- (1.) BY way of this petition, under Article 227 of the Constitution of India, the pe titioner1 has sought the relief for quashing the order dated 23-12-2002 passed by Dis trict Judge Nainital, in M. C. A. No. 14/ 2001 and order dated 5-9-1992, passed by Civil Judge (S. D.), Nainital in Misc. Case No. 70/1998, contained in Annexure Nos. 1 and 2 to the writ petition.
(2.) THE facts of the petition, in brief, are that suit bearing No. 129 of 1991 was filed by respondent praying for decree bf Rs. 45,799-15? against the petitioner on account of the loss and damages to the vehicle which is alleged to have. been caused by the Truck No. USR 6954 of the petitioner, which was coming from opposite direction on 24-08-1989. THE suit was decreed exparte against the petitioner For a sum of Rs. 45. 799-15p vide order dated 5-9-1992, passed by Civil Judge (S. D.) Nainital. Against the said exparte order, the petitioner filed an application under Order 9, Rule 13 C. P. C. for setting aside the order, along with delay condonation application U/s 5 of the Limitation Act. THE application was rejected by the Civil Judge, on the ground of delay vide order dated 24-7-2001. Feeling aggrieved, the petitioner preferred an appeal which was dismissed by the District Judge, Nainital vide impugned order dated 23-12-2002. The petitioner has preferred the pe tition on the ground that the petitioner was not served with the notice and the expert order has been passed against the provi sion of law. According to him, the publi cation of summons was done in the News Paper Amar Ujala of Bareilly Education, whereas the petitioner is resident of Bijnor, where Amar Ujala of Meerut Edition is in circulation, therefore, the petitioner had no notice about the suit for recovery. It is also alleged that the petitioner has not received any registered letter. The lower court rejected the contention of the peti tioner on the ground of delay without appreciating the genuine reasons ex plained by him. The suit has been decreed exparte and there was no occasion for, the petitioner to put forth his grievance and in this manner prejudice has been caused to the petitioner. It has also pleaded in the petition that the impugned order has been passed in violation of principle of nature justice and is liable to be set aside. The Union of India contested the petition by filing counter affidavit, denying the facts mentioned in the writ peti tion and alleged that the truck of the re spondent bearing registration BA No. 790-D- 343543-N 6. 5 Ton LPT met with an accident with Truck No. USR 6954 due to rash and negligent driving of the said Truck USR 6954. An enquiry was held by re spondent in the matter and it was found that the damage to the truck and injuries sustained by the driver of the Military Truck was only due to rash and negligent driving of the private truck. It has been alleged in the counter affidavit that the petitioner has intentionally and deliberately avoided the process of the court. It is also asserted in the counter affidavit that the Newspaper Amar Ujala is having a wide circulation and it is wrong to state that the paper is not covering the area of Bijnor. The notices by ordinary course and regis tered posts were not returned back and de spite of receiving the same the petitioner has avoided to contest the case. Both the courts below have recorded concurrent finding of fact and the same is not liable to be disturbed in this petition.
(3.) NONE has appeared on behalf of the, respondent. Heard SriSudhir Singh,learned counsel for the petitioner and pe rused the record. Perusal of record shows that the summons were sent to the petitioner on the given address by registered posts as was Ordinary posts but he deliberately avoided the service, hence the notice was published in the Amar Ujala Newspaper dated 9-6-1992, and the service was found to be, sufficient through publication, hence the case was decreed exparte against the petitioner vide impugned judgment and dated 5-9-1992. The Trial Court has the plea of the petitioner that he s in a backward village where the registered notice sent by the court did not reach. It is pertinent to mention here that the execution proceeding against the pe titioner is pending before Civil Judge (S. D.) Bijnor. , and in the said proceeding also the address of the petitioner is the same as has been given in the original case. The petitioner has not disputed this fact before the trial Court. The trial court has recorded a finding that in execution proceeding also the petitioner inspite of information did not appear in court,- and he is in habit of avoiding his presence in courts to contest the proceedings pending against him.;