UNION OF INDIA Vs. A.M.MISHRA

JUDGEMENT

(1.) THE appeal impugns the judgment and decree dated 1 st April, 2004 of the Addl. District Judge, Delhi of dismissal of Suit No.115/2002 filed by the appellant for recovery of Rs.16,11,569.44p jointly and severally from the three defendants/respondents.

(2.) NOTICE of the appeal was issued and the Trial Court record requisitioned. The appellant/plaintiff did not take any steps for service of the respondents/defendant and vide order dated 27 th February, 2007 last opportunity was given to the appellant/plaintiff with the direction that if the appellant/plaintiff did not take steps the appeal shall be dismissed for non - prosecution. Thereafter, though steps were taken but ineffective. Ultimately notice was issued pursuant to order dated 10 th March, 2008. The said notices were received back with the report that the respondents/defendants No.1&2 were not found at the address furnished and the respondent/defendant no.3 had died. Thereafter again no effective steps were taken on behalf of the appellant/plaintiff, neither for furnishing fresh addresses of the respondents/defendant no.1&2 nor for substitution of the legal representatives of the respondent/defendant no.3. Ultimately on notice being issued it was reported that the respondent/defendant no.2 had also died. Thereafter also no steps were taken for substitution of legal heirs of the respondents/defendants no.2&3. As far as the respondent no.1 is concerned, he was ultimately ordered to be served by publication in the newspaper Times of India and was so served. The order dated 10 th September, 2013 of the Registrar (Appellate) records that the respondent/defendant no.3 had been ordered to be deleted from the array of defendants before the Trial Court itself. None appeared for the respondent/defendant no.1 despite publication. The respondent/defendant no.1 was vide order dated 8 th October, 2013 proceeded against ex parte. The appellant/plaintiff having not taken any steps for service of the legal heirs of the respondent/defendant no.2, the appeal in so far as against the respondent/defendant no.2 has abated. The counsel for the appellant/plaintiff has been heard.

(3.) THE respondent/defendant no.2, upon being served with the summons of the suit, besides written statement filed an application under Order 7 Rule 11 of the CPC on which the following preliminary issue was framed on 1 st November, 2002: -