DILBAGH SINGH Vs. DEPUTY DIRECTOR OF CONSOLIDATION BAREILLY

JUDGEMENT

(1.) PRESENT petition under Article 226 of the Constitution is directed against the order dated 27-9-1986 passed by the Deputy Director of Consolidation, respondent no. 1 allowing restoration application filed by Mangali, the respondent no. 5 chak holder no. 217 after holding that the service of notice on son, Jai Singh, respondent no. 6, who has a separate chak no. 103 would not be. taken to be sufficient notice on the father who has a separate chak no. 217.

(2.) MR. Satya Prakash, learned counsel for the petitioner urged that notice was served on Jai Singh chak holder no. 103, the son of Mangali who has common interest with his father, hence service of notice on son, was service of notice on the father. The report of the process server (Annexure 4, vide page 24 of the petition) evinces that the notice has been correctly served on the son before witnesses. The father was not available hence there was no justification for restoration as in view of second proviso and third proviso added by U. P. Amendment, the respondent no. 5, (Mangali) could have known about the date fixed, just on the basis of the irregularity in summons no exparte order could be set aside. Attention was drawn particularly to the provisions of Order 5 rule 15 and order 9 rule 13 of the Code of Civil Procedure (for short the Code). It was further urged that an application was filed by the counsel for the opposite parties there, that before deciding the revision an opportunity of hearing may be given to the opposite parties. The revision was decided thereafter on 20th April, 1986 after affording Mangali, respondent, opportunity of being heard, therefore order dated 27th September, 1989 allowing restoration application is manifestly erroneous and deserves to be quashed.

(3.) BROADLY speaking even assuming Order 9 rule 13 of the code to apply to the present case there are two conditions which have to be fulfilled before an exparte decree could be set aside. First is that the summon was not duly served on the defendant and in the alternative it has to be proved that the defendant was prevented from appearing when the case was taken up for hearing. Much emphasis by the legislature is that not only summons has to be served on the defendant but it has to be duly served. Only service of summons would not sufficient unless it has been duly served.