IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.255 of 2022 Date of Decision: 04.10.2023 Roshan Lal ...Appellant Versus Rakesh Kumar ...Respondent Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ Yes.

For the ApCpellant : Mr. Bhuvnesh Sharma, Senior Advocate with Mr. Parav Sharma, Advocate.

Forh the Respondent : Ms. Anjali Soni Verma and Ms. Shivani Tegta, Advocates. Rakesh Kainthla, Judge (Oral)

The present appeal is directed against the order dated 26.7.2022, passed by the learned Additional District Judge, Hamirpur, Circuit Court, Barsar, District Hamirpur, H.P., vide which the application for condonation of delay in filing the appeal was dismissed. (Parties shall hereinafter be referred to in

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

the same manner as they were arrayed before the learned Trial Court for convenience).

2. The facts giving rise to the presHent appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a permanent prohibitory injunction for restraining the defendant, his agents, servants and family members from raising any construction over the land comprised in Khata No. 94, Khatauni No. 113, Khasra No. 1216, land measuring 2 Kanals 8 Marlas, situated in Tikka Barsar, Tappa Punjgran, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as the suit land). A relief of possession by way of demolition was also sought in case the defendant succeeds in raising any structure over the suit land. It was pleaded that the plaintiff is an owner in possession of the suit land and the defendant is a stranger, having no right, title or interest over the same. The defendant started digging the suit land and collecting the construction material. The plaintiff requested the defendant not to do so, but in vain. Hence, the suit was filed to seek the relief(s) mentioned above.

3. Notice of the suit was issued to the defendant. The wife of the defendant refused to accept the service of notice; hence the notice was served by way of affixation. Learned Trial Court held that the service was valid and the defendant was not present despite valid service and proceeded against the defendant ex-parte.

4. The plaintiff was called upon to produce the evidence and the plaintiff filed his affidavit and the affidavit of Dharam Chand. Learned Trial Court held that the version of the plaintiff regarding the ownership and possession was corroborated by the copy of Jamabandi for the years 1991-92. The defendant had no legal right in the suit land. The evidence of the plaintiff was un-rebutted and there was no reason to disbelieve the same. The defendant had no right to interfere over the suit land belonging to the plaintiff; hence the learned Trial Court decreed the suit.

5. Plaintiff initiated proceedings under Order 21 Rule 32 of CPC against the defendant. The defendant filed an appeal along with an application for condonation of delay in filing the appeal. He asserted that he was unaware of the passing of an ex- parte decree as no valid service was effected upon him or his wife. The defendant came to know about the judgment and decree when he was served through non-bailable warrants of arrest by the learned Trial Court. The defendant engaged the counsel and applied for a certified copy of the judgment. Thereafter, he came to know about the passing of the ex-parte decree. The delay was not intentional. There was sufficient cause for the condonation of delay. The report of Process Server is wrong, hence it was purayed that the delay in filing the appeal be condoned. o

6. The application was opposed by filing a reply taking prelimin ary objections regarding the lack of maintainability and lack of sufficient cause to condone the delay. The contents of the application were denied on merits. It was asserted that the defendant was duly served by way of summons before the learned Trial Court. Learned Trial Court rightly proceeded ex- parte against t