RITU PISTRITTO Vs. SWATANTRA KUMAR

JUDGEMENT

(1.) HEARD Mr. Sidhartha Singh, the learned counsel duly assisted by Mr. D. Barthwal, the learned counsel for the petitioner and Mr. Ramji Srivastava, the learned counsel duly assisted by Mr. Deepak Sharma, the learned counsel for the respondent.

(2.) THE present writ petition has been filed against the order dated 29.05.2010 passed by the District Judge, Dehradun in Misc. Civil Appeal No.76/2010, whereby the District Judge allowed the appeal and has set aside the order passed under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as 'C.P.C.') and has further set aside the decree passed by the trial court.

(3.) IT transpires that the order of the High Court was filed before the trial court on 27th August, 2009. Since the trial court was vacant, the file was placed before the District Judge, who by an order of the same date, transferred the case to the court of the Vth Additional Civil Judge (S.D.), Dehradun. The relevant file was placed before the court on 28th August 2009 and the trial court issued notice to the counsel for the defendant as required under Rule 89-A of the General Rule (Civil) intimating him that the case would be taken up on 28th August, 2009. The process server intimated the court that the counsel for the defendant Sri J. K. Jain could not be found and that his Munshi (Clerk) had orally informed that Sri J. K. Jain was no longer appearing as the counsel for the defendant and that the file of the case had been taken away by the defendant. In the light of the report submitted by the process server, the court below found that the notices had not been served and issued directions for the issuance of a fresh notice and fixing 29th August, 2009 On 29th August, 2009, the process server again as the next date. submitted a report intimating that the chamber of Sri J. K. Jain was locked and, therefore, the notices could not be served. In the light of this report, the court fixed 31st August, 2009 and directed that fresh steps be taken for the issuance of notice to the counsel for the defendant. On 31st August, 2009, the plaintiff moved an application 20C