Sharda Prasad Pandey vs Board oof Revenue and Others

Rajiv Sharma, J.—Case called out in the revised list. Though the names of S/Sri A.K. Singh, Arvind K. Shukla, Hariom Ojha, Keshav K. Srivastava and Shashi Nandan have been printed in the cause-list, none responds for the contesting Respondents.

Undisputed facts are that a Suit bearing No. 101 of 1966 u/s 229-B of The Uttar Pradesh Zamindari Abolition and Land Reforms Act was instituted by the opposite party No. 4 and the same was decreed by means of order dated 1.3.1967.

Learned Counsel for the Petitioner submits that the Petitioner Was in Government Service and was posted in Bihar and as such, he was not aware of the proceedings which were initiated and the said proceedings were concluded by means of fraud, insofar as no summons were served either on the Petitioner or his father. Therefore, when he'' came to know the aforesaid decree, he preferred an application under Order 9, Rule 13 CPC for setting aside the ex parte order duly supported by an application along with an application u/s 5 of Limitation Act that a Suit has been decreed, without effecting service and a fraud has been played upon the Court.

Placing reliance on State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, it has been emphasized that the Court should decide the case on merits rather than rejecting the application for condonation of delay on technical grounds.

On perusal of the order passed by the Sub-Divisional Magistrate, it reflects that no finding has been recorded with regard to fraud, but the application moved u/s 5 of Limitation Act has rejectedly simply on the ground that the same has been preferred after lapse of 19 years. As regards service upon the Petitioner''s father, it has been submitted that though the signatures did not find place, yet an affidavit has been filed by one Ram Agya, in support of the averments. As he has not been produced, an adverse inference has been drawn. In umpteen cases, the Hon''ble Apex. Court and this Court have repeatedly held that the cases should not be dismissed simply on technical grounds and the Court below should make an endeavour to decide the same on merits. Admittedly, the case has not been decided on merits and it is only on limitation, the application has been rejected.

I find force in the submission of the learned Counsel for Petitioner that the Court should have taken liberal view while passing the order on the application for condonation of delay. In Salem Advocate Bar Association Vs. Union of India (UOI), the Hon''ble Supreme Court has held as under:

The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure, which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are hand maid of justice and not its mistress.

Accordingly, the writ petition is allowed and the impugned orders dated 14.12.1988 passed by the opposite party No. 3, dated 9.12.1994 passed by the Respondent No. 2 and dated 11.11.1997 passed by the opposite party No. 1 are hereby quashed and the matter is remanded to the Sub-Divisional Magistrate, who shall decide the matter, in accordance with law, within a maximum period of six months from the date of presentation of a certified copy of this order, after affording opportunity of hearing to all the parties, as the matter is lingering since 1966.