NAGA ESTATE & DEVELOPERS PVT.LTD Vs. MAHIPAL

JUDGEMENT

(1.) Challenge in the present petition is to the order dated 23.11.2019 (P-6), passed by the learned Civil Judge (Junior Division), Gurugram, whereby application filed by the plaintiff under Order 9 Rule 4 CPC read with Section 151 CPC was accepted against order dated 23.7.2018 (P-2) passed under Order 9 Rule 2 CPC.

(2.) Facts relevant for the purpose of decision of the present petition are that the plaintiff (respondent No.1 herein) had filed a suit on 20.5.2013 for declaration with the relief of possession relating to suit property against the present petitioner along with others. Initially, the defendants could not be summoned as the plaintiffs failed to file the process fee. Thereafter, even defendants No.3 to 6 were served but defendants No.1 and 2 could not be served. The trial Court vide order dated 6.11.2015 directed that summons are required to be served upon defendants No.1 and 2 by all modes except publication. However, defendants No.1 and 2 could not be served by the plaintiff. On 2.7.2018, the trial Court granted one last opportunity to the plaintiff to furnish complete/correct addresses of defendants No.1 and 2 failing which necessary consequences under O.9 R1.2 CPC would follow.

(3.) After dismissal of the suit against defendants No.1 and 2, pleadings were completed. The plaintiff also failed to lead its evidence and the same was closed by order dated 11.2.2019. During the period of recording of evidence led by the defendant, the plaintiff filed an application under 0.9 R1.4 CPC read with S.151 CPC for restoration of the suit against defendants No.1 and 2 and under 0.5 R1.20 CPC for issuance of notice to them through publication. Notice of the said application along with application for condonation of delay was issued to defendants No.3 and 4, who filed their reply to the said applications. After hearing arguments of counsel for the parties, the trial Court passed the impugned order dated 23.11.2019 (P-6) allowing the application of the plaintiff.