RAJIV SHARMA, J. - (1.) HEARD learned counsel for the parties.
(2.) BRIEF facts giving rise to the instant writ petition are that a suit for permanent injunction has been filed by Tauheed Khan and others against the petitioners on 12.5.1981. The said Suit was decided ex parte against the defendants-petitioners vide order dated 26.7.1984. Thereafter, the petitioners moved an application under Order 9 Rule 13 CPC alongwith an affidavit under Section 5 of Limitation Act which was dismissed vide order dated 21.1.1998. Being aggrieved, they filed Misc. Civil Appeal No. 69 of 1998 which too was dismissed vide order dated 18.5.2009. Feeling aggrieved, the instant writ petition has been filed. Learned Counsel for the petitioners submits that on coming to know the ex parte decree, they moved an application under Order 9 Rule 13 CPC duly supported by an affidavit stating therein that as the service was not effected on them and as such, they were not aware of the proceedings. The said application was dismissed by the trial Court inter alia on the ground that the service has been affected on two defendants, namely, Mohd. Ajmal and Smt. Aisha Bibi and as such, the trial Court has deemed that the service has been affected on all the defendants. Though an appeal has been filed, the Appellate Authority, without looking into the facts and circumstances, dismissed the appeal. On the other hand, learned Standing Counsel submits that since the service has been affected on two defendants, which is evident from the pleadings of the writ petition, the impugned orders have rightly been passed. Therefore, the writ petition is liable to be dismissed.
(3.) ACCORDING to the office report dated 21.7.2010, the opposite party nos.1 and 2 are represented by the learned Chief Standing Counsel. Service of notice on opposite party nos.3 to 12 is deemed sufficient under Chapter VIII Rule 12 of the Allahabad High Court Rules, 1952. According to the provisions of Order 5 Rule 11 CPC, save as otherwise prescribed, where there are more defendants than one, service of the summons shall be made on each defendant. Admittedly, service has not been affected personally on all the defendants. Therefore, in violation of the aforesaid provisions, the application under Order 9 Rule 13 CPC has been dismissed. As the Appellate Authority has simply affirmed the order passed by the Court below, the said order is liable to be quashed.;