Uttarakhand High Court
Unknown vs Shri Chajju Singh Tomar Alias Chandra … on 19 February, 2026
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 493 of 2019
Smt. Savitri Rahi
........Appellant
Versus
Shri Chajju Singh Tomar alias Chandra Singh Tomar
......Respondent
Present:-
Mr. Piyush Garg, Advocate for the appellant.
Mr. Neeraj Garg, Advocate for the respondent.
Hon'ble Ravindra Maithani, J. (Oral)
Instant appeal is preferred against the order dated
29.08.2019 passed in Misc. Case No. 482 of 2017, Smt. Savitri Rahi v.
Chajju Singh Tomar alias Chandra Singh Tomar, by the court of Vth
Additional District Judge, Dehradun (“the Misc. Case”), whereby the
application filed by the appellant under Order 41 Rule 21 of the Code
of Civil Procedure, 1908 (“CPC“) seeking recall of the ex parte order
dated 29.11.2016 has been rejected.
2. Heard learned counsel for the parties and perused the
record.
3. The respondent filed the Original Suit No. 122 of 2013,
Sri Chajju Singh Tomar alias Smt. Savitri Rahi, in the court of Civil
Judge (Senior Division), Dehradun for cancellation of sale deed dated
06.01.2002 (“the suit”). The suit proceeded ex parte, but dismissed on
08.05.2014. Against it, the respondent preferred Civil Appeal No. 104
of 2014, Sri Chajju Singh Tomar alias Smt. Savitri Rahi, in the court of
Additional District Judge, 7th, Dehradun (“the appeal”).
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4. In the appeal, on 02.02.2015, the court noted that the
appellant was not residing at the address given in the appeal and had
shifted at some other place. Therefore, the court ordered for
publication of the notice and thereafter the appeal was allowed ex
parte on 29.11.2016. The appellant thereafter filed an application for
restoration of the appeal under Order 41 Rule 21 of the Code, which
has been dismissed by the impugned order.
5. Learned counsel for the appellant submits that the
appellant was not residing at the address as was given in the plaint of
the suit; she had already shifted from there; in the appeal, though on
02.02.2015, the court had ordered for publication of the notice, but in
the appeal, the court never recorded a finding that the service was
sufficient on the appellant herein, and decided the appeal ex parte. It
is argued that, in fact, the appellant had shifted from the given
address; she had filed electricity bills, etc. also along with the
restoration application, but it was wrongly not considered while
passing the impugned order.
6. Learned counsel for the respondent submits that the
appellant was very much residing at the given address; parties were
litigating in the revision no. 109 of 2011-12 in the court of Additional
Chief Revenue Commissioner, Uttarakhand (“the revision”), wherein
the address of the appellant was the same as given in the suit and the
revision was decided on 11.04.2017; till then, the address of the
appellant was the same. It is argued that had the appellant been
shifted from the address, she would have informed it in the revenue
court, but she did not do so. In addition to it, learned counsel submits
that in the restoration application, the appellant had given reasons
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that she came to know about the judgment and order passed in the
appeal in the last week of April, 2017, during the revenue proceedings,
whereas the revision had already been decided by the revenue court on
11.04.2017. It is also argued that in the electoral roll of the children of
the appellant, the address is the same, which is recorded in the plaint
of the suit.
7. Rebutting the arguments of the learned counsel for the
respondent, learned counsel for the appellant submits that if the
appeal was pending when the revision was also pending and the
appellant was not appearing in the appeal, the respondent could have
brought this fact to the notice of the appellant in the revenue
proceedings, but he did not do so. Although, at it, on behalf of the
respondent, it is argued that if the appellant had changed the address,
she could have corrected the address in the revenue proceedings also.
8. Facts remains that the suit was dismissed ex parte and
in the appeal also the appellant did not appear and it was decided ex
parte against her. In the appeal, the service was effected by publication
of the notice, as stated by the learned counsel for the appellant. It has
not been disputed.
9. Admittedly, in the appeal, on 02.02.2015 categorically
the court had recorded that as per the report of the process server, the
appellant was not residing at the given address as given in the plaint
of the suit and she had shifted from there. It is thereafter, the court
ordered for publication of the notice. The fact remains that thereafter
the court in appeal never recorded a finding that the service is
sufficient upon the appellant and the appeal has been decided.
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10. With regard to the knowledge of the order passed in the
appeal, learned counsel for the appellant further argued that though
the revision was decided on 11.04.2017, but she received the copy of
the order in the last week of April, 2017 and it is only then she came
to know about the order passed in the appeal.
11. It is rebutted by the learned counsel for the respondent
on the ground that what is pleaded by the appellant is that she came
to know about the judgment passed in the appeal, in the revisional
court in the last week of April, 2017.
12. Be that as it may, the fact remains that
summons/notices were never served personally on the appellant. It
was by way of publication in the appeal and when publication order
was made on 02.02.2015, the court recorded a finding that as per
process server’s report, the appellant was not residing at the address
given in the plaint. This finding was recorded in the presence of the
respondent. If the appellant was residing at the same address, perhaps
the respondent had an opportunity to inform the court at that stage
only. Fact also remains that the revenue proceedings were pending
between the parties at the relevant point of time. If the appellant was
not appearing in the appeal, this fact definitely could have been
brought to the notice of the appellant in the revenue court by way of
filing an application or otherwise. But, it has also not been done.
13. Having considered, this Court is of the view that the
appellant had shown sufficient cause for her non-appearance in the
appeal. Therefore, the application under Order 41 Rule 21 of the Code
ought to have been allowed by the court. Accordingly, while setting
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aside the order dated 29.08.2019 passed in the Misc. Case, the matter
needs to be remitted back to the appellate court to decide the appeal
afresh.
14. The appeal is allowed.
15. The order dated 29.08.2019 passed in Misc. Case No.
482 of 2017, Smt. Savitri Rahi v. Chajju Singh Tomar alias Chandra
Singh Tomar is set aside.
16. The appellate court is requested to hear and decide the
Civil Appeal No. 104 of 2014, Sri Chajju Singh Tomar alias Smt.
Savitri Rahi, after affording an opportunity of hearing to both the
parties.
17. Let both the parties appear before the appellate court on
17.03.2026. It is quite an old appeal. Learned appellate court is
requested to decide the appeal as expeditiously as possible, preferably
within a period of three months from the date of receipt of copy of this
judgment, without giving any undue adjournment to either of the
parties. Learned counsel for both the parties have given an
undertaking that they shall not take any adjournment.
18. Let a copy of this judgment along with the lower court
record be forwarded to the court concerned.
(Ravindra Maithani, J.)
19.02.2026
Avneet/
