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Uttarakhand High Court · body

2008 DIGILAW 199 (UTT)

SANJAY KUMAR v. UNION OF INDIA

2008-05-02

B.C.KANDPAL

body2008
JUDGMENT By way of this petition, under Article 227 of the Constitution of India, the petitioner has sought the relief for quashing the order dated 23.12.2002 passed by District Judge Nainital, in M.C.A. No. 14/2001 and order dated 5.9.1992, passed by Civil Judge (S.D.), Nainital in Misc. Case No. 70/1998, contained in Annexure Nos. 1 and 2 to the writ petition. 2. The facts of the petition, in brief, are that suit bearing No. 129 of 1991 was filed by respondent praying for decree of Rs. 45,799-15P against the petitioner on account of the loss and damages to the vehicle which is alleged to have been caused by the Truck No. USR 6954 of the petitioner, which was coming from opposite direction on 24.08.1989. The suit was decreed exparte against the petitioner for a sum of Rs. 45,799-15P, vide order dated 5.9.1992, passed by Civil Judge (S.D.) Nainital. Against the said exparte order, the petitioner filed an application under Order 9, Rule 13 C.P.C. for setting aside the order, along with delay condonation application U/S 5 of the Limitation Act. The application was rejected by the Civil Judge, on the ground of delay vide order dated 24.7.2001. Feeling aggrieved, the petitioner preferred an appeal which was dismissed by the District Judge, Nainital vide impugned order dated 23.12.2002. 3. The petitioner has preferred the petition on the ground that the petitioner was not served with the notice and the exparte order has been passed against the provision of law. According to him, the publication of summons was done in the News Paper Amar Ujala of Bareilly Edition, whereas the petitioner is resident of Bijnor, where Amar Ujala of Meerut Edition is in circulation, therefore, the petitioner had no notice about the suit for recovery. It is also alleged that the petitioner has not received any registered letter. The lower court rejected the contention of the petitioner on the ground of delay without appreciating the genuine reasons explained by him. The suit has been decreed exparte and there was no occasion for the petitioner to put forth his grievance and in this manner prejudice has been caused to the petitioner. It has also pleaded in the petition that the impugned order has been passed in violation of principle of nature justice and is liable to be set aside. 4. The suit has been decreed exparte and there was no occasion for the petitioner to put forth his grievance and in this manner prejudice has been caused to the petitioner. It has also pleaded in the petition that the impugned order has been passed in violation of principle of nature justice and is liable to be set aside. 4. The Union of India contested the petition by filing counter affidavit, denying the facts mentioned in the writ petition and alleged that the truck of the respondent bearing registration BA No. 790-D-343543-N 6.5 Ton LPT met with an accident with Truck No. USR 6954 due to rash and negligent driving of the said Truck USR 6954. An enquiry was held by respondent in the matter and it was found that the damage to the truck and injuries sustained by the driver of the Military Truck was only due to rash and negligent driving of the private truck. It has been alleged in the counter affidavit that the petitioner has intentionally and deliberately avoided the process of the court. It is also asserted in the counter affidavit that the Newspaper Amar Ujala is having a wide circulation and it is wrong to state that the paper is not covering the area of Bijnor. The notices by ordinary course and registered posts were not returned back and despite of receiving the same the petitioner has avoided to contest the case. Both the courts below have recorded concurrent finding of fact and the same is not liable to be disturbed in this petition. 5. None has appeared on behalf of the respondent. Heard Sri Sudhir Singh, learned counsel for the petitioner and perused the record. 6. Perusal of record shows that the summons were sent to the petitioner on the given address by registered posts as well as ordinary posts but he deliberately avoided the service, hence the notice was published in the Amar Ujala Newspaper dated 9.6.1992, and the service was found to be sufficient through publication, hence the case was decreed exparte against the petitioner vide impugned judgment and order dated 5.9.1992. The Trial Court has rejected the plea of the petitioner that he resides in a backward village where the registered notice sent by the court did not reach. The Trial Court has rejected the plea of the petitioner that he resides in a backward village where the registered notice sent by the court did not reach. It is pertinent to mention here that the execution proceeding against the petitioner is pending before Civil Judge (S.D.) Bijnor, and in the said proceeding also the address of the petitioner is the same as has been given in the original case. The petitioner has not disputed this fact before the trial Court. The trial court has recorded a finding that in execution proceeding also the petitioner inspite of information did not appear in court, and he is in habit of avoiding his presence in courts to contest the proceedings pending against him. 7. It is also relevant to mention here that in the instant case the exparte decree was passed in the year 1992 while the application under Order-9, Rule 13 C.P.C. was filed in 1998, after a gap of six years. The Courts below have rightly taken note of the fact that the service upon petitioner is not only on the basis of publication in Newspaper but registered notices were sent twice apart from sending notices several times by ordinary course to the petitioner on the given address and the same were not received back. Both the courts below have recorded concurrent finding of fact on the point of service of summons upon the petitioner. 8. In view of the concurrent finding of the fact recorded by both the courts below and in the peculiar facts of the case that notices were sent to the petitioner several times by ordinary course and twice by registered post and the same did not return back to the issuing court; notice was published in the daily Newspaper, distributed all over the region; and a long delay of more than six years in filing the application under Order-9, Rule 13 C.P.C., the order passed by the court below is self-explanatory and the court below has touched all the aspects of the matter in deciding the case, hence, I do not find any just and reasonable ground to set aside the impugned orders passed by both the courts below. 9. The petition lacks merit and is liable to be dismissed. 10. Accordingly, the writ petition is dismissed. No order as to costs.