The main legal point established in the judgment is the importance of effective service of notice and the liberal construction of 'sufficient cause' for condoning delay in the interest of advancing substantial justice.

JUDGMENT :

1. Heard Sri Rahul Sripat, learned Senior Advocate assisted by Sri Ishir Sripat, learned counsel for the appellant and Sri Virendra Singh, Ms. Neha Khan and Sri Jitendra Shanker Pandey, learned counsel for the sole respondent and perused the record.

2. The appellant has preferred instant First Appeal From Order assailing the order dated 10.12.2021 passed by Additional District and Sessions Judge, Court No. 3, Muzaffar Nagar rejecting the restoration application moved by him under Order 9 Rule 13 read with 151 C.P.C., registered as Misc. Case No.17 of 2011, against the ex-parte judgment and decree dated 13.11.2009 passed by Additional District Judge, Court No. 5, Muzaffar Nagar in Original Suit No. 684 of 2008 (Zulfkar Ali Vs. Rakesh Kumar Jain).

3. Facts culled out from the record are that Zulfkar Ali (plaintiff-respondent) has filed suit dated 14.7.2008 for permanent prohibitory injunction against the defendant-appellant to restrain him not to interfere in the peaceful possession of the plaintiff over the property in question shown by letters ABC at the foot of the plaint and also not to dismantle the construction exists over there. The plaintiff came with the case that to secure the money borrowed from the defendant-appellant, document of understanding has been executed on 17.1.1994. At later stage, the plaintiff returned all the money as borrowed from the defendant-appellant, however, now the defendant is trying to dispossess the plaintiff from the property in question. During pendency of the suit, the plaintiff has moved an amendment application dated 23.3.2009 seeking additional relief of cancellation of the registered sale deed dated 2.2.1994 and to declare it as null and void. Aforesaid amendment application was allowed on 8.4.2009. Suit was proceeded ex-parte, vide order dated 11.12.2008, against the defendant-appellant. In the meantime, case was transferred to the Court of Additional District Judge, Court No. 5 on 28.1.2009 and the record was received in the transferee court on 30.1.2009. In absence of the defendant-appellant, suit was ex-parte decreed by judgment and decree dated 13.11.2009. When the defendant/appellant came to know this fact, he moved a restoration application dated 12.09.2011, being Misc. Case No.17 of 2011, under Order IX Rule 13 read with Section 151 C.P.C. Having considered the full knowledge of pendency of suit to the defendant-appellant through his wife, learned trial court, vide order under challenge dated 10.12.2021, has dismissed the restoration application.

4. Learned counsel for the defendant-appellant submits that initially delay was condoned vide order dated 12.09.2011, however, observation with regard to delay condonation was quashed by order dated 08.12.2011 passed by this Court and parties were relegated before the trial court to decide the delay condonation matter afresh. Learned trial court has illegally declined to condone the delay for want of separate formal application for the condonation of delay under Section 5 of the Limitation Act and knowledge of pendency of suit to the defendant-appellant through his wife Shobha Jain, which has been tried to be established illegally based on report of Court Amin dated 22.07.2008. It is further submitted that Court Amin has simply completed the table work. Even otherwise, the provisions as enunciated under Order V Rule 17 C.P.C. has not been complied with in its letter and spirit. Property in question, which is a subject matter of sale deed dated 02.02.1994, has illegally been usurped by the plaintiff-respondent by getting ex-parte decree passed in his favour, that too, by way of amendment of pleading at a very belated stage for cancellation of sale deed dated 02.02.1994 which, in fact, was not maintainable and to that extent relief for cancellation of sale deed was barred by time. It is further submitted that even at later stage, when the case was transferred from regular court, vide order dated 28.01.2009, and received in the tran