Daniel Padma Rao vs Herold Earnest Lawrence Davey

B.K. Somasekhara, J.—The Order of the learned First Additional Judge, City Civil Court, Hyderabad in LA. No. 337/92 in O.S. No. 550/91 dated 30-4-1992 dismissing it, is assailed in this appeal. It was filed under Order 9 Rule 13 of C.P.C. to set aside the ex parte decree dated 27-1-1992 passed against the defendant-appellant. The respondent is the plaintiff who filed the suit and got the decree.

The defendant was duly served with suit summons in O.S. No. 550 of 1991. He engaged one Sri Reddi an Advocate to represent him. His Advocate filed the vakalat in to the Court from him on 30-9-91. The case was adjourned from time to time to 3-10-91, 28-10-91 and 27-1 -92 on which date neither the defendant nor his Advocate appeared in the Court and therefore, the suit was decreed ex parte. The defendant file I.A. 337/92 on 23-3-1992 to set aside the ex parte decree.

It was opposed by the plaintiff. The learned trial Judge held that the petition was barred by the period of limitation of 30 days prescribed under Article 123 of the Indian Limitation Act (hereinafter called ''the Act''). The contention that the period of limitation commenced from the date of knowledge of the decree which the defendant had, was rejected and since no application was filed u/s 5 of the Limitation Act to condone the delay, the petition to set aside the ex parte decree was dismissed for want of limitation. Consequently no finding was given regarding the merits of the case namely, the sufficient cause sought to be shown by the defendant from appearing in the Court when the suit was called on for hearing.

Number of grounds are raised in the appeal challenging the order of the learned trial Judge including the merits of I.A. No. 337/92 and also the merits of the suit. However, to confine to the scope of this appeal, the learned Advocate as raised the following contentions in support of the relevant grounds in the appeal:

(1) The period of limitation of 30 days to set aside the decree passed ex parte began to run when the defendant as knowledge of the decree and not from the date of the decree and therefore, the learned trial Judge was not justified in holding that the application was barred by limitation.

(2) Since the period of limitation to set aside the exparte decree began to run when the defendant had the knowledge of the decree and since the petition was not barred by limitation, the learned Munsif was wrong in dismissing the petition on the ground that no application u/s 5 of the Act was filed to condone the delay.

(3) The learned trial Judge was in error in not examining the cause on merits about the sufficient cause pleaded by the defendant to set aside the ex parte decree. Despite the defendant not filing any application to condone the delay in filing the petition to set aside the decree passed ex parte, the learned trial Judge was bound to consider the materials on record to examine and hold whether there was sufficient cause to condone the delay in filing the petition. The order of the learned trial Judge is illegal and therefore, liable to be set aside.

As against this, Mr. M.V. Suresh Kumar, the learned Advocate for the respondent-plaintiff has contended to the contrary and tried to support the order of the trial Judge. The first contention is squarely opposed to the known and settled law relating to the period of limitation for filing an application under Order 9 Rule 13 of C.P.C to set aside the decree passed ex parte. In Schedule III Division Part I Article 123 of the Limitation Act operates the law and rejects the first contention. To repeat:

_____________________________________________________________________________ Description Period of Time from of suits Limitation which period begins to run ______________________________________________________________________________ 123. To set aside a Thirty days The date of the decree decree passed ex parte or (30 days) or whether the summons to rehear an appeal decreed or notice was not duly or heard ex parte served, when the applicant had knowledge of the decree ________________________________________________________________________________ Simpliciter for an application to set aside a decree passed ex parte the period of limitation of 30 days begins to run from:

(1) the date of the decree (where the summons or notice was duly served) or

(2) the knowledge of the decree where the summons or notice was not duly served.

In view of the unambiguous transparent expression of law of limitation in Article 123 supra, strictly speaking no aid of precedents need be taken. However, the learned Advocate for the respondent has usefully fortified himself with a pronouncement of the High Court of Madras International Cotton Traders, Tatabad, Coimbatore Vs. P. Narayanaswami, . Therein a succinct and trite expression of the law on the question is made, and to read:

".....Thus, the starting points of limitation are two. One is the date of the decree and the other is the date of the knowledge of the decree. With reference to the second, the condition to be satisfied is that no summons or notice should have been duly served. Thus, it is clear that a person applying for setting aside an ex parte decree can claim the period of limitation to commence from his knowledge of the decree only in a case where the summons or notice was not duly served. In other cases-limitation commences from the date of decree itself,

Admittedly, the defendant-appellant was duly served with the summons, he engaged an Advocate to represent him who had filed the vakalat, attended the Court till 28-10-1991 and failed to attend the Court on 27-1-92 when the case was called for hearing to result in the ex parte decree. Therefore, the time from which the period of limitation of 30 days began to run was from 27-1-1992 the date on which the decree was passed and not the date of knowledge as pleaded by the defendant. Admittedly, the application to set aside the ex parte decree was filed on 23-3-92 which was 55 days from the date of the decree and therefore, beyond 30 days of the prescribed period of limitation. The delay was 25 days. Therefore, the learned trial Judge was right in holding that the application to set aside the decree passed ex parte was barred by limitation on the ground that the period of limitation of 30 days began to run from the date of the decree and not from the date of the knowledge of the decree. All the efforts of the learned Advocate for the appellant-defendant to support himself with the precedent in regard to the contention that the period of Limitation begins to run from the date of the knowledge of the decree, concern the cases where either admittedly summons were not served or found to be not duly served.

The learned trial Judge has rightly adverted to Section 3(1) of the Limitation Act as the basis to dismiss the application. It reads thus:

"Subject to the provisions contained in Sections 4 - 24 (inclusive), every suit in stituated, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."

This provision is mandatory. It imposes an obligation on the Court to dismiss a suit, appeal or application which is barred by limitation prescribed by the law notwithstanding that the defence in regard to the bar of limitation is set up. To that extent, the learned trial Judge was totally justified in drawing the principle of law from this provision. Such an absolute result in law of limitation appears to have been not fully explored in this regard by the learned trial Judge, and by all the participants in this litigation and that needs to be examined by this Court.

It is true that no application u/s 5 of the Limitation Act was filed by the defendant-appellant to condone the delay in filing the application to set aside the ex parte decree. The learned trial Judge has also noted this and on the ground that no petition to condone the delay is filed, the application was dismissed. It is significant to note that both in the trial Court and also in this Court a definite ground was put up on behalf of the appellant-defendant that since the period of limitation commenced from the date of knowledge of the decree, no application for condonation of delay was necessary. However, when such a contention could not be pursued successfully supported by the law or the precedents the learned Advocate for the appellant made a last attempt before this Court contending that it was possible for the trial Judge to be satisfied with the materials to condone the delay in filing the application to set aside the ex parte decree without insisting for an application u/s 5 of the Limitation Act. Such a contention is also found in Para 8 of the affidavit filed by the appellant in C.M.P. No. 72151/1992 in this Court reiterating that no such application was necessary since the period of limitation commenced from the date of knowledge of the decree and not from the date of the decree. It was not contended at any stage that in law, no application for condonation of delay is necessary u/s 5 of the Limitation Act to make the order of the learned trial Judge bad in law. However, this question being a pure question of law depending upon the interpretation of Section 5 of the Limitation Act and having heard both the sides on this question elaborately, this Court is constrained to deal with the decide such a question of law.

Therefore, the pure question of law to operate upon the facts and circumstances of this case to be decided is whether an application to condone the delay u/s 5 of the Limitation Act is necessary and whether the Court is bound or may examine the materials before it to be satisfied or otherwise about the su sufficiency for such delay in filing the appeal petition etc. The recorded expression of Section 5 of the Limitation Act would be necessary:

"Extension of prescribed period in certain cases:- Any appeal or any application, other than an application under any of the provisions of Order XXI of the CPC 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application application within such period.

Explanation:-The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."

In the nature of the principle of law what we are confronted with is that Section 5 should be read with Section 3(1) of the Limitation Act. The general mandatory rule is that every suit, appeal or application made after the prescribed period of limitation shall be dismissed although limitation has not been set up as a defence. In the first place, this is subject to the provisions contained in Sections 4 - 24 (inclusive of Section 5) which should be read as either supplementaries or provisos to Section 3(1) of the Act. Where any case falls under the said provisions the mandate in Section 3(1) of the Act need not be followed. Without elaborating much on the implications of such provisions (Sections 4 - 24 of the Act), the exceptions may be stated. The period beyond the prescribed period of limitation will be excluded for computation of limitation to reckon:

(1) When the Court is closed (Section 4)

(2) When sufficient cause is shown for not preferring the appeal or making the application (Section 5)

(3) the period of legal and other disabilities exist at the time of filing the proceedings (Sections 6 - 8)

(4) suit against trustees and their representatives (Section 10)

(5) suit on contracts entered into outside the territories to which the Act extends (Section 11)

(6) exclusion of time in legal proceedings (Section 12)

(7) exclusion of time in cases where leave to sue or appeal as a pauper is applied for (Section 13)

(8) exclusion of time of proceeding bona fide in Court without jurisdiction (Section 14)

(9) exclusion of time in certain other cases (Section 15)

(10) effect of death on or before the accrual of the right of issue (Section 16)

(11) effect of fraud or mistake (Section 17)

(12) effect of acknowledgment in writing (Section 18)

(13) effect of payment on account of debt or of interest on legacy (Section 19)

(14) effect of acknowledgment or payment by any person (Section 20).

But the rule is that when once time has begun to run no subsequent disability or inability to institute a suit or make an application stops it. Therefore, the mandatory rule in Section 3(1) of the Act is not absolute but conditional and contingent upon the stipulations mentioned in Sections 4 - 20 of the Act. None of these provision contemplate any application to be filed by the parties to the . litigation to get the benefit of such contingency which can be read as exceptions and it is for the Court to examine such contingencies before invoking its powers or to be bound by the duties to dismiss such proceedings by reading into Section 3(1) of the Act. The opening expressions of this provision commences with the words "subject to the provisions contained in Sections 4 - 24". Therefore, the Court cannot automatically dismiss the suit or such proceedings unless the implications contained in Sections 4 - 24 are examined by the Court. In other words, the final order of the dismissal of the application by the learned trial Judge was subject to his examining the implications of Section 5 of the Act and was never a mechanical or automatic act resulting in the dismissal.

Now to confine to the relevant Section 5 of the Act, patently it does not contemplate any application to be filed by the parties to get the benefit of the provision. It is for the Court to examine whether the appellant or the applicant has satisfied that he or she had sufficient cause for not preferring it or not making it within the prescribed period of limitation. The Court cannot read into a provision for an obligation of making an application when not contained in either expressly or to be understood by necessary implications. The correct interpretation of Section 5 of the Limitation Act appears to be that no application under the provision to condone the delay is either necessary or mandatory. Such a course to file an application to condone the delay appears to be either made or insisted as a habit or practice or as a part of desirability to have all the materials for the Court to satisfy itself whether there was sufficient cause for condoning the delay. Both the sides were given an opportunity to explore that legal question to know whether the law in this regard is fairly settled, if not well settled. In Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram, Ahmedabad and Others, , Nirmal Chaudhary Vs. Bishambar Lal, and Markland Pvt. Ltd. and Others Vs. State of Gujarat, , the consistent view is that no application for condonation of delay u/s 5 of the Limitation Act is necessary. No precedent was presented in support of the contrary view.

In Nirmal Chaudhary Vs. Bishambar Lal, , the High Court of Delhi said:

".....As the provisions of Section 5 of the Limitation Act and the proviso to Section 38(2) are framed it does not even necessarily imply in law that the power of the Court to condone the delay is circumscribed by an application being filed. The power to condone delay can be exercised if the appellant satisfies the Court that he had sufficient cause for not filing the appeal with in the period prescribed. The Court can be satisfied even from the affidavits or the documents on the record. It is not necessary in law that an application must be filed. Of course as a matter of practice the appellant does file such an application. But the power of the Court is not necessarily dependant on a formal application, being made by the appellant. If it is made, well and good; but if it is not made and only an oral prayer is made for condonation of delay, the Court is not powerless if there is material on the record to show facts constituting sufficient cause for condonation of delay."

However, an exception was drawn whether the party was ignorant or not ingorant about the bar of limitation as follows, in the decision supra:

"......If an appellant knows that the appeal is barred by time, it goes without saying that he would have to apply for condonation of delay while presenting the appeal. Otherwise, there may be lack of bonafides, and consequently lack of sufficient cause. But, where the appellant is ignorant that the appeal is barred by time, there is no rule of law, nor any practice that the application for condonation of delay for exercise of power u/s 5 of the Limitation Act read with Section 29(2) thereof or under the proviso to Sub-section (2) of Section 38 of the Act must be filed with memorandum of appeal. It cannot be filed at all because the appellant is Ignorant about the delay."

In M/s. Markland Pvt. Ltd. s''s (4 supra), the High Court of Gujarat said:

"......There is no dispute with regard to the fact that provisions of Section 5 of the Limitation Act do apply to these proceedings. Section 5 of the Limitation Act only requires the appellant or the applicant to satisfy the Court that he had sufficient cause for not preferring the appeal or making the revision application within such period. The section does not require that there should be a written application for condonation of delay."

The same view has been taken in Naran Anappa Sheti Vs. Jayantilal Chunilal Sahah, and Patel Purushottamdas Motilal v. Patel Chotabhai Motibhai (1979) 20 Guj.L.R. 918 earlier.

This Court after a deep probe into this question of law respectfully agree with the views in the decisions supra. When Section 5 of the Limitation Act itself does not provide for such an application muchless a written application, the Court cannot read such a stipulation into the provision. The peremptory intent in Section 3(1) is diluted into regulatory or directory and in view of many exceptions in the nature of provisos viz., subject to Sections 4 - 20 of the Act It only expects that a litigant should satisfy the Court that he had sufficient cause for the delay. How to satisfy the Court depends upon the facts and circumstances of each case. The source may be anything including the main proceedings (original petition, appeal etc.,) affidavits (under Order 19 Rules 1 and 2 of C.P.C), oral evidence documentary evidence even the oral submissions at the time of addressing arguments and any circumstance available on record or to be judicially noticed by the Courts. It is for the Court to be satisfied or not about the sufficient cause to exercise the judicial discretion u/s 5 of the Limitation Act (the word ''may'' is used) and not for others to say as how it should be done. If the materials by themselves are not sufficient the Court may direct the parties to lead evidence. It does not suffice for the Court to say that since no application is filed for condonation, the delay cannot be condoned. The trial Judge appears to have overlooked Civil Rules of Practice framed by the High Court under Article 227 of the Constitution of India and Section 126 of the Code of Civil Procedure. The relevant Rule 60 (old 33) in Chapter V-A-Interlocutory Proceedings, reads:

"Proof of facts by affidavit:- Any fact required to be proved upon an interlocutory proceeding shall unless otherwise provide by the rules or ordered by the Court, be proved by affidavit but the Judge may, in any case, direct evidence to be given orally, and thereupon the evidence shall be recorded, and exhibits marked, in the same manner as in a suit and lists of the witnesses and exhibits shall be prepared and annexed to the judgment."

It can be read as part of Order 19 Rule 2 of C.P.C. The trial Judge was dealing with I. A.No. 337/92 an interlocutory application covered by Chapter V of Civil Rules of Practice supra. Affidavits of the defendant-appellant and his counsel and a Doctor''s certificate are filed in support of the application which contain some reasons as to why the defendant did not appear in Court till the decree was passed and till he was evicted from the suit schedule property. The Court was bound to examine the materials to satisfy or not, whether there was sufficient cause for condonation of delay of 25 days. The learned Advocate for the respondent appears to be right in suggesting that the defendant''s attitude might have misdirected the Court in not examining such a question. But the Courts cannot be directed or misdirected by the conduct of parties or Advocates. The real guide of Courts is the law and ends of justice.

The learned Advocate for the appellant-defendant suggests that atleast now this Court may examine the materials and give a finding u/s 5 of the Limitation Act regarding sufficiency of the cause or remand the matter to the trial Court to examine and give such a finding. The learned Advocate for the respondent opposes this since the defendant never wanted such a course through out and there was not even a formal prayer to condone the delay except now in this Court at a very belated stage as a desperate attempt. This appeal is the continuation of the original proceedings under Order 9 Rule 13 of C.P.C Such a prayer could be made at any stage as an oral application since, ''apply'' means nothing but a prayer or request (page 125 right column Vol.1 of the law Lexcon by T.P. Mukherjee & K.K. Singh 1971 Edn.), ''application'' means: "a putting to, placing before, preferring a request or petition to or before a person, the act of making a request for som" (page 127 right column of Black''s Law Dictionary 4th Edn. 1951) and "the act of making a request for something which need not be in writing" (page 214 left column in Bouvier''s Law Dictionary Vol.1 1914 Edn.).

Now the question is whether this Court should hold an enquiry into such a question of fact the finding on which will decide the fate of parties. The appellant-defendant has taken a very defiant and dogmatic attitude even while sinking. The respondent-plaintiff has no opportunity of meeting such grounds to condone the delay but made for a different purpose. There are no clear materials for this Court to assess and give a finding on the question of sufficiency or otherwise for the delay. No period of limitation is prescribed for an application u/s 5 of Limitation Act (except perhaps residuary Article 137 of the Act being three years from the time when the right to apply accrues excluding the period spent in this litigation u/s 14 of the Act). The circumstances warrant remand of the matter when the appellant-defendant can make such an application, the plaintiff-respondent can file the counter or objections and the Court can hold an enquiry and dispose of the matter on merits. If no such application is filed the matter can be disposed of with existing materials after hearing both the sides. But this should be subject to serious terms.

It is reported that plaintiff-respondent has come into possession of the suit property by executing the decree and the defendant-appellant is no longer in possession of the same. Under the circumstances such a status quo should continue pending disposal of the application by the trial Court.

The appeal is allowed. The order of dismissal of LA. No. 337/92 in OS. No. 550/91 dated 30-4-1992 is set aside. The matter is remitted back to the trial Court for disposal on merits according to law and in the light of the observations supra. The appellant-defendant may file an application u/s 5 of the Limitation Act in the trial Court for condonation of delay in filing I.A. 337/92 supported by an affidavit of the party, within fifteen days from the date of receipt of this order by the trial Court The plaintiff-respondent shall be en titled to file counter within a reasonable time to be fixed by the trial Court. If the defendant-appellant fails to file the application u/s 5 of the Limitation Act within the stipulated period he shall be debarred from doing it on any ground, but the Court shall hear the question of condonation of delay, with the materials available on record and dispose of the matter in accordance with law. The appellant-defendant shall not be entitled to the benefit of this order unless he pays to the plaintiff-respondent or his Advocate or deposits into the trial Court costs of Rs. 1,000/- (Rupees One Thousand Only) within one week from today. The status quo in regard to the possession of the suit property with the plaintiff-respondent shall continue and shall not be disturbed for any reason pending disposal of the proceedings in the trial Court.

The registry is directed to send back the records along with a copy of this order to the trial Court within ten days from today and report of compliance shall be made in the records.