Dismissed

Samse Alam v. Civil Judge (Junior Division) Jaunpur and Another

Allahabad HC11 Dec 2018A227/9265/2018

Case brief

AI extract

What is this about?

This writ petition under Article 227 sought a direction to decide a temporary injunction application expeditiously. The High Court held that the trial court could not adopt substituted service via publication without recording satisfaction of evasion under Order 5 Rule 9 CPC. The petition was dismissed, allowing a fresh application for ordinary service.

What did the court decide?

Petitioner permitted to move a fresh application for ordinary service; present petition dismissed.

Samse Alam Vs Civil Judge (Junior Division)… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 36

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Case :- MATTERS UNDER ARTICLE 227 No. - 9265 of 2018 Petitioner :- Samse Alam Respondent :- Civil Judge (Junior Division) Jaunpur And Another Counsel for Petitioner :- Rajendra Kumar Singh Hon'ble Mrs. Sunita Agarwal,J.

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Heard learned counsel for the petitioner.

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The prayer in the present petition is to issue a direction to the Court of the Civil Judge (Junior Division), Gorakhpur to decide the temporary injunction application dated 13.12.2017, filed under Order 39 Rules 1 and 2 readwith Section 151 of the Code of Civil Procedure, in Original Suit no. 1377 of 2017 ( Samse Alam Vs. Mushtaq Ahmad ).

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Learned counsel for the petitioner submits that service of summons upon defendants is sufficient by publication. No-one has put in appearance nor any written statement has been filed. In case of non consideration of temporary injunction matter, the plaintiff would suffer irreparable loss.

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Taking note of this submission, a perusal of the order sheet indicates that notice upon the defendant was issued on 13.12.2017 with the observation that exparte injunction could not be granted in absence of the defendant. On 12.01.2018, the matter has been adjourned waiting service of summons upon the defendant. No satisfaction regarding service of summons upon the defendant by ordinary post, has been recorded by the court below on the dates fixed thereafter. On 28.05.2018, on an application filed by the plaintiff, permission was granted to take steps for service through publication. On 29.05.2018, the plaintiff had taken steps and on 04.08.2018, the court below has recorded satisfaction regarding service through publication.

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The order-sheet does not reflect that the Court below has adverted itself to the fact as to whether steps had been taken by the plaintiff for service of notice upon the defendants and that the defendants are avoiding service of notice sent through the process under Order 5 Rule 9 CPC.

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In absence of any such satisfaction being recorded, it was not open for the Court below to adopt the mode of substituted service through publication as per Order 5 Rule 20(1-A) CPC.

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The contention of learned counsel for the petitioner/plaintiff that the notice upon the defendants was sufficient so as to seek direction for expeditious disposal of the temporary injunction application in the instant petition, therefore, is found devoid of force.

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The petitioner is hereby permitted to move a fresh application seeking time to take fresh steps by ordinary mode of service under Order 5 Rule 9 CPC. If such an application is moved, the Court below shall pass necessary orders thereon.

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Subject to the above directions, the present petition is dismissed .

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Order Date :- 11.12.2018/Himanshu

Samse Alam v. Civil Judge (Junior Division) Jaunpur and Another

Case brief

What is this about?

What did the court decide?

Samse Alam v. Civil Judge (Junior Division) Jaunpur and Another

Case brief

What is this about?

What did the court decide?

What the court decided

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