The court upheld the validity of notice served through publication and emphasized the need to deter frivolous litigation by imposing exemplary costs.

C A V Order

1. This petition has been filed by the Defendant No.1- Smt. Sobhna Chourasiya seeking recall of the judgment and decree dated 17.03.2021 passed by this Court in First Appeal No.3/2011 and, praying for re-hearing of the same. Parties shall be referred hereinafter as per their descriptions before the trial Court.

2. Learned counsel appearing for the Applicant/Defendant No.1, submits that the notice of the said appeal, i.e. First Appeal No.3/2011, was never served upon her, as she was residing at Noida and her address is shown as the resident of Bhopal. It is contended further that without following the procedure prescribed under Order 5 Rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’), an application moved by the plaintiff/Non-Applicant No.1-Munnalal Agrawal seeking service of notice upon her through paper publication, namely, “Times of India”, was allowed and the said matter was heard and the impugned judgment and decree was delivered in her absence. Further contention of the Applicant is that, in the meantime, she was shifted to Pune, where she received a letter/notice dated 11.01.2025 (Annexure A-3) from the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav, whereby, she was informed regarding delivery of the said impugned judgment and decree dated 17.03.2021 and then only, she came to know about the entire proceedings. It is the further contention of the counsel appearing for the Applicant/Defendant No.1 that non-representation on her part was occurred, because of non-service of notice of the said appeal (First Appeal No. 3/2011), therefore, the impugned judgment and decree passed in the said appeal be recalled. In support, reliance has been placed upon the decisions rendered by Hon’ble the Supreme Court in the matter of Yallawwa (Smt) Vs. Shantavva (Smt), reported in (1997) 11 SCC 159 and Neerja Realtors Private Limited Vs. Janglu (Dead) Through Legal Representative, (2018) 2 SCC 649

3. The aforesaid contention of the Applicant/Defendant No.1 has been accepted by the counsel appearing for the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav.

4. On the other hand, learned counsel appearing for the plaintiff/Non- Applicant No.1- Munnalal Agrawal, while referring to the order sheet dated 08.12.2016, submits that since the notice issued to the Defendant No.1/Applicant was neither returned served nor unserved and, as she was residing at Noida, therefore, a request was made on 10.03.2017 for serving the notice upon her through paper publication and the said application, marked as I.A.No.2, made to this effect was allowed on 03.04.2017 and the Non-Applicant No.1/plaintiff was permitted to serve the notice upon her through the paper publication, namely, “Times of India”, which is widely circulated at both the places, i.e. Delhi and Bhopal and, only on due service upon her on 19.04.2017, the matter was directed to be listed for final hearing in due course vide order dated 30.06.2017. Further of his contention is that the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav had questioned the impugned judgment and decree before Hon’ble the Supreme Court, which was dismissed vide order dated 06.12.2021 in Special Leave to Appeal (C) Nos.19530-19531/2021 and, much after the dismissal of the said appeal, the instant petition has been filed with an ulterior motive to get rid of the impugned decree. The petition as framed, therefore, deserves to be dismissed with costs.

5. I have heard learned counsel appearing for the parties and perused the entire record carefully.

6. From perusal of the record, it appears that a suit, being Civil Suit No.7- A/2007 instituted by the plaintiff/Non-Applicant No.1 for specific performance of contract against the Defendant No.1/Applicant- Smt. Sobhna Chourasiya and the Defendant No.2/Non-Applicant No.2- Smt. Saraswati Yadav, the purchaser under the registered deed of sale dated 31.03.2004 from her, was dismissed by the trial Court vide judgment and de