Allowed

Smt Akanksha Singh v. Gujral Associates Bareilly and 6 Others

Allahabad HC5 Aug 2024FAFO/330/2024

Case brief

AI extract

What is this about?

First appeal against an order rejecting an application under Order 9 Rule 13 CPC for setting aside an ex-parte decree. The High Court allowed the appeal, setting aside the contested order and remitting the matter to the trial court for fresh consideration with hearing within three months due to contradictory findings on knowledge of transfer and non-compliance of rules.

What did the court decide?

Impugned order setting aside recalled application under Order 9 Rule 13 CPC allowed; matter remanded to trial court for fresh decision with hearing within three months.

Smt Akanksha Singh vs Gujral Associates Bareilly… — Execution and Attachment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:126064

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Court No. - 35

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Case :- FIRST APPEAL FROM ORDER No. - 330 of 2024 Appellant :- Smt Akanksha Singh Respondent :- Gujral Associates Bareilly And 6 Others Counsel for Appellant :- Akshita Goel,Tarun Agrawal Counsel for Respondent :- Rahul Sahai,Satish Chandra Dubey

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Hon'ble Vipin Chandra Dixit,J.

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Heard Sri Tarun Agrawal, learned counsel for the appellant, Sri Rahul Sahai, learned counsel appearing on behalf of plaintiffsrespondents and perused the record.

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This first appeal from order has been filed on behalf of defendant no.4-appellant against the order dated 8.1.2024 passed by Civil Judge (S.D.)/FTC, Bareilly in Misc. Case No.15 of 2019 (Smt. Akansha @ Gudiya Vs. Gujral Associates and others) in Original Suit No.568 of 2014, by which the application filed by defendant no.4-appellant under Order 9 Rule 13 C.P.C. (Paper No.4Ga) was rejected.

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It is submitted by learned counsel for the appellant that Original Suit No.568 of 2014 was filed by plaintiffs-respondents for specific performance in the court of Civil Judge (S.D.)/F.T.C., Bareilly. The aforesaid suit was transferred on 16.5.2017 to the court of J.S.C.C. The suit was again transferred on 6.7.2018 from the court of J.S.C.C. to the court of Civil Judge (S.D.), Bareilly. No information regarding transfer of suit from the court of J.S.C.C. to the court of Civil Judge (S.D.), Bareilly was ever furnished to learned counsel for defendant no.4 by the trial court and the suit was decided ex-parte against the appellant/defendant no.4 vide judgment and decree dated 6.11.2018. It is further submitted that there was no compliance of Rule 89A of the General Rules (Civil). After having knowledge of ex-parte judgment, the applicant had filed application under Order 9 Rule 13 C.P.C. along with application for condonation of delay. The trial court vide order dated 20.1.2023 had allowed the application filed under Section 5 of Indian Limitation Act and condoned the delay in filing the application under Order 9 Rule 13 C.P.C. on payment of cost of Rs.1,000/-. The finding has been recorded by the trial court that there was no information sent by the court to the defendant no.4 about the transfer of case and defendant no.4 had no knowledge about the transfer of her case from the court of J.S.C.C. to the court of of Civil Judge (S.D.), Bareilly. The trial court has erred in rejecting the application filed under Order 9

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Rule 13 C.P.C. by impugned order dated 8.1.2024 by recording perverse and contradictory finding that appellant/defendant no.4 had knowledge about the transfer of case.

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On the other hand, Sri Rahul Sahai, learned counsel appearing on behalf of plaintiffs-respondents submits that defendant no.4 has full knowledge about transfer of her case from the court of J.S.C.C. to the court of of Civil Judge (S.D.), Bareilly as her pairokar Akram was appeared before the Civil Judge (S.D.), Bareilly on 23.7.2018 and put his signature on the order-sheet. Since the pairokar of defendant no.4 was present on 23.7.2018 in the court of Civil Judge (S.D.), Bareilly, the defendant no.4/appellant cannot say that she had no knowledge of transfer of her case from the court of J.S.C.C. to the court of of Civil Judge (S.D.), Bareilly. The trial court has rightly rejected the recall application filed by appellant.

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Considered the rival submissions of learned counsel for the parties and perused the record.

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From perusal of entire order-sheet of Original Suit No.568 of 2014, it is apparent that the aforesaid suit was transferred vide order dated 6.7.2018 from the court of J.S.C.C. to the court of of Civil Judge (S.D.), Bareilly and there was no compliance of Section 89A of the General Rules (Civil). The trial court has allowed the delay condonation application filed by the defendant no.4 in support of application filed under Order 9 Rule 13 C.P.C. vide order dated 3.1.2023 after recording the finding that the defendant no.4 had no knowledge about the transfer order dated 6.7.2018. The contrary reason has been given by learned trial court while rejecting the application filed under Order 9 Rule 13 C.P.C.

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The first appeal from order filed on behalf of appellant-defendant no.4 is allowed. The order dated 8.1.2024 passed by Civil Judge (S.D.), Bareilly dismissing the Misc. Case No.15 of 2019 filed in Original Suit No.568 of 2014 is set-aside.

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The trial court is directed to decide Misc. Case No.15 of 2019 filed by appellant-defendant no.4 under Order 9 Rule 13 C.P.C. in Original Suit No.568 of 2014 afresh in accordance with law after affording opportunity of hearing to the parties concerned, within a period of three months from today.

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Order Date :- 5.8.2024 Kpy

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Digitally signed by :- KAVLESHWAR PRASAD YADAV High Court of Judicature at Allahabad

Smt Akanksha Singh v. Gujral Associates Bareilly and 6 Others

Case brief

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Smt Akanksha Singh v. Gujral Associates Bareilly and 6 Others

Case brief

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