2025:HHC:27597 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CR No. 72 of 2020 Decided on : 14.08.2025 Anil Kumar. …Petitioner Versus Vijay Kumar and another. …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes For the petitioner : Mr. Karan Singh Kanwar, Advocate. For the respondents : Mr. Ganesh Barowalia, Advocate, for respondent No.1. Mr. Munish Kumar Garg, Advocate (through V.C.), with Mr. Sushant Vir Singh Thakur, Advocate, for respondent No.2. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioner has assailed order dated 17.10.2020, passed by learned Senior Civil Judge, Nahan, District Sirmaur, H.P, in CMA No. 387/6 of 2019 and CMA No. 268/6 of 2020, in terms whereof, application filed by respondent No.1 herein, under Order IX, Rule 7 of the Code of Civil Procedure Code along-with application under filed Section 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:27597 5 of the Limitation Act, were allowed. 2. Brief facts necessary for the adjudication of this petition are that the petitioner has instituted a Civil Suit against the respondents herein and in the said proceedings, respondent No.1, was proceeded against ex-parte on 11.04.2016. For the recall of this order, an application was filed under Order IX, Rule 7 of the Code of Civil Procedure along- with an application under Section 5 of the Limitation Act, for condonation of delay. These applications were filed in the month of May, 2019. In terms of the impugned order, these applications stands allowed and feeling aggrieved, the petitioner has filed this petition. 3. Learned counsel for the petitioner argued that the impugned order is per se perverse, as the learned Court below erred in not appreciating that the averments made in the applications, seeking condonation of delay in filing the application as well as seeking recall of the order in terms where of, said respondent was proceeded against ex parte, were not substantiated by any cogent evidence on record. He referred to the applications filed and submitted that the averments made 3 2025:HHC:27597 therein were vague and no material was appended either with the applications or was otherwise produced by the respondent to substantiate the contentions raised therein. He referred to the summon issued to the rspondent in the suit, which is appended as Annexure P-7 and submitted that said summon was duly served upon the said respondent/defendant No.2, as his signatures are there on the summon and the Process Server on oath reported the service of the summon on the said defendant. He further referred to the statement of the Process Server Ramesh Kumar, who deposed in the course of the adjudication of the said applications as RW-1 and submitted that whereas said witness served the summon upon Shri Vijay Kumar, his cross-examination demonstrates that the veracity of his testimony could not be impeached. He further referred to the cross-examination of the said respondent itself and submitted that incidentally in his cross-examination, he not only denied his signatures on the summons, but he also denied his signatures on the application that was filed by him under Order IX, Rule 7 of the Code of Civil Procedure. He submitted that these extremely important aspects of the matter have not been 4 2025:HHC:27597 dealt with by the learned Trial Court in a proper manner and, therefore, the impugned order per se is bad and perverse and not sustainable in the eyes of law. 4. On the other hand, learned counsel appearing for respondent No.1 submitted that as there was no proper service of the said respondent, as is also evident from the averments made in the application filed under Order IX, Rule 7 of the Code of Civil Procedure and Section 5 of the Limitation Act, there is no perversity in the order in terms whereof, these applications were allowed. He submitted that the averments made in the application are self speaking as to why said respondent could not appear before the learned Trial Court and in terms of the order, learned Trial Court, after appreciating the contentions of the respondent in correct perspective, allowed the application. He further submitted that as far as the issue of said respondent having denied his signatures on the application filed by him under Order IX, Rule 7 of the Code of Civil Procedure is concerned, it may be a typographical error, in terms of the recording of his statement. 5. Learned counsel for respondent No.2 submitted that 5 2025:HHC:27597 as far as the cross-examination of respondent No.1 is concerned, same is a matter of record, but otherwise there is no perversity in the order. 6. I have heard learned counsel for the parties and have also carefully gone through the impugned order as well as other documents on record. 7. It is not in dispute that the contesting respondent, who has been impleaded as defendant No.2 in the Civil Suit, was proceeded against ex-parte on 11.04.2016. The reason why he was proceeded against ex-parte obviously was that in terms of the summons Annexure P-7 and report appended thereto of the Process Server, said defendant did not appear despite service. In this backdrop, when one peruses the applications that were filed by said respondent under Section 5 of the Limitation Act and order IX, Rule 7 of the Code of Civil Procedure, perusal thereof demonstrates that it was averred therein that the applicant was an aged person, who was not physically fit. He had suffered a paralytic attack in the year 2011 and had lost control over half of his body. It was further averred in the application that he was residing at Ludhiana along-with 6 2025:HHC:27597 his family and plaintiff No.2, who was mentally retarded. In terms of the averments made in the application, plaintiff No.2 was residing with the applicant since the year 2013 and was being looked after by the family of the applicant. It was also mentioned in the application that in the year 2016, his son had suffered a head injury and on account thereof he remained hospitalized and bedridden for a long time and on account of all these factors neither the applicant nor his family could visit Nahan in the year 2016 and no notice of the Suit was ever served upon him. In terms of the application, the alleged service of the notice upon the applicant was manipulation on the part of plaintiff No.1. It was further mentioned in the application that in the last week of April, 2019, his wife and daughter visited Nahan and there they came to know about the Suit filed by the plaintiff. Thereafter, they approached their counsel and obtained copies of the plaint and documents and discovered that a Suit stood filed against them by the plaintiff on the basis of forged and fabricated documents. 8. As per the applicant, in the backdrop of the said facts, as the non-appearance of the applicant before the Court 7 2025:HHC:27597 was for the reason that was not having any knowledge of the proceedings, the order in terms whereof, he was proceeded against ex-parte, was liable to be recalled. 9. Now incidentally, what was mentioned in the application was not substantiated by an iota of evidence on record. No document was appended with the application to prove and demonstrate any of the facts that were narrated in the application to substantiate them. The applicant denied service of notice upon him and obviously in the course of his cross-examination, he denied his signatures upon Annexure P- 7. However, during his cross-examination, he not only denied his signatures on the summons (Annexure P-7), but also denied his signatures on the application that was filed under Order IX, Rule 7 of the Code of Civil Procedure. 10. This Court is of the considered view that once the applicant denied his signatures on the application that was filed on his behalf under Order IX, Rule 7 of the Code of Civil Procedure, obviously, by no stretch of imagination said application still could be construed to have been filed on behalf of the said applicant. Once there was no application filed on 8 2025:HHC:27597 behalf of the applicant under Order IX, Rule 7 of the Code of Civil Procedure, obviously, there could not have been any adjudication either on the said application or on the application filed under Section 5 of the Limitation Act. This extremely important aspect of the matter has been completely ignored by the learned Trial Court while passing the impugned order. 11. Learned Court has erred in not appreciating that on account of the denial of his signatures on the application filed under Order IX, Rule 7 of the Code of Civil Procedure by the applicant, there was no occasion for the Court to have either entertained the application or adjudicate it. The contention of the learned counsel for the respondent that there was a typographical mistake in the recording of statement of the said witness cannot be accepted because his statement is there on record since 16.12.2019 and if indeed there was a mistake, that is to say a typographical mistake, then nothing prevented the said applicant from moving an appropriate application before the learned Trial Court for correction thereof. 12. Under the provisions of Section 115 of the Code of Civil Procedure, the High Court has the power to interfere with 9 2025:HHC:27597 an order passed by the learned Court below, if the learned Court passes an order by exercising jurisdiction not vested in it or passes an order by not exercising the jurisdiction vested in it or passes an order by exercising jurisdiction vested in it with material irregularity. In the present case, the jurisdiction vested in the Court has been exercised with material irregularity and illegality. In the absence of a proper application under Order IX, Rule 7 of the Code of Civil Procedure being before the Court, there was no occasion for the learned Trial Court to have had entertained the same and decide the same on merit. Learned Trial Court also erred in not appreciating that otherwise also there was no occasion for the Court to disbelieve the service of summon on the said party, more so, when the party (defendant No.2) failed to substantiate the contents of the application by placing on record any cogent evidence. 13. Therefore, as the impugned order per se is not sustainable in the eyes of law, the same i.e. order dated 17.10.2020, passed by learned Senior Civil Judge, Nahan, District Sirmaur, H.P, in CMA No. 387/6 of 2019 and CMA No. 268/6 of 2020, is quashed and set-aside. The petition is 10 2025:HHC:27597 allowed. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 14, 2025 (Shivank Thakur)