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Judgment
B.S. Verma, J.—Heard learned Counsel for the Petitioner.
By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari quashing the order dated 21-04-2011 (Annexure No. 1 to the writ petition) and the order dated 10-8-2010 (Annexure No. 2) passed by Additional District Judge Rishikesh in Misc. Case No. 45 of 2000, M/s Indian Insulator (Delhi) Pvt. Ltd. v. M/s Indian Drugs and Pharmaceuticals Ltd. And to restore the order dated 2-9-1999 passed in F.A.F.O. No. 860 of 1987.
The Petitioner is aggrieved by the order dated 21-4-2011, the application under Order 9, Rule 13 CPC read with Section 151 of the CPC moved by the Respondent has been allowed and the ex parte order dated 2-9-1999 was set aside and F.A.F.O. No. 860 of 1987, I.D.P.L. v. M/s Indian Insulators was restored to its original number. The Petitioner has also challenged the order dated 10-8-2010, whereby the court below had condoned the delay in filing the application under Order 9, Rule 13 of the Code of Civil Procedure
It appears that an arbitral proceedings had started in respect of some dispute which had arisen out of a contract entered into between the parties and the matter was referred to the Umpire, despite protest by the Petitioner. It also appears that ultimately an award was made by the Umpire on 19-6-1985 in favour of the Respondent.
Thereafter Original Suit No. 373 of 1985 was registered for making the award the Rule of the Court. It appears that the Petitioner filed its objections under Sections 30/33 of the Arbitration Act, 1940 and a Misc. Case No. 125 of 1985 was registered before the court of II Additioonal Civil Judge, Dehradun, who in turn rejected the objections of the Petitioner and by his order dated 31-8-1987 made the award the Rule of the Court.
Aggrieved by the said judgment and decree, the Petitioner preferred an appeal before the High Court of Judicature at Allahabad, which was registered as F.A.F.O. No. 860 of 1987. Subsequently, the said appeal was transferred from the Allahabad High Court to the District Judge concerned for hearing. Later on, the appeal was transferred to the court of Additional District Judge, Dehradun for disposal.
According to the Petitioner, the Respondent was served in appeal at its given address. The learned Additional District Judge has observed in his order dated 18-6-1998 that steps had been taken and notice be issued to the opposite party for the date fixed.
By a perusal of the order sheet dated 27-7-1998 (Annexure No. 12 to the petition), it reveals that the learned appellate court passed an order that none present for the Respondent despite the notice sent by registered on the correct address and fixed 31-8-1998 since the lower court record was not received. On 31-8-1998, the learned appellate court observed that notice was not received back and held the service upon the Respondent sufficient. Thereafter dates were fixed in the appeal and again on 15-3-1999, the learned appellate court ordered to serve the Respondent again and directed the Appellant to take steps within seven days.
On 30-7-1999, the appellate court has observed in its order that one is present on behalf of the Respondent in spite of the fact that intimation through registered post was sent by the Court at his last given address.
From a perusal of the entire order-sheet filed by the Petitioner itself, it appears that after 30-4-1999, the learned appellate court has not passed any order holding that the service upon the Respondent to be sufficient or any order recording its satisfaction as to the service of notice upon the Respondent. It also appears that after hearing the Appellant, the appeal was allowed ex parte by order dated 2-9-1999.
From a perusal of the record, it reveals that on 24-8-2000, the Respondent moved an application under Order 9, Rule 13 Code of Civil Procedure, which was registered as Misc. Case No. 45 of 2000 for setting aside the ex parte judgment and decree dated 2-9-1999 on the ground that in the Allahabad High Court Shri K.N. Tripathi, Senior Advocate, was the counsel for the Respondent and no intimation was given to the Respondent regarding transfer of the appeal; that the Respondent had left his earlier address R-84 Ramesh Park, Lakshmi Nagar, Delhi, therefore, service could not be effected upon the Respondent; that the address of the attorney holder of the Respondent was on the record of appeal but no notice was served upon the attorney holder. In the impugned order dated 21-4-2011. the learned appellate court has observed that no notice was sent to the Respondent at his another address of attorney holder Mr. K.P. Garg 17-H Jangpura New Delhi. No notice was served upon the attorney holder.
I have perused the entire order-sheet (Annexure 12 to the petition). By a perusal of the order-sheet dated 30-7-1999, it is evident that the learned appellate court has not at all recorded the satisfaction of the court that the service upon the Respondent is deemed sufficient.
By the impugned order dated 21-4-2011, the learned appellate court after thrashing the matter has found that service had not been effected either upon the Respondent-applicant and that no notice was sent to the attorney holder of the applicant-Respondent at his given address of Jangpura New Delhi. Consequently by order impugned, the application under Order 9, Rule 13 CPC moved by the Respondent was allowed and the ex parte order dated 2-9-1999 was set aside.
In view of the discussion above, I am of the considered view that the Respondent had no knowledge of the date fixed for hearing before the learned appellate court after transfer of the appeal from the Allahabad High Court. It is also evident that the learned Additional District Judge, while allowing the appeal by order dated 2-9-1999 has not at all recorded satisfaction of the Court that the service upon the Respondent is deemed sufficient. In this view of the matter, the learned appellate court has rightly allowed the application under Order 9, Rule 13 CPC moved by the Respondent and set aside the ex parte order dated 2-9-1999. Moreover, if the appeal is decided on merits after hearing both the parties, no prejudice would be caused to the Petitioner-Appellant. I find no reason to interfere with the impugned orders. The writ petition being devoid of merit is liable to be dismissed outright at the threshold.
The writ petition is dismissed summarily. However, since the appeal is very old, the learned appellate court is directed to hear the appeal (F.A.F.O. No. 860 of 1987) expeditiously as far as possible and decide the same on merits after hearing both the parties. All pending applications stand disposed of.