1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1305 of 2007 (M/S) (Old No. 29145 of 1997) [ Kalimullah @ Kalim Qureshi S/o Rahmat Ullah R/o Niyajganj, Rajpur, Almora Tehsil and District Almora. ...…………. Petitioner Versus 1. District Judge, Almora. 2. Nagar Palika, Almora through its Executive Officer. ...………… Respondents Mr. K.C. Tiwari, Advocate for the petitioner. Mr. H.V. Shah, Advocate for respondent No. 2. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioner has sought writ in the nature of certiorari, quashing the order dated 04.07.1997, passed by District Judge, Almora, in Misc. Civil Appeal No. 03 of 1996; Nagar Palika, Almora Vs. Kalimullah, whereby said authority has allowed the appeal, and further allowed the application under Order 9 Rule 13 of the Code of Civil Procedure, 1908 (for short C.P.C.). 2 2) Heard learned counsel for the parties and perused the papers on record. 3) Brief facts of the case are that Original Suit No. 81 of 1990 was instituted by the petitioner / plaintiff before the trial court (Civil Judge, Almora) for damages amounting to Rs. 15,500/- on account of alleged illegal demolition of his constructions. It appears that summons were issued in said suit to the defendant (Nagar Palika, Almora / present respondent No. 2). The defendant failed to appear on the date fixed by the court. On this, the suit proceeded ex-parte. The trial court vide its judgment and decree dated 27.03.1992, decreed the suit ex-parte against the defendant for payment of Rs. 15,500/-, and also directed that the defendant shall pay mesne profits at the rate of Rs. 50 per day. It appears that when the execution proceedings started, the defendant woke up and moved application 4-C under Order 9 Rule 13 of C.P.C. along with the affidavit 5-C before the trial court, which was registered as Misc. Case No. 40 of 1992. After hearing the parties, the then Civil Judge (Senior Division), Almora, vide order dated 12.02.1996, rejected the application under Order 9 Rule 13 of C.P.C. along with the delay condonation application. Aggrieved by said order Nagar Palika, Almora (defendant) filed Misc. Civil Appeal No. 03 of 1996, before the District Judge, Almora. After hearing the parties, learned District Judge, Almora, vide its impugned order dated 3 04.07.1997, allowed the appeal and further allowed application under Order 9 Rule 13 of C.P.C., and set aside the ex-parte judgment and decree, passed against the defendant, on payment of Rs. 300/- towards costs in favour of the plaintiff. 4) Mr. K.C. Tiwari, learned counsel for the petitioner / plaintiff argued that the District Judge, Almora, has committed grave error of law in entertaining the Misc. civil appeal against the order dated 12.02.1996, passed by the trial court. In this connection, he drew attention of this Court to the order dated 12.08.1992, passed by Mr. S.K. Jain, District Judge, Almora, in Misc. Civil Case / Revision No. 28 of 1992, whereby the said court has dismissed the revision summarily holding the revision as devoid of merits. While dismissing the revision summarily, the revisional court (District Judge, Almora) observed that there was service of summons in the suit, on the defendants. Mr. K.C. Tiwari, learned counsel for the petitioner argued that once the revision stand dismissed, writ petition filed by Nagar Palika was also dismissed in limine, the appeal was not maintainable against the same order, and the finding of the revisional court bars entertaining of appeal on the ground of principle of resjudicata. 5) In my opinion, argument advanced on behalf of petitioner / plaintiff is misconceived. The order rejecting the application under Order 9 Rule 13 of 4 C.P.C. was an appealable order under Clause (d) of Rule 1 of Order 43 of C.P.C. That being so, no revision was maintainable under Section 115 of C.P.C. As such, any observation or finding given by the District Judge, Almora, in revision which was dismissed at the admission stage, is without authority of law. Apart from this, for application of principle of resjudicata, it is necessary that the adjudication of rights must have been done by a competent court. Since, the revision was not maintainable against the order of rejection of application under Order 9 Rule 13 of C.P.C., no observation made by the District Judge, Almora, in its order dated 12.08.1992, can operate as resjudicata. Assuming for a moment that the observation operates as resjudicata, even then in the present case, the impugned order passed by the District Judge, Almora, in Misc. Civil Appeal No. 03 of 1992, doesn’t require any interference, for the reason that as to the service of summon, the appellate court (District Judge, Almora) has also observed that there was sufficient service of summons on the defendant. 6) For the purposes of setting aside an ex-parte decree under Order 9 Rule 13 of C.P.C., either of the two grounds must be shown to the court – (1) that the defendant was not served with the summons; or (2) that he was prevented for sufficient reason from appearing in the court. It is not requirement of Rule 13 that both the conditions must be fulfilled. In either of the two 5 conditions, if the court is satisfied, decree passed ex-parte can be set aside. In the present case before this Court, after the trial court rejected the application under Order 9 Rule 13 of C.P.C., the appellate court rejected the first ground taken by the defendant that he was not properly served, as summons of the defendant Nagar Palika were received by its Clerk. But the Clerk who accepted the summons was not authorized to receive the summon and he did not bring it to the notice of the Chairman / Executive Officer of Nagar Palika, as such Nagar Palika got prevented for sufficient reason in putting up its appearance in the court. That being so, the appellate court (District Judge, Almora) vide order dated 04.07.1997, allowed the appeal, and it also allowed application moved under Order 9 Rule 13 of C.P.C., by the defendant for setting aside the ex-parte decree on payment of costs of Rs. 300/-. Therefore, the order suffers from no illegality. 7) For the reasons as discussed above, this Court does not find any error of law committed by the District Judge, Almora, in passing the order dated 04.07.1997, in Misc. Civil Appeal No. 03 of 1996. Accordingly, the writ petition is liable to be dismissed. The same is dismissed. However, no order as to costs. Interim order, if any, stands automatically vacated. (Prafulla C. Pant, J.) Dt. August 25, 2009. H. Negi