Allahabad High Court
Shamit Khemka vs Synapse Communication Private Limited on 13 November, 2024
Author: Rohit Ranjan Agarwal
Bench: Rohit Ranjan Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:177843 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 10861 of 2024 Petitioner :- Shamit Khemka Respondent :- Synapse Communication Private Limited Counsel for Petitioner :- Aushim Luthra,Gaurav Tripathi,Pranav Tiwary Counsel for Respondent :- Tarun Agrawal Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Gaurav Tripathi, learned counsel for the plaintiff-petitioner and Sri Shashi Nandan, learned Senior Counsel assisted by Sri Prashant Mishra, learned counsel appearing on behalf of defendant-respondent.
2. It is contended by learned counsel for the petitioner that the petitioner is aggrieved by the order passed in proceedings under Order XXXVII Rule 4 read with Order IX Rule 13 CPC. According to him, the summary suit filed under Order XXXVII was decreed ex-parte as the services of summons were effected upon the defendant and the Court below on 28.07.2016 had recorded the said facts in the order-sheet. According to learned counsel, the application which was allowed by Court below is in teeth of the provisions of Order XXXVII Rule 4 read with Order IX Rule 13 CPC. He then contended that the Court below has not recorded any finding and has recalled the ex-parte decree, and has restored the application to its original number.
3. Sri Shashi Nandan, learned Senior Counsel appearing for the defendant-respondent has vehemently opposed the writ petition and submitted that the application submitted under Order XXXVII Rule 4 read with Order XI Rule 13 CPC is maintainable and the service of the summons was not effected upon the defendant as the Court below has rightly recalled the order.
4. I have heard respective counsel for the parties and perused the material on record.
5. From perusal of the record, it transpires that on 28.07.2016 the Court below had recorded findings and as per the tracking report, service of the summons was made upon the defendants and as the acknowledgement was not received back after service, the Court deemed the services to be sufficient and proceeded to decide the matter ex-parte.
6. Moreover, the provisions of Order XXXVII Rule 4 CPC mandate that in special cases in which ex-parte decree could be recalled by the Court concerned as it is a provision for summary disposal of the suit and the suit filed by the plaintiff was under Order XXXVII, the Court below should have recorded the reasons before allowing the application for setting aside the ex-parte decree.
7. In view of the said facts, judgment and order dated 19.07.2024, passed by Civil Judge (Senior Division), Gautam Budh Nagar in Misc. Case No.404 of 2023, is hereby set aside and the matter is remanded back to the Court concerned to decide it afresh in regard to ex-parte decree within a period of three months from the date of production of certified copy of this order after hearing both the parties strictly in accordance with law considering the documents on record.
8. Writ petition stands partly allowed.
Order Date :- 13.11.2024 SK Goswami