Uttarakhand High Court
Unknown vs M/S Rhydburg Pharmaceuticals Ltd on 21 August, 2025
2025:UHC:7395
HIGH COURT OF UTTARAKHAND AT NAINITAL
Appeal From Order No. 373 of 2019
21st August, 2025
Ragini Gupta and another .........Appellant
Versus
M/s Rhydburg Pharmaceuticals Ltd. .......Respondent
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Presence:-
Mr. Ganesh Kandpal, learned counsel for the petitioners.
Despite service of notice, none has put in appearance on behalf of
the respondent.
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Hon'ble Mr. Alok Mahra, J.
The present Appeal from Order has been
preferred against the judgment and order dated
30.05.2019, passed by the learned 1st Additional
Civil Judge (Senior Division), Dehradun in Regular
Misc. Case No. 98 of 2019, Smt. Ragini v. M/s
Rhydburg Pharmaceuticals Ltd.
2. The brief facts, necessary for adjudication
of the present appeal, are that the
respondent/plaintiff instituted Original Suit No. 590
of 2009 before the Court of Civil Judge (Senior
Division), Dehradun, seeking a decree for recovery
of ₹8,23,141.60 along with interest @ 24% per
annum w.e.f. 16.12.2006. In the plaint, it was
pleaded that the respondent/plaintiff, a duly
incorporated company under the Companies Act,
1956 under the name and style of M/s Smriti
Health Care, is engaged in the business of
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manufacturing pharmaceutical products, and the
appellant/defendant was one of its
distributors/wholesalers. It was further alleged that
the appellant/defendant made part-payments
against invoices issued by the respondent/plaintiff,
but failed to discharge the entire outstanding
liability despite repeated supplies under invoices
detailed in the plaint. Consequently, the aforesaid
suit for recovery was instituted. Summons were
issued, but could not be served upon the
appellant/defendant. Thereafter, vide order dated
10.09.2014, the trial court proceeded ex parte
against the appellant/defendant. Subsequently, by
judgment and decree dated 06.12.2017, the suit
was decreed ex parte, directing the
appellant/defendant to pay the decretal sum along
with interest @ 24% per annum from the date of
filing till realization. Feeling Aggrieved, the
appellant/defendant moved an application under
Order IX Rule 13 C.P.C. seeking to set aside the ex
parte decree dated 06.12.2017, accompanied by an
application under Section 5 of the Limitation Act for
condonation of delay. The said application, however,
came to be dismissed by the learned trial court on
30.05.2019, holding the same to be barred by
limitation. Hence, this appeal.
3. Learned counsel for the
appellant/defendant would submit that the
impugned order dated 30.05.2019 is unsustainable
in law; that, the court below failed to appreciate
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that the ex parte decree was obtained without valid
service of summons upon the appellant/defendant.
It is argued that the publication was effected in a
local newspaper with no wide circulation and,
therefore, the appellant/defendant had no
knowledge of the proceedings.
4. It is further urged that the
appellant/defendant came to know of the ex parte
decree only when one Ananya Srivastava, allegedly
an employee of the respondent/plaintiff company,
supplied a photocopy of the ex parte judgment and
decree dated 06.12.2017; that, on inquiry, it was
revealed that the respondent/plaintiff had
deliberately mentioned the appellant/defendant’s
old address (where he resided only till 2012) despite
being aware of his subsequent change of residence;
that, this deliberate misstatement of address
deprived the appellant/defendant of the opportunity
to contest the suit, resulting in the ex parte decree.
5. Learned counsel contends that the
summons of the suit was never received by the
appellant/defendant and hence, his non-
appearance cannot be said to be deliberate or
intentional; that, the decree having been passed
without affording him any opportunity of hearing is
vitiated in law; that, the learned trial court erred in
rejecting the application under Section 5 of the
Limitation Act. In support of his contention, he
relied upon the judgment in the case of Collector,
Land Acquisition, Anantnag and Another v.
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Katiji and Others, (1987) 2 SCC 107, wherein the
Hon’ble Supreme Court held that “sufficient cause”
under Section 5 must be liberally construed so that
substantial justice is not sacrificed at the altar of
technicalities.
6. Per contra, learned counsel for the
respondent/plaintiff supported the impugned order
and prayed for dismissal of the appeal.
7. Heard learned counsel for the parties and
perused the record.
8. Perusal of the record reveals that the
appellant/defendant was not duly served with
summons in the original suit. The service by way of
publication in a local newspaper namely Rashtriya
Sahara, which has no wide circulation cannot be
treated as adequate compliance with the
requirement of law. Consequently, the decree dated
06.12.2017 was passed without affording the
appellant/defendant any opportunity of hearing.
9. The law on this aspect is well settled. In
S.L. Kapoor v. Jagmohan and Others, (1980) 4
SCC 379, the Hon’ble Supreme Court held that
where civil consequences ensue, failure to observe
audi alteram partem vitiates the order; absence of
hearing cannot be justified by saying “no prejudice
was caused.” Similarly, in Canara Bank and Others
and Others v. Debasis Das and Others, (2003) 4
SCC 557, it was held that nobody should be
condemned unheard, and unless notice is clear and
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adequate, the order stands vitiated.
9. In State of U.P. v. Sudhir Kumar Singh
and Others, (2021) 19 SCC 706, the Apex Court
reiterated that denial of hearing generally vitiates
the action, and prejudice is presumed where
adverse orders are passed behind the back of the
affected party.
10. On the question of condonation of delay,
the law equally favours a liberal approach. In N.
Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC
123, it was held that length of delay is immaterial,
acceptability of the explanation being the decisive
factor. Likewise, in Improvement Trust, Ludhiana
v. Ujagar Singh and Others, (2010) 6 SCC 786, it
was held that when substantial justice and
technicalities are in conflict, substantial justice
must prevail.
11. In the facts of the present case, sufficient
cause for condonation of delay has been
satisfactorily explained. The denial of an
opportunity of hearing, owing to lack of proper
service of summons, has resulted in grave prejudice
to the appellant/defendant.
12. Accordingly, the order dated 30.05.2019
passed by the learned 1st Additional Civil Judge
(Senior Division), Dehradun in Regular Misc. Case
No. 98 of 2019 is hereby set aside. The application
under Section 5 of the Limitation Act stands
allowed. The appeal is allowed to the extent that the
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learned trial court shall now decide the appellant’s
application under Order IX Rule 13 C.P.C. afresh on
its own merits after hearing both parties.
13. The trial court is requested to expedite the
proceedings and decide the matter strictly in
accordance with law.
14. Pending applications, if any, also stand
disposed of.
(ALOK MAHRA, J.)
21.08.2025.
Mamta
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