Uttarakhand High Court
Rajendra Kumar Goel vs Praveen Kumar And Others on 8 May, 2025
2025:UHC:3630
Reserved on: 08.04.2025
Delivered on: 08.05.2025
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. 1675 of 2015 (M/S)
Rajendra Kumar Goel ......Petitioner
Vs.
Praveen Kumar and others .....Respondents
Presence: Mr. Tapan Singh, learned counsel for the Petitioner.
Mr. Arvind Vashistha, learned Senior Counsel assisted Mr. Ashis
Sinha, learned counsel for respondent no.1.
Mr. G.D. Joshi, learned Counsel, for Respondent No. 3.
Mr. Pradeep Kumar Chauhan, learned Counsel for Respondent no. 4.
Hon'ble Ashish Naithani, J.
1. The petitioner has preferred the present writ petition under Article 226/227 of the Constitution of India, challenging the order dated 24.07.2013 passed by the learned Civil Judge (Junior Division), Haridwar in Original Suit No. 159 of 2009 (Praveen Kumar v. Rajendra Kumar Goel and others), whereby his application under Order IX Rule 7 read with Section 151 CPC was rejected. He further challenges the revisional judgment dated 20.05.2015 passed by the learned Second Additional District Judge, Haridwar in Civil Revision No. 88 of 2013 affirming the aforesaid rejection.
2. The controversy emanates from a registered sale deed dated 28.09.2006 executed by respondent no.5 (Prem Singh), the recorded tenure holder, in favour of the petitioner in respect of certain agricultural lands situated in Village Devpur Mustahkam, Pargana Jwalapur, District Haridwar, total area measuring 1.362 hectares. The sale deed was duly registered in the office of Sub-
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2025:UHC:3630 Registrar, Haridwar, and a non-encumbrance certificate was also procured prior to execution.
3. Following the execution of the sale deed, the petitioner's name was mutated in the revenue records, and he claims to have been in settled possession of the land.
4. Respondent no.1, who is the son of respondent no.5, instituted Original Suit No. 159 of 2009 before the learned Civil Judge (J.D.), Haridwar seeking cancellation of the aforesaid sale deed, alleging the land to be ancestral in nature. It is the petitioner's case that the plaintiff lacked any recorded title and had no locus to institute the suit without first seeking a declaration of rights.
5. In the said suit, it is alleged that the plaintiff deliberately furnished an incorrect address for the petitioner--showing it as Saharanpur instead of Jwalapur, Haridwar, as mentioned in the sale deed. As a result, summons were not served in the ordinary course. The trial court permitted substituted service by way of newspaper publication in "Dainik Hawk", which the petitioner contends is a paper not in circulation in his locality.
6. On the basis of deemed service through publication, the learned trial court passed an order dated 04.08.2011 to proceed ex parte against the petitioner. However, the suit was ultimately dismissed ex parte by judgment dated 24.09.2011.
7. Aggrieved by the dismissal, respondent no.1 preferred Civil Appeal No. 70 of 2011 before the District Judge, Haridwar, which was transferred to the court of the learned Additional District Judge, First Fast Track Court. The appeal was allowed on 16.07.2012 and the matter was remanded to the trial court for 2 Writ Petition No. 1675 of 2015 - Rajendra Ku. Goel Vs. Praveen Kumar and ors.
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2025:UHC:3630 fresh adjudication. It is contended that no notice of the appeal or remand order was ever served upon the petitioner.
8. According to the petitioner, he became aware of the pendency of the suit and the ex parte proceedings only on 06.03.2013 when he incidentally discovered the same while visiting the court complex in an unrelated matter. He promptly moved an application under Order IX Rule 7 read with Section 151 CPC seeking recall of the ex parte order dated 04.08.2011.
9. The learned trial court, after hearing both sides, dismissed the said application by order dated 24.07.2013, opining that due service had been effected. The revisional court upheld this view by judgment dated 20.05.2015.
10. The learned counsel for the petitioner submitted that the entire service in the suit was vitiated on account of deliberate misstatement of address in the plaint. It was contended that the petitioner was shown to be a resident of Saharanpur, whereas the correct address, as reflected in the sale deed and relief clause of the plaint itself, was at Jwalapur, District Haridwar. It was urged that the plaintiff obtained substituted service through publication in a newspaper which had no local circulation, thereby preventing the petitioner from participating in the proceedings. It was argued that the trial court ought to have insisted upon due service through ordinary mode before resorting to publication.
11. It was further argued that the petitioner had no knowledge of the proceedings, and upon learning of the same, he acted with promptitude by filing an application under Order IX Rule 7 CPC. The rejection of the said application, according to the petitioner, amounted to denial of the fundamental right of hearing. Learned counsel relied upon the decision of the Hon'ble 3 Writ Petition No. 1675 of 2015 - Rajendra Ku. Goel Vs. Praveen Kumar and ors.
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2025:UHC:3630 Supreme Court in Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, to argue that an application under Order IX Rule 7 CPC is maintainable so long as the final judgment has not been delivered.
12. Per contra, learned counsel for respondent no.1 opposed the writ petition contending that the petitioner was arrayed in the suit at the address mentioned in the impugned sale deed, and that due steps were taken for effecting service. It was submitted that only upon satisfaction regarding sufficient service, the trial court proceeded to hear the suit ex parte. It was further contended that the appellate court's remand order dated 16.07.2012, having not been challenged by the petitioner, had attained finality and the petitioner was estopped from assailing the earlier procedural orders.
13. Learned counsel for the respondents also submitted that after the remand, the stage of setting aside the ex parte order stood eclipsed, and that the petitioner's application under Order IX Rule 7 CPC was rendered infructuous. It was submitted that the recall application was misconceived and filed with an oblique motive to delay adjudication.
14. Heard learned counsel for the Parties and perused the records.
15. The essence of the petitioner's grievance lies in the rejection of his application under Order IX Rule 7 read with Section 151 CPC for recall of the ex parte order dated 04.08.2011. According to the petitioner, the suit summons were never served upon him at his correct address, and substituted service was wrongly resorted to through a newspaper ("Dainik Hawk") that allegedly lacked local circulation. He submits that 4 Writ Petition No. 1675 of 2015 - Rajendra Ku. Goel Vs. Praveen Kumar and ors.
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2025:UHC:3630 this deprived him of an opportunity to contest the suit on merits, and the ex parte order was thus liable to be recalled.
16. The sequence of events, however, reveals a significant development: the original suit was dismissed ex parte on 24.09.2011 and that dismissal was challenged in Civil Appeal No. 70 of 2011 by Respondent no. 1, which culminated in the appellate judgment dated 16.07.2012. The said judgment not only set aside the ex parte dismissal but also remanded the matter to the trial court for fresh adjudication. The appellate court recorded that, notices had been duly served and that the defendants had failed to appear. The petitioner, notably, did not challenge the remand order or raise any grievance as to its legality or the manner of service in appeal.
17. Furthermore, the petitioner's argument that he remained unaware of the proceedings until March 2013 does not inspire confidence. The remand order was passed on 16.07.2012. The application under Order 9 Rule 7 CPC was filed several months thereafter i.e, on 06.03.2013. There is no contemporaneous material--such as a postal address change request, proof of residence, or other official record--that would rebut the service presumed under substituted mode. Courts are not to be moved by vague assertions of ignorance without credible corroboration.
18. Additionally, it is well settled that once an appellate court sets aside a trial court's judgment and remands the matter for re- consideration, all prior proceedings--except those expressly preserved--stand subsumed in the remand. The procedural integrity of earlier interlocutory orders loses operative force unless challenged specifically.
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2025:UHC:3630
19. In Ram Naresh Prasad v. State of Jharkhand, (2009) 11 SCC 299, it was held that, 'Once the entire judgment is set aside and the matter is remanded, the whole case is open for reconsideration unless the remand order confines the scope by preserving certain findings.'
20. Similarly, in Satyadhyan Ghosal v. Deorajin Debi, AIR 1960 SC 941, the Supreme Court explained the doctrine of merger and observed: 'The effect of an appellate decree is to merge the lower court's decree into it, so the trial court's decree ceases to exist independently.'
21. In the present case, the order dated 04.08.2011, which permitted the suit to proceed ex parte, therefore merged in the remand judgment dated 16.07.2012. The petitioner's subsequent attempt to recall the earlier ex parte order through an application under Order IX Rule 7 CPC was rendered infructuous by virtue of this remand.
22. The principle of merger, though often applied to judgments and decrees, extends equally to orders that stand impliedly nullified or rendered redundant by superior judicial pronouncement. Once the appellate court directed a fresh decision on merits, the trial court was required to proceed accordingly and the petitioner was free to participate in the proceedings. Rather than availing of this opportunity, the petitioner engaged in collateral litigation to revive a procedural grievance that no longer had legal significance.
23. The submission that the appellate order ought not to bar the petitioner from seeking recall under Order IX Rule 7 CPC overlooks the jurisdictional character of a remand. The appellate order, having attained finality, became binding on the parties. If 6 Writ Petition No. 1675 of 2015 - Rajendra Ku. Goel Vs. Praveen Kumar and ors.
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2025:UHC:3630 the petitioner believed the service in the appellate proceedings was defective, it was incumbent upon him to challenge the appellate judgment. He chose not to do so.
24. The reliance placed on Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, is misconstrued. In that case, the Supreme Court clarified that an application under Order IX Rule 7 CPC lies before final judgment is delivered and during the pendency of proceedings. However, in the present case, the original proceedings were already disposed of and a fresh round had begun post-remand. The ratio of Arjun Singh cannot be invoked to invalidate orders rendered redundant by operation of appellate jurisdiction.
25. The trial court, in dismissing the recall application, noted that the petitioner was served at the address mentioned in the sale deed itself, and that the substituted service was not shown to be fraudulent. The revisional court endorsed this view. Both courts below have concurrently found no procedural irregularity sufficient to set aside the ex parte order in retrospect-- particularly in light of the subsequent remand.
26. This Court is further mindful that writ jurisdiction under Article 226/227 is not meant to serve as a second appeal. Interference is warranted only where there is a manifest illegality, perversity, or miscarriage of justice. A procedural order rendered irrelevant by a remand, which has attained finality, cannot furnish such ground.
27. The petitioner's insistence on recalling the order dated 04.08.2011, despite the suit itself having been revived for fresh adjudication, reflects a misplaced legal strategy. The relief, even 7 Writ Petition No. 1675 of 2015 - Rajendra Ku. Goel Vs. Praveen Kumar and ors.
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2025:UHC:3630 if granted, would not advance the cause of the petitioner, as the proceeding already stood re-opened by the appellate court.
28. This Court also finds no procedural impropriety or jurisdictional error in the impugned orders. The petitioner has failed to establish that the findings of the courts below suffer from any perversity, non-application of mind, or violation of fundamental legal principles warranting interference under Article 226/227 of the Constitution of India.
29. Accordingly, this Court is not inclined to exercise its writ jurisdiction in the matter. The petition lacks merit and is liable to be dismissed.
30. The writ petition stands dismissed. No order as to costs.
(Ashish Naithani J.)
Arti 08.05.2025
ARTI SINGH Digitally signed by ARTI SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=487ed955e722ba65aab55409e686c12fb83a19325e8b66890fbee418e7b69c0d, postalCode=263001, st=UTTARAKHAND, serialNumber=26DC90E00D839E3E8714131F235087D2D87E133C57E7F4A7B2E734BE2521F982, cn=ARTI SINGH Date: 2025.05.09 10:24:21 +05'30' 8 Writ Petition No. 1675 of 2015 - Rajendra Ku. Goel Vs. Praveen Kumar and ors.
Ashish Naithani J.