IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 6.2.2008 S.B. CIVIL REVISION PETITION NO.36/2008 Satyapal Singh Vs. Vijay Singh & Anr. HON'BLE MR. JUSTICE DALIP SINGH Shri J.P. Goyal, for the appellant. Heard learned counsel for the petitioner. This revision petition has been filed by the defendant against the order dated 13.11.2007 by which the plaintiff's application under order 9 rule 9 read with Section 151 C.P.C. has been allowed and the order dated 23.1.2001 passed upon the application under order 9 rule 13 CPC filed by the defendant was set aside. The suit was filed by the plaintiff respondent for declaration that the adoption of the defendant be declared null and void. The said suit No.463/1996 came to be decreed by the learned trial court and an ex parte decree came to be passed on 29.7.1997 in favour of the plaintiff respondent declaring the adoption dated 4.12.1995 as void and in effective. The defendant petitioner filed an application No.192/2000 Satyapal Singh Vs. Vijay Singh under order 9 rule 13 C.P.C. for getting the exparte decree dated 29.7.1997 was set aside. The said application came to be allowed by the learned trial court vide order dated 24.7.2000. After the aforesaid suit was restored the plaintiff respondent did not appear and consequently the suit was dismissed on 23.1.2001. The plaintiff respondent submitted an application under order 9 rule 9 read with Section 151 C.P.C. stating therein that the plaintiff respondent was never served with the notices of the application under order 9 rule 13 CPC filed by the defendant and he did not know about the passing of the order dated 24.7.2000 and had never appointed Shri Ramesh Bansal as his counsel or authorized him to appear on his behalf in the proceedings in the application under order 9 rule 13 CPC. The plaintiff also submitted that he came to know about setting aside of the exparte decree in his favour on 9.4.2006 on inspection the revenue record and thereafter he inspected the file and civil suit came to know about the passing of the order allowing the application under order 9 rule 13 CPC and subsequent dismissal of the suit on 23.1.2001. Inter-alia it was submitted that there was sufficient cause for not having filed the application in absence of the knowledge about the passing of the aforesaid order dated 23.1.2001. The learned trial court heard the application filed by the plaintiff under order 9 rule 9 after inspecting the record and came to the conclusion that the summons which were sent on the application under order 9 rule 13 CPC filed by the defendant petitioner in Misc. Case No.192/2000 were never served in person upon the plaintiff respondent herein. On the contrary the Process Server affected the service by 'Chaspa' i.e. By affixation. In view of the above, the learned trial court came to be conclusion after going through the contents of the said notice that the said notice was served by affixation as the plaintiff respondent was not present when the Process Server came to his residence. It has also been taken note by the learned trial court that the said summons did not bear the signatures of any witnesses and therefore the service was held to be insufficient by the learned trial court. The learned trial court has mentioned in the impugned order that it is also found from the record that there was no Vakalatnama of the plaintiff authorising Shri Ramesh Chandra Bansal who allegedly appeared on his behalf during the hearing of the application under order 9 rule 13 filed by the defendant petitioner which was registered as misc. case No.192/2000. In view of the above, the learned trial court arrived at the finding that neither service was affected nor there was any authorization in favour of learned counsel to appear on behalf of the plaintiff respondent. Consequently, the learned trial court accepted the application filed under order 9 rule 9 CPC by the plaintiff respondent and set aside the order dated 23.1.2001 by which the suit had been dismissed for non prosecution. The submission of the learned counsel for the defendant petitioner in the revision petition is that the application could not have been allowed in the absence of any application under Section 5 of the Limitation Act having been filed by the plaintiff respondent. So far as the above objection is concerned from the impugned order it does not appear any such objection was raised by the plaintiff before the learned trial court at the time of the hearing of the application under order 9 rule 9 CPC filed by the plaintiff respondent was heard. In view of the above, the defendant petitioner cannot be permitted to raise the aforesaid objection for the first time in the revision petition. Having held so however, from the perusal of the impugned order dated 13.11.2007 itself it is revealed that the plaintiff in the application under order 9 rule 9 CPC on which the order dated 13.11.2007 came to be passed has clearly stated that he had no prior or any knowledge about the passing of the order dated 23.1.2001 dismissing the suit till such time as he looked into revenue record and thereafter inspected the file of the suit and then immediately thereafter the filed the present application under order 9 rule 9 CPC without delay. Thus the averments made in the application which has been narrated in the impugned order dated 13.11.2007 are that the plaintiff, in the application itself, had made out a case for condonation of delay and the learned trial court has given a finding that the plaintiff was neither served with the summons nor authorized the counsel to appear on his behalf in absence of any knowledge about the proceedings of the application under order 9 rule 13 CPC which were commenced on the application filed by the defendant petitioner. This was a serious matter and once brought to the notice of the court it was the duty of the court to look into the same even suo moto. Such an application could not be shown out on the technical ground of limitation. In view of the above, findings the learned trial court held that there was sufficient cause for the plaintiff not having filed any application within prescribed period of limitation and hence condonation of delay could have been allowed. In the facts and circumstances and the findings which have been arrived at by the learned trial court I am not inclined to interfere in the revisional jurisdiction under Section 115 CPC. Suffice it to say that an opportunity must given to the parties to contest the matter on merits rather than dismissing the suit at the threshold on such technical grounds. This revision petition as well as the stay application are accordingly dismissed summarily. (DALIP SINGH),J. Ramchandrkhatri,PS