Hari Shankar Ojha vs Shankar Lal Daga and Others

Chaudhary Sia Saran Sinha, J.—The important point involved in this civil revision application filed u/s 115(1) of the Civil P. C. is whether the application filed by the petitioner for setting aside the ex parte decree is in time, both the Courts below having found that the application is barred by limitation.

The petitioner was a defendant in a suit for eviction, the claim being based on default in payment of the rent and personal necessity. Petitioner, the sole defendant appeared in this suit on 4-11-1976, obviously on service of summons. On 25-11-1976, another date was Fixed in the suit, he filed a petition for time to file written statement. This prayer was rejected and the suit was adjourned to 23-12-1976 for ex parte hearing. In between 23-12-1976 and 7-4-1977, certain orders were passed, details whereof are not necessary for disposal of this civil revision on the limited question of limitation. It would suffice to say that on 7-4-1977 the trial Court decreed the suit ex parte.

It appears that the petitioner filed an application for setting aside the ex parte decree on 21-9-1977 alleging that he was ill from 30-3-1977 to 15-9-1977 and as such he had sufficient cause for not being present in Court on 7-4-1977. Undisputedly, he did not state therein as to the date when he came to know about the ex parte decree nor did he file any application for condonation of delay in filing the application.

The application was resisted by the opposite party, heirs of the deceased plaintiff, stating that it was barred by limitation and that the applicant being present in Court on 7-4-1977, he allowed the ex parte decree to be passed in order to harass them.

Both the Courts below disbelieved the story of illness set up by the petitioner and held that he had no sufficient cause for not appearing on 7-4-1977. Both the Courts also concurrently held that the application was barred by limitation.

Without going into the merits or otherwise of the other contention raised on behalf of the petitioner whether the petitioner had sufficient cause for not appearing on 7-4-1977, this revision application can be disposed of only on the point of limitation. The language of Article 123 of the Limitation Act, 1963, which undisputedly applies to the instant case and which corresponds to Article 164 of the Limitation Act, 1908, is, in my opinion, quite clear. It prescribes a period of 30 days for filing an application to set aside a decree passed ex parte. The period, when the limitation runs, has been stated therein as follows:--

"To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte.

Thirty days.

The date of the decreeor where the sum mons or notice was not duty served, when the applicant had knowledge of the decrease."

It would appear that the provision as to when the limitation will start running consists of two parts, quite separable in nature, namely the date of the decree and the date when the applicant had knowledge of the decree. The first part, namely, the date of the decree is general in nature and is intended to cover all cases except the one covered by the second part, namely, the case when the summons or notice was not duly served on the defendant. The second part of the provision appears to be in the nature of an exception to the first part which (second part) comes into operation only in one circumstance stated therein.

In the instant case, it is not the case of the petitioner that summons or the notice was not duly served on him. In fact, as stated above, he appeared in the suit undisputedly on summons being served and made a prayer for filing written statement though the same was rejected. In such a situation, the first part of Article 123 of the Limitation Act will be attracted, namely, that the period of limitation will run from the date of the decree, which undisputedly is 7-4-1977.

Relying on certain decisions, Sri B.K. Dey, learned counsel for the petitioner, submitted that the term "the date of the decree" occurring in Article 123 of the Limitation Act should mean the date when the petitioner came to know of the ex parte decree either actually or constructively and the petitioner being ill from 30-3-1977 to 15-9-1977, "the date of knowledge in the suit should have been held to be within 30 days proceeding (wrongly typed for preceding) the presentation of the application under Order 9, Rule 13 of the Civil P. C." vide Para VI of the Grounds of the revision application.

This contention cannot be accepted. The onus is on the petitioner to show that the application under Order 9, Rule 13 of the Civil P. C, made by him is within time. Since the petitioner appeared in the suit, undisputedly, on due service of summons, the second part of Article 123 of the Limitation Act cannot come into operation and the application for setting aside the ex parte decree having been made much beyond the period of 30 days of the date of the decree, the application has to be held as barred by limitation.

The decisions relied upon by the counsel for the petitioner do not come to his rescue. Their Lordships of the Supreme Court in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, were dealing with a case of an award under the Land Acquisition Act, Section 12(2) whereof, made it incumbent on the authority to give notice of the award, which notice had not been given in that case. It was in such a situation that their Lordships observed that the date of the award cannot be determined solely by reference to the time when the award was signed by the Collector or delivered by him in his office: it must involve the consideration of the question as to whether it was known to the party concerned either actually or constructively. In the instant case, we are not concerned with an award. There is no provision in the Civil P. C. similar to the provisions of Section 12(2) of the Land Acquisition Act nor can it be said that while passing the ex parte decree the munsif was acting ''as an agent of the Government and not as a Judicial Officer.''

In the single Bench decision of the Andhra Pradesh High Court reported in Zohra Begum alias Aysha Begum Vs. Mohamed Ghouse Qadri Qadeeri and Another, , the case related to an ex parte order of maintenance. The decision was based primarily on the case of Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, which is distinguishable. The case having been disposed of on a ground other than limitation, the observations as to the point of limitation are, more or less, obiter dicta.

The decision of the Supreme Court in the case reported in AIR 1967 SC 1384 Panna Lall v. Murari Lal, can also be of no help to the petitioner. In that case, summons had not been served on the defendant unlike the instant case and their Lordships were concerned with the interpretation of the terms ''knowledge of the decree'' occurring in second part of Article 164 of the old Act.

Learned counsel for the opposite parties relied in this connection on a single Bench decision of this Court reported in 1963 BLJR 484 Chakradhar Prasad Sahi v. Rewati Raman Sahi, which supports the view I have taken above.

It may be mentioned that the story of illness, alleged by the petitioner, has been disbelieved by both the Courts below and, in my opinion, rightly. It is also undisputed that the petitioner did not mention in his application for restoration as to what was the date of his knowledge of the ex parte decree nor did he show any cause as to why the application was not filed by him in between 16-9-1977, he having recovered from the alleged illness on 15-9-1977 and 20-9-1977, the date preceding the filing of the application on 21-9-1977. Undisputedly, he did not also file any application for condonation of delay.

Thus it must be held that the application for restoration is barred by limitation and this being so, it is needless to consider the other point regarding the sufficiency or otherwise of the cause for not appearing on 7-4-1977 or to discuss the decision of this Court reported in 1969 BUR 367 Gobind Ram Agarwala v. Harsukh Rai Doshi.

In the result, the Revision Application fails and is dismissed but in the circumstances, there will be no order as to costs of this revision application.