JUDGMENT : SHARAD KUMAR SHARMA, J. This writ petition itself has got a bundle of intermingled facts, which has been sought to be attracted by the learned counsel for the parties, in order to justify their respective knowledge of the proceedings of Suit No. 57 of 2014, Santosh Chandra Vs. Sunder Lal and others, being the proceedings which was instituted under Section 176 of the U.P.Z.A. & L.R. Act, for partition of the holding in relation to the property, which was more appropriately described therein at the foot of the plaint. The Suit was instituted on 26.05.2014. 2. It’s not in controversy between the parties, that the proceedings under Section U.P.Z.A. & L.R. Act are governed by the provisions as contained under Section 341 of U.P.Z.A. & L.R. Act, which had in its applicability the provisions as contained under the Code of Civil Procedure, to be applied over all proceedings which are held under the Act, which is a special statute in itself. If that be so, then quite obviously, upon the institution of any of the proceedings for deciding a material right in relation to the parties to the suit, there has had to be a mandatory compliance of the provisions contained under Order 5 of the Code of Civil Procedure, so that the rival parities, who may be likely to be affected by any decree to be rendered in a suit preferred by the plaintiff, may have an ample of opportunity to contest the proceedings by filing a written statement under Order 8. Order 5 which in itself is a self contained provision which uses the word “issue and service of summons”. 3. There are two prime ingredients which are required to satisfied; one, that there has to be an “issue” of summons by the Court, before whom the proceedings are instituted and thereafter, only when the first part is satisfied, then the Court has an occasion to observe that ever the “service” of summons were sufficient, which could have entailed or enabled the Court to proceed ex parte for deciding the rights. The issue would be as to whether at all, the present petitioner had the knowledge of the aforesaid Suit No. 57 of 2014 or not. 4. The issue would be as to whether at all, the present petitioner had the knowledge of the aforesaid Suit No. 57 of 2014 or not. 4. What is peculiar in this case is that the Suit which was instituted on 26.05.2014 and upon its institution and the way it has been interpreted by the learned Senior Counsel for the respondent, is that when the Court had first passed an order dated 26.05.2014, which reads as under:- **is'kdkj d`- fu;ekuqlkj okn ntZ dj i=koyh fnukad 19-06-2014 dks izLrqr djsaA** The Court has observed to record the case and fixed it on 19.06.2014. No notices or summons were issued by this order of 19.06.2014 to the opposite parties. 5. The issue of debate as per the wisdom of this Court would be, as to whether this order would be an order under the first part of Order 5 which is to be determined, as to whether it was an order of issuance of notice which has been otherwise interpreted by the learned Senior Counsel for the respondents, that once the Court has entertained the proceedings and has fixed 19.06.2014, it would automatically be treated as to be an order of issuance of notice. 6. With all due reverence at my command, I am not in agreement with the argument as extended by the learned Senior Counsel for the respondents, for the reason being that Order 5 Rule 1 has been explicit in itself. It contains two parts to it; one, sub clause (1) of Rule 1 of Order 5 deals with the “institution of the proceedings”. The Institution of the proceedings is not to be misunderstood to be an issuance of notice as provided under Clause (2) of Rule 1 of Order 5, as clause (2) of Rule 1 of Order 5, uses the word “summons has been issued” and this connotation made under sub clause (2) of Rule 1 Order 5 has had to be read in consonance to the persons against whom the suit has been instituted as referred in sub-clause (1) of Rule 1 Order 5. Relevant provision of Order 5 Rule 1 of CPC is extracted hereunder:- “Summons(1) When a suit has been duly instituted, a summons may issued to the defendant to appear and answer the claim and to file the writ statement of his defence, if any, within thirty days from the date of service summons on that defendant; Provided that no such summons shall be issued when a defendant has appeal at the presentation of the plaint and admitted the plaintiff's claim : Provided further that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.;] (2) A defendant to whom a summons has been issued under sub-rule (1) may appear? (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. (3) Every such summons shall be signed by the Judge or such officer as appoints, and shall be sealed with the seal of the Court.” 7. Both the provisions of Order 5 Rule 1 of CPC are independent to one another. So far as the order dated 26.05.2014 is concerned, which has been read by the learned Senior Counsel for the respondents, as if, it was an order falling under sub-clause (2) of Rule 1 of Order 5, is a misnormer and is not acceptable by this Court and it cannot be so also under any logical circumstances to be interpreted, that it was an order of “issuing of summons”, to the persons or the defendants against whom the suit is instituted under sub Clause (1) of Rule 1 of Order 5. 8. What is peculiar in this case is if the entire order sheet is taken into consideration, we shouldn’t loose sight of the fact, that by the first order passed on 25.06.2014, the Court of Assistant Collector has recorded the case and fix 19.06.2014. In fact, the order dated 26.05.2014 never had an intention either express or implied to comply with sub-clause (2) of Rule 1 of Order 5 of issuance of summons. In fact, the order dated 26.05.2014 never had an intention either express or implied to comply with sub-clause (2) of Rule 1 of Order 5 of issuance of summons. Even on the next date too fixed i.e. 19.06.2014, the Bench Secretary of the Court has observed that the Presiding Officer was on an election duty and hence the case was fixed for 13.08.2014, the relevant order of which is extracted hereunder: **i=koyh izLrqrA iqdkj djkbZ xbZ ih-vks- egksn; fuokZpu dk;Z esa O;LFk gSa vr% vkns'k gqvk i=koyh fnukad 13-8-2014 dks is'k gksA** 9. Even the order dated 19.06.2014 cannot be interpreted to be a judicial order as passed by the Assistant Collector if it is to be taken as to be falling under sub-clause (2) of Rule 1 Order 5 to be ever remotedly construed as to be an order of issuance of notice. 10. The exception which has been attempted to be carved out by the learned Senior Counsel for the respondents is that on 19.06.2014, when the matter was taken up even in the absence of the learned Presiding Officer, the defendant had endorsed the order sheet and this endorsement in the order sheet is being construed as to be the presence of the defendant. This logic extended by the learned Senior Counsel for the respondents, that the endorsement made in the order sheet on 19.06.2014 would be deemed to be a knowledge to the defendant petitioner herein, is not acceptable by this Court, for the reason being that; one, in the absence of there being summons issued by the Court, it is highly improbable to believe, that a person would appear and endorse the order sheet and second, the petitioner in his pleading had specifically denied to have made any endorsement on 19.06.2014 and quite reasonably too, when the summons were not even issued, there was no question of endorsement to be made in the order sheet on the said date and thirdly, this logic extended by the learned Senior Counsel for the respondents, is not acceptable by this Court as procedurally it is not even presumed that it could be possible, that all the things would happen in one day i.e. the magical day of 19.06.2014 and which is an accepted fact by the respondents, when he filed the objection under Order 9 Rule 13 of CPC and objects the pleadings raised by respondents in para 5 by raising a pleading to the following effect:- ^^5- ;g fd dfFkr izkFkZuki= ds lkFk layXu 'kiFki= dcwy pan ds isjk 3 dk dFku xyr o vLohdkj gSA ;g dguk xyr gS fd 'kiFkdrkZ dks caVokjs ds ckn dh tkudkjh fnukad 26-07-2017 dks gqbZ gksA okLrfodrk ;g gS fd dcwy pan dks caVokjs ds ewy okn la[;k 57 o"kZ 2013&14 esa ekuuh; U;k;ky; }kjk fnuakd 19-06-2014 dks leu Hkstk x;k Fkk ftlesa fnukad 19-06-2014 dh frfFk fu/kkZfjr Fkh vkSj mDr frfFk ds fy, dcwy pan dks uksfVl izkIr gks x;k FkkA dcwy pan }kjk fgLlks ij dksbZ vkifŸk uk gksus ij dksbZ tokcnkok izLrqr ugha fd;k x;k rFkk U;k;ky; }kjk vfoHkkftr gksus ds vk/kkj ij mDr ckn esa fnukad 14-12-2015 dks foLr`r vkns'k ikfjr djrs gq, ,oa ;g foosfpr djrs gq, fd ^^lEcaf/kr i{kks dks fof/kor U;k;ky; ls uksfVl tkjh fd;s x;s gS rFkk tks ckn rkehy okfil izkIr gS rFkk i=koyh ij 'kkfey gSA^^ (Everything happened on one day i.e. 19.06.2014) 11. The pleadings raised in para 5 of the objection to the application under Order 9 Rule 13 is not digestible by this Court for the reason being, that it is highly improbable to believe that first of all the summons were issued on 19.06.2014, though it is contrary to the order sheet in absence of order of issuance of notice, secondly, that the summons were even served on 19.06.2014, which is once again not acceptable because even if it is presumed that the summons were sent, it cannot be possible that it would be served on the same day on 19.06.2014 itself and the defendants were able to present themselves in the Court by making an endorsement in the order sheet dated 19.06.2014. Thus, the learned counsel for the petitioner argued that about the knowledge attributed to the present petitioner about the proceedings in the context of the pleading raised in para 5, is not acceptable by this Court. Apart from it, if the entire order sheet (annexure 2 to the writ petition) is taken into consideration, till 31.03.2016, when the suit was said to have been decreed ex parte, there is not even a single whisper made by the Court Assistant Collector in the orders sheet that at any point of time the Court of Assistant Collector had issued notices/summons contemplated under Order 5 Rule 1 sub Rule 2. 12. Thus, in fact, apparently, the judgment dated 31.03.2016, does not seem to be a judgment which was at all rendered on merits after providing an opportunity of hearing to the defendant petitioner herein, hence would be treated to be an ex parte judgment. 13. The learned Senior Counsel for the respondents has attempted to draw an exception, though denied by the learned counsel for the petitioner, that on 01.04.2016, the defendant had made an application before the Court of Assistant Collector, which will be treated to be attributing a knowledge to the suit itself, which is a fact vehemently denied for the reason being, that even if it is presumed that the defendant petitioner had filed an application on 01.04.2016, it will yet again not satisfy the condition of Order 5, to treat it as to be issuance of summons, even if any stray information is imparted to the defendant from any other source about the rendering the judgment and decree dated 31.03.2016. 14. 14. The learned counsel for the petitioner had submitted that the application preferred under Order 9 Rule 13 by the present defendant seeking recall of the ex parte judgment dated 31.03.2016, would be bad in the eyes of law for the reason being that when the Court has directed to proceed the Suit ex parte by an order dated 14.12.2015 and in the absence of seeking to recall an order to proceed ex parte, the application under Order 9 Rule 13 would be bad in the eyes of law. 15. This argument is peculiar in its own nature. The reason being, that at the stage when the Application under Order 9 Rule 13 of CPC was preferred i.e. on 11.08.2017, as per the “principle of merger”, the order directing to proceed ex parte on 14.12.2015 stood merged with the final decree of 31.03.2016 as such, at that stage there was no action or cause for the petitioner to recall the order dated 14.12.2015 for the reason being, that its basic objective was to proceed ex parte has attained finality by rendering of the ex parte judgment dated 31.03.2016. Hence, it’s very purpose stands frustrated. 16. The question would be and as attempted to be pressed by the learned Senior Counsel for the respondents that the knowledge of the decree would be presumed to be attributed to the defendant /petitioner as to be on 26.07.2017, when the allegation is being leveled against the petitioner that since he had been entering into various sale transactions in relation to the property in dispute which has been placed on record by way of the supplementary affidavit. 17. Even if the supplementary affidavit as filed by the respondents’ counsel annexing therewith various sale deeds executed by the petitioner is concerned, that in itself will not lead to an automatic inference that there was a knowledge of the suit. If they have proceeded to sell the property, that would be altogether an independent cause of action for the plaintiffs/respondents to resort to their appropriate remedies as available to them under law against the sale deeds executed by them. 18. If they have proceeded to sell the property, that would be altogether an independent cause of action for the plaintiffs/respondents to resort to their appropriate remedies as available to them under law against the sale deeds executed by them. 18. When the Application No. 6 of 2017, under Order 9 Rule 13 of CPC of the present petitioner stood rejected by the Court of Assistant Collector, by an order dated 10.11.2017, that was subjected to Revision under Section 333 of the U.P.Z.A. & L.R. Act being Revision No. 16 of 2017/18, Kabul Chand Vs. Santosh and others. 19. If the principal order dated 10.11.2017 is taken into consideration of rejecting the application, it was primarily based upon the ground that there was no supporting Delay Condonation Application filed by the petitioner along with Order 9 Rule 13. 20. This argument is yet again not sustainable for the reason being, that the provisions contained under Section 5 of the Limitation Act are self-explanatory in nature, and under law, no independent application seeking for condonation of delay is mandatorily required to be filed for seeking the condonation of delay, particularly once the cause of delay is self-explained in the application itself. Thus, this argument that the application under Order 9 Rule 13, in the absence of being accompanied by the delay condonation application, was not maintainable, is not acceptable by this Court because primarily if the application itself and the pleading raised therein pertaining to the knowledge attributed to the applicant to the application under Order 9 Rule 13, it falls well within the period of limitation prescribed under the Limitation Act for filing of an application under Order 9 Rule 13, that would be calculated from the date of knowledge and not from the date of ex parte decree and that too when in the instant case there was no issuance of notice to the defendant at all at any stage of the proceeding as per order sheet as required under law under Order 5 of CPC. 21. What is more pressing is that when the order was put to challenge before the revisional Court, emanating from Misc. 21. What is more pressing is that when the order was put to challenge before the revisional Court, emanating from Misc. Case No. 6 of 2017 rejecting the application under Order 9 Rule 13 for the reasons best known to the Court of Assistant Collector, the Court has travelled beyond the pleadings and the subject by observing that the partition was based upon a family partition which has already taken place. If this be so, the family partition, in case if it was a foundation of the proceedings under Section 176, then at that point of time, the plaintiff should have been fair enough in the sense that while they were contesting the proceedings before the Court of Assistant Collector under Section 176, they ought to have taken a plea with regard to the effect of family partition, and once that was not taken, and no finding to the contrary has been recorded in the judgment and decree dated 31.03.2016, the plaintiffs cannot be permitted to take the benefit of the alleged theory of family partition, and also the revisional Court at least couldn’t have derived the theory of family partition for the purposes of deciding the revision against the rejection of an Application under Order 9 Rule 13 which ought to have confined to be considered based on the pleading and objection raised by the plaintiffs. 22. The revisional Court while passing the order, in fact has even travelled beyond its jurisdiction by venturing into the issue which was not even the subject matter between the parties at any stage of the proceedings and hence the order of revisional Court too would be vitiated and be beyond the scope of the pleadings raised by the parties. 23. There are various facets which the learned Senior Counsel for the respondents had attempted to argue that the knowledge of the pendency of the proceedings was well attributed to the petitioner in view of the Application on 01.04.2016 as objected by them in para 5 of their objection to the Application under Order 9 Rule 13. 24. 23. There are various facets which the learned Senior Counsel for the respondents had attempted to argue that the knowledge of the pendency of the proceedings was well attributed to the petitioner in view of the Application on 01.04.2016 as objected by them in para 5 of their objection to the Application under Order 9 Rule 13. 24. So far as the knowledge part is concerned, any subsequent application, even if it is taken as to be a knowledge to the proceedings under Section 176, it will not be read as to be a substitutive provision to the basic parameters required to be followed by the Court of Assistant Collector for compliance of the provisions contained under Order 5 of the CPC to be read with Section 341 of U.P.Z.A. & L.R. Act and once the very genesis of the proceedings happens to be in violation of the provisions contained under 341 of U.P.Z.A. & L.R. Act to be read with Order 5 of CPC, it will be deemed that the judgment and decree rendered on 31.03.2016 was an ex parte decree without hearing the petitioner defendant, and hence it was required to be recalled by considering the application under Order 9 Rule 13 because even otherwise the law construed that when a substantive right by way of a succession is an issue which has to be decided, it has to be decided on merit after providing an effective opportunity of hearing to the party concerned, and since that is not apparently depicted from the order sheet of the proceedings of Suit No. 57 of 2013-14, the entire proceedings, till the decision/decree was rendered on 31.03.2016, would be deemed to be an ex parte judgment and decree that cannot be sustained as such. Thus the rejection of an application under Order 9 Rule 13 on the basis of about the knowledge! on the basis of about effect of non filing of an application under Section 5 of the Limitation Act! will not be sustainable because the knowledge of filing of an application under Order 9 Rule 13 will be from the date when the knowledge is actually and effectively attributed to the present applicant which would be for the first time when he got the knowledge in 2017 and thereafter he had filed an Application under Order 9 Rule 13 on 11.08.2017. 25. 25. For the aforesaid reasons, the impugned orders which are under challenge are vitiated from their genesis and they cannot be sustained in the eyes of law. Thus the writ petition is allowed. The impugned orders are hereby quashed. The matter is relegated back to the Court of Assistant Collector, First Class, to re-decide the Suit No. 57 of 2013-14, Santosh Chandra Vs. Sunder Lal and others, on its own merit in accordance with the procedure prescribed under the U.P.Z.A. & L.R. Act.