much emphasis on the report dated 22.07.2008 submitted by court

Amin (Paper No.14-C), which evince that Sobha Jain wife of Rakesh Jain

(defendant) was interacted with the Court Amin and stated that Rakesh

Jain is not presently available and went outside. She has been made

acquainted with the notice of the court and pendency of the case,

however, she refused to receive the notice which compelled the Process

Server (Court Amin) to affix the notice along with the other documents at

the front of the house and obtained signature of the two witnesses at the

reverse side of the notices. Perusal of notice (Paper No.15-C), available

on record, reveals that the Process Server has simply made following

endorsement : "Patni Dwara Inkar - Chaspa". Below the aforesaid

endorsement there is a signature of two witnesses namely one Chaman

Lal son of Bhola Ram Saini and Wasim Ahmad son of Mohd. Anis. It

would also be pertinent to mention that Mr. Wasim Ahmad and Chaman

Lal have filed their personal affidavits (Paper No.64-C and Paper No.65-C

respectively), reiterating similar facts that on the date of visit of the court

Amin i.e. 22.07.2008, Rakesh Kumar Jain was not available at the

residence and his wife, who had refused to receive summons had stated

that there is no possibility of returning Rakesh Kumar Jain till evening.

Learned trial court, relying upon the statement of witnesses of summon,

5 of 15

has treated the knowledge of defendant-appellant sufficient with respect

to the pendency of the suit. Learned trial court has further observed that

affixing notice on the front of the house is sufficient compliance of Order

5 Rule 17 C.P.C.

7.In my considered opinion, however, learned trial court has misread

and misinterpreted the affidavits filed by witnesses in the light of

observation made by Court Amin at the reverse side of the summon and

provisions relating to the service of notice as enunciated under Order 5

and Rules thereunder. Learned trial court has utterly failed to point out

contradiction between the endorsement made by the Court Amin and the

affidavits filed by witnesses of summon. As per endorsement and the

report submitted by Court Amin, wife of defendant has refused to accept

notice, however, no detail has been averred by the Court Amin that wife

has stated that no possibility returning of the defendant till evening.

However, witnesses on the summon have emphasized the fact in their

affidavits that the wife has stated that there is no possibility of returning

Rakesh Jain till evening. In my opinion, statement of witnesses are not

reliable in the light of the endorsement and the report made by Court

Amin wherein there is no whisper that defendant will not be available till

evening.

8.Apart from that, mere formality of obtaining the signature of

witnesses and affixing notice on the outer door or some other conspicuous

part of the house in which defendant ordinarily resides are not sufficient

to complete the valid formality of service of notice. Legislation is never

intended to avoid or bypass the personal service upon the defendant.

Order 5 Rule 12 denotes that endeavour should be made to serve the

defendant personally, unless he has an agent empowered to accept service.

In furtherance thereto, Order 5 Rule 15 C.P.C. denotes that, where neither

the defendant is available nor his authorized agent to be served, in that

condition notice has been directed to be served upon any adult member of

the family, whether male or female, who is residing with defendant. In

6 of 15

continuation of the procedure for service of notice, Rule 17 of Order 5

enunciates that in the eventuality, where none of three persons are

available to receive notice viz. defendant or his authorized agent or his

adult family member, duty has been casted upon the Process Server to

affix the summons on the outer door of the house or some other

conspicuous part of the house in which defendant ordinarily resides or

carries on business or personally work for gain, and, thereafter, Process

Server shall return the original copy of the notice to the court from which

it was issued. In the given circumstances of the present matter, Rule 15

and Rule 17 of Order 5 are relevant. Under Rule 15 service of notice

could be effectuated on any adult member of the family whether male or

female, who is residing with defendant, under the following conditions:

(i) There is no likelihood of his being found at the residence within a

reasonable time;

(ii) and he has no agent empowered to accept the service of summon on

his behalf.

9.In the eventuality of refusal made by adult family member of the

defendant to accept notice as enunciated under Rule 15, there is a

provision affixation notice on the conspicuous part of the house etc. under

Rule 17 in following conditions:

(i) where defendant or his agent or such other person (family member)

refuses to sign the acknowledgement, as required under Rule 16, or

(ii) where serving officer, after using all due and reasonable diligence,

cannot find the defendant.

As per Rule 17, under the following condition, defendant shall be treated

as “not found” i.e.

(i) who is absent from his residence at the time when service is sought to

be effected on him at his residence and

7 of 15

(ii) there is no likelihood of his being found at the residence within

reasonable time.

Considering the conditions as enunciated under Rule 15 and 17 of Order

5, the relevant ingredients to treat the defendant absent for the purposes of

effective service, is that "there is no likelihood of his being found at the

residence within reasonable time". Rule 17, one step ahead, entrust duty

upon the Process Server that "to use all due and reasonable diligence"

intending to find out the defendant.

10.In the instant matter, I did not find any endeavour made by the

Court Amin (Process Server) to discharge his duty properly as entrusted

upon him under Rule 12, 15 and 17 of Order 5. A simple statement of wife

of defendant-appellant on the first date of visit of the Process Server,

wherein wife has refused to accept the notice and shown unavailability of

her husband (defendant), has been treated to be sufficient by learned trial

court for the purpose of effective service of notice upon the defendant. No

discussion has been made by learned trial court as to what "due and

reasonable diligence" has been exercised/performed by the Process Server

(Court Amin) before affixing the notice on the conspicuous place of the

house. It is also not made clear by the Process Server and the learned trial

court that under what circumstances they came to conclusion that there is

no likelihood of defendant being found at the residence within a

reasonable time. There is nothing on the record to demonstrate that the

Court Amin has made any endeavour (apart from the first visit) with “due

and reasonable diligence” to find out the defendant-appellant. I did not

find any justifiable ground to make out a case that defendant-appellant

was not likely to be presented or found at his residence within reasonable

time.

11.The Hon'ble High Court of Madras has expounded in the case of

Abdul Salam Rowther vs. State Bank of India decided on 19.03.1993,

(MANU/TN/0487/1993), that before treating the service of notice,

8 of 15

effective compliance of provisions as enunciated under Order 5 has to be

followed properly. For ready reference paragraph nos.7 & 8 of the

aforesaid judgement is quoted hereinbelow:

"7. In Mrs. Emkamma Bai v. Ravikumar (1992) 1 L. W. 54, the duty of the

process server under Order 5, Rule 15, C.P.C. has been stated by Srinivasan, J in

this manner. Under Order 5, Rule 15, C.P.C., it is an essential precondition that

the process-server should ascertain whether there was likelihood of the defendants

3 and 4 being found in the residence within a reasonable time. If the defendants 3

and 4 could be found at their residence within a reasonable time, then the process-

server should wait or go to the residence of the defendants once again on another

day and try to serve on them at their residence personally. In case where the

defendants may not be found at their residence within a reasonable time, the

process-server could serve the summons on any adult member of the family,

whether male or female, residing with such defendant. As the process-server has

not ascertained such fact in the present case and has not made any reference in the

affidavit to the factum of his ascertaining as to whether there is any likelihood of

the defendants being available for service at their residence within a reasonable

time, the service of summons on a person, who has described himself as the 4th

defendant's brother and 3rd defendant's son is not a valid service. It cannot be

countenanced in law as service within the meaning of Order 5, Rule 15, C.P.C. In

Kuttiappa v. Rangasami MANU/TN/0456/1992: (1992) 2 MLJ 362, also

Srinivasan, J. has reiterated the procedure to be followed as under.

Under Order 5, Rule 15, C.P.C., if the defendant is absent from his residence at

the time when the service of summons is sought to be effected on him, the

process server must be satisfied, (i) that there is likelihood of the defendant

being found at the residence within a reasonable time, and (ii) he had no agent

empowered to accept the service of summons on his behalf and in that event,

service may be made on any adult member of the family, whether male or

female, who is residing with him. Order 5, Rule 17 is to the effect that when the

defendant or his agent refuses to sign the acknowledgment or where the serving

officer, after using all due and reasonable diligence cannot find the defendant

who is absent from his residence and there is no likelihood of his being found at

the residence within a reasonable time and if there is no agent or other person

to receive the summons, the Serving Officer shall affix a copy of the summons

on the outer door or some other conspicuous part of the house in which the

defendant ordinarily resides and shall then return the original to the court with

report endorsed thereon or annexed thereto stating that he has so affixed the

copy, the circumstances under which he did so and, the name and address of

the person by whom the house was identified and in whose presence the copy

was affixed.

8. It does not appear from the records in this case that any endeavour has been

made to follow the procedure prescribed in Order 5, C.P.C. in the service of

summons as already referred to. Rule 12 of Order 5 requires that whereever it is

practicable, service shall be made on the defendant in person, unless he has an

9 of 15

agent empowered to accept service in which case service on such agent shall be

sufficient. Under Order 9, Rule 6 C.P.C., where the plaintiff appears and the

defendant does not appear when the suit is called on for hearing, then,

(a) if it is proved that the summons was duly served, the Court may make an order

that the suit be heard ex pane.

In this case, there is no record to indicate that the Court was satisfied that there

was due service of summons.”

12.It is also apposite to mention that while proceeding with the matter

ex-parte against the defendant-appellant, vide order dated 11.12.2018,

learned trial court has simply shown the absence of the defendant and

ordered to be proceeded ex-parte. However, no specific finding has been

returned with respect to the effective service of notice upon the defendant

as required under Order 9 Rule 6 (a) C.P.C.

13.It is pertinent to be noted as well that to prove the effective service

of notice upon defendant under Order 5 Rule 17, Process Server/ Court

Amin has to verify the return of summon by filing his personal affidavit

as enunciated under Order 5 Rule 19 C.P.C. Return of summon in case not

verified by the affidavit of Serving Officer, court shall examine him on

oath, however, in case, it has been verified, court may examine him and

may make such further enquiry in the matter as it think fit. After such

examination, court shall either declare that summon has been duly served

or pass an order for such service as it thinks fit. In the matter in hand

learned trial court, while passing the order impugned has not complied

with the provisions as enunciated under Order 5 Rule 19 C.P.C.

14.Therefore, in this conspectus as above, I am of the view that the

learned trial court has failed to consider the relevant provisions for the

effective service of notice upon defendant-appellant as enunciated under

Order 5 Rule 12, 15, 17 and 19 C.P.C.. Thus, service of notice upon the

defendant no.2 cannot be treated to be sufficient for the purposes of

deciding the suit ex-parte or for the purposes deciding the delay in filing

the restoration application against the ex-parte decree.

10 of 15

15.None filing of separate formal application under Section 5 of the

Limitation Act, for the condonation of delay in filing the restoration

application against the ex-parte judgement and decree dated 13.11.2009

has also been taken as a vidal ground by learned trial court while

dismissed the restoration application on the ground of latches. In this

respect, learned counsel for the plaintiff-respondent has cited the case of

Sneh Gupta (supra) and contended that formal application under Section

5 of Limitation Act is necessary. However, learned counsel for the

appellant has submitted that separate formal application for the

condonation of delay under Section 5 of Limitation Act is not required, in

case sufficient ground is made out to prove bona-fide conduct of the

defendant. He has place reliance on the judgement of Sesh Nath Singh

(supra). Perusal of restoration application dated 12.09.2011 reveals that in

the prayer clause of the application, defendant-appellant has sought relief

for the condonation of delay as well with an averment that in case his

application is found beyond prescribed period of limitation, he may be

accorded benefit under Section 5 of the Limitation Act. On the premise of

prayer made by the defendant-appellant in the restoration application, this

fact is quite distinguishable from the facts of case Sneh Gupta (supra)

relied upon by learned counsel for the plaintiff-respondent. There is no

such observation made by the Hon'ble Supreme Court in the aforesaid

cited case, that even after relief sought for the condonation of delay, same

cannot be entertained for want of proper application under Order 5 of the

Limitation Act. Even otherwise, case of Sesh Nath Singh (supra) is

subsequent to the case of Sneh Gupta (supra). As per established law, in

the matters, if two irreconcilable decision of the Hon'ble Supreme Court

delivered by Bench of equal strength, the latter decision of the Hon'ble

Supreme Court will prevail. Thus, in the subsequent judgment of Sesh

Nath Singh (supra), the Hon'ble Supreme Court has expounded that even

in absence of the formal application delay can be condoned, if there are

sufficient material on record disclosing sufficient cause for the delay. In

11 of 15

the matter in hand cause shown by the defendant-appellant for delay in

filing the restoration application is quite sufficient and convincing.

Therefore, in the light of the prayer made by defendant-appellant for

granting benefit under Order 5 of the Limitation Act, defendant-appellant

cannot be forced to file separate formal application for the condonation of

delay under Section 5 of the Limitation Act. As such, in the light of the

facts as discussed above, case of the defendant-appellant is liable to be

treated within prescribed period of limitation from the date of knowledge

i.e. 09.09.2011, under the provisions of law as enunciated under Article

123 of the Limitation Act.

16.So far as the compliance of Rule 89 of General Rule Civil is

concerned, as submitted by learned counsel for the appellant, I am of the

view that in light of the fact wherein case was already ordered to be

proceeded ex-parte by order dated 11.12.2008, subsequent transfer order

dated 28.01.2009 has not got much relevance for the purposes of issuance

of fresh notices to the parties under Rule 89 of General Rule Civil.

17.Even otherwise, in the matter of delay court should conscious and

make endeavour to do complete justice to both the parties appearing

before him. It is settled law that all Courts of law are established for

furtherance of interest of substantial justice and not to obstruct the same

on technicalities. Reference-- Jai Jai Ram Manohar Lal Vs. National

Building Material Supply; AIR 1969 SC 1267, wherein it has been held

that the substantial justice and technicalities, if pitted against each other,

the cause of substantial justice should not be defeated on technicalities.

No procedure in a Court of law should be allowed to defeat the cause of

substantial justice on some technicalities. Reference - Ghanshyam Dass

& Ors. Vs. Dominion of India & Ors., AIR (1984) 3 SCC 46.

18.Apart from that in recent judgment of Bhivchandra Shankar More

vs. Balu Gangaram More & Ors (decided by Hon'ble Supreme Court on

07.05.2019), reported in 2019(6) SCC 387, it is expounded that in

12 of 15

condoning the delay "sufficient cause" should be given liberal

construction so as to advance substantial justice. The relevant paragraph

nos. 15 and 16 of the aforesaid judgment are being quoted herein below:-

"15. It is a fairly well settled law that "sufficient cause" should be given liberal

construction so as to advance sustainable justice when there is no inaction, no

negligence nor want of bonafide could be imputable to the appellant. After

referring to various judgments, in B. Madhuri, this Court held as under:-

"16. The expression "sufficient cause" used in Section 5 of the Limitation Act,

1963 and other statutes is elastic enough to enable the courts to apply the law in

a meaningful manner which serves the ends of justice. No hard-and-fast rule has

been or can be laid down for deciding the applications for condonation of delay

but over the years courts have repeatedly observed that a liberal approach needs

to be adopted in such matters so that substantive rights of the parties are not

defeated only on the ground of delay."

19.Observing that the rules of limitation are not meant to destroy the

rights of the parties, in N. Balakrishnan v. M. Krishnamurthy (1998) 7

SCC 123, this Court held as under:-

"11. Rules of limitation are not meant to destroy the rights of parties. They are

meant to see that parties do not resort to dilatory tactics, but seek their remedy

promptly. The object of providing a legal remedy is to repair the damage caused

by reason of legal injury. The law of limitation fixes a lifespan for such legal

remedy for the redress of the legal injury so suffered. Time is precious and

wasted time would never revisit. During the efflux of time, newer causes would

sprout up necessitating newer persons to seek legal remedy by approaching the

courts.

So a lifespan must be fixed for each remedy. Unending period for launching the

remedy may lead to unending uncertainty and consequential anarchy. The law of

limitation is thus founded on public policy. It is enshrined in the maxim interest

reipublicae up sit finis litium (it is for the general welfare that a period be put to

litigation). Rules of limitation are not meant to destroy the rights of the parties.

They are meant to see that parties do not resort to dilatory tactics but seek their

remedy promptly. The idea is that every legal remedy must be kept alive for a

legislatively fixed period of time." As pointed out earlier, an appeal under

Section 96 CPC is a statutory right. Generally, delays in preferring appeals are

required to be condoned, in the interest of justice, where there is no gross

negligence or deliberate inaction or lack of bonafide is imputable to the party

seeking condonation of delay."

20.In this conspectus as discussed above, I am of the considered view

that learned trial court has illegally denied to extend the benefit under

Section 5 of the Limitation Act and rejected the restoration application.

Defendant-appellant has been deprived of from an adequate opportunity

13 of 15

of hearing in original suit which has been decided ex-parte, resulted into

depriving the defendant from his property which was subject matter of the

sale deed dated 02.02.1994. There is no proper application of judicial

mind while rejecting the restoration application filed on behalf of

defendant-appellant. Delay in filing the restoration application is liable to

be condoned and the restoration application is liable to be allowed as well.

Order under challenge is illegal, unwarranted under the law and infirm

which is liable to be quashed.

21.Resultantly, instant First Appeal From Order is allowed and the

judgement and order dated 10.12.2021 passed by learned trial court

dismissing the restoration application moved on behalf of the defendant-

appellant under Order 9 Rule 13 C.P.C. is hereby quashed and said

restoration application is allowed. Consequently, ex-parte judgement and

decree dated 13.11.2009 passed by learned District Judge, Court No.5,

Muzaffar Nagar in Original Suit No.648 of of 2008 (Julfkar Ali vs.

Rakesh Kumar Jain) is quashed as well and Original Suit No.648 of 2008

is restored to its original number. Parties are relegated to the trial court.

Suit shall be decided afresh in accordance with law after giving

opportunity of hearing to the parties concerned.

22.Before parting the matter, counsel for the parties have prayed for

issuing a direction to the court below for expeditious disposal of the suit.

Having considered the peculiar facts and circumstances of the present

case, wherein suit was decreed ex-parte on 13.11.2009 resulted into the

cancellation of the registered sale deed dated 02.02.1994, it would be

befitting to issue a direction for expeditious disposal of the suit. As such,

this Court trust and believe that learned trial court shall make all

endeavour to decide the suit within 12 months from the date of

appearance of the parties along with the certified copy of this order.

23.Both the parties are hereby directed to appear before the trial court

concerned and move an appropriate application, along with the certified

14 of 15

copy of order of the date, on or before 22.01.2024. Defendant-appellant is

hereby directed to submit his written statement along with relevant

documents relied upon by him on or before the next date fixed by this

Court i.e. 22.01.2024, so that, unnecessary time may not be wasted in

filing the written statement and trial could be expedited within a stipulated

period as directed above.

Order Date :- 22.12.2023

Jitendra

15 of 15