Jainarain Singh vs Lachmi Prasad Agarwal

Mahabir Prasad, J.—This is an application by the respondent for getting aside an ex parte decree passed by this Court on 1st September 1947, allowing the appeal in his absence under the following circumstances.

It appears that the respondent was served with the notice of appeal on 20th May 1947, intimating that the case was to be heard on 28th July 1947, the notice being in the usual form. The respondent filed a vakalatnama executed in favour of Mr. K.K. Sinha, an advocate of this Court on 23rd July 1947. The appeal was listed on the list of ready cases, which under the rules is published every week, for the first time on nth of August 1947. In the weekly list of ready cases to be heard during the week commencing 20th September 1947, which was published on 30th August 1947, this appeal was again put down mentioning the name of Mr. K.K. Sinha as the advocate appearing for the respondent. It was also set down in the daily cause list of the cases to be heard on 1st September 1947. The name of Mr. K.K. Sinha, as the advocate for the respondent was not mentioned in this list. The appeal was taken up for hearing on 1st September 1947, and Ray J. before whom the case was listed, heard the appeal and, as stated by him in the judgment, there was no appearance for the respondent. He allowed the appeal. This application is made on behalf of the respondent for setting aside the judgment and the decree passed by this Court on the ground that the respondent was prevented from appearing on the date on which the case was heard, because his advocate was not, in the circumstances already stated, served with the notice of the actual date of the hearing of the appeal. He also states in the affidavit filed by him that he had. no knowledge of the ex parte decree passed by this Court before 15th March 1948, when as stated by him, he was informed by one Babu Ramsaroop Kumar, Mokhtar that the appeal pending before this Court bad been allowed. The petitioner further states in his affidavit, that thereafter he came to Patna and caused an enquiry to be made into the matter, and on inspection of the record he came to learn that his case was disposed of by this Court on 1st September 1947 and that there was no appearance on his behalf.

The question which arises for decision is as to whether, in the circumstances, it can be held that the notice of the appeal was not duly served upon him within the meaning of Order 41, Rule 21, Civil P.C., and that of Article 169, Limitation Act entitling him to file this application foe setting aside the ex parte decree within 30 days of the date of the knowledge of the decree alleged by him. There is a counter-affidavit filed on behalf of the opposite party stating that it is not correct that the petitioner did not know of this ex parte decree before 15th March 1948. What is stated in the counter-affidavit filed on behalf of the opposite party is this:

The applicant got knowledge of the result of the appeal only a week after 1st September 1947, and then applicant Jainarain Singh approached this deponent for a compromise which the deponent could not agree on the terms offered by him.

This statement is controverted by the petitioner by an affidavit in reply filed on his behalf. It states:

The applicant Jainarayan Singh never approached Lakshmi Prasad Agarwala for any purpose much less for a comprumise at any time till today.

Having considered the matter carefully, I am inclined to believe that the petitioner did not know of this ex parte decree before the date on which, he alleges, he came to know of it. Obviously there is no reason why if he had known of this ex parte decree earlier he would have delayed in moving this Court for setting aside the ex parte deoree. It is clear that he did intend, and, did all that was required of him, to oppose this appeal by engaging Mr. K.K. Sinha as his advocate to represent him in this Court. It cannot be said that he was not interested in opposing this appeal and that this application for having that ex parte decree set aside is only an afterthought.

The question, however, remains as to whether he can have 30 days for making this application from the date of knowledge of the decree as contemplated by Article 169, Limitation Act. I have no doubt that the ground on which he is seeking this ex parte decree to be set aside is good ground, and I am satisfied that he was prevented from contesting the appeal for a sufficient reason.

Mr. Sarjoo Prasad appearing for the opposite party has strongly contended that if the application is to be allowed on the ground that the applicant has satisfied the Court that he was prevented by sufficient cause from appearing when the appeal was called up for hearing, he is not entitled to have the decree set aside within 30 days from the date of his knowledge of the ex parte decree but he is entitled to do so only within 30 days of the date of the decree. His argument is based on the language used in Article 169, Limitation Act which runs thus:

For the re-hearing Thirty The date of the deoree of an appeal heard days. in appeal or, where ex parte notice of the appeal was not duly served, when the applicant has knowledge of the decree.

It is clear that the clause "when the applicant has knowledge of the decree" has reference only to clause "where notices of the appeal was not duly served." In the other case, namely, when the respondent is prevented by sufficient cause from appearing, his application, it is contended, must be within 30 days from the date of the decree. In the circumstances of the present case, I am inclined to take the view that this application is founded upon the ground that the notice of the appeal was not duly served. Regard being had to the rule3 and practice of the Court on the subject, it seems clear that the notice of the appeal pending before this Court which is issued ordinarily is merely a notice that the appeal will be heard on the date mentioned in the original notice or on any date thereafter of which a fresh notice will be given to him, by means of a cause list, that the case is to be heard on a particular date. It is well known that cases in this Court are never heard on the date for which they are notified to be heard in the original notice which is sent to the respondent. What is expected of the respondent in response to that notice is that he should come and engage an Advocate and file a vakalatnama so that it may be possible for this Court to give notice to that Advocate of the actual date of the hearing of the appeal. The cause list which is published is such a notice. If an appeal is heard without mentioning it in the daily cause list, it cannot but be held that that appeal has been heard in the absence of the respondent who was not duly served. Similarly, if in the cause list the name of the Advocate for the respondent is not mentioned, it must amount to having issued a notice with-out designating the person to whom the notice is issued. Such a notice is incapable of being served, much less of being duly served. What happened in this case was that Mr. K.K. Sinha''s name was not mentioned in the cause list. He, therefore, did not get any notice of the fact that the appeal in which he was engaged for the respondent was going to be heard on 1st September 1947. It is clear, therefore, that this appeal was heard ex parte as the notice of the appeal was not duly served on the respondent. The respondent in the present case, therefore, is entitled to show that he had no knowledge of the ex parte decree earlier than a date within SO days of the date on which he filed the application, and if he satisfies that his application is within that time it must he held that his application is not barred by Article 169. I am satisfied, as already statedj that he did not know that his appeal was heard ex parte and a decree was passed against him earlier than 15th March 1948. This application was filed on 23rd March 1948, and was, therefore, well within time.

In the result the application is allowed the ex parte decree passed by this Court is set aside, and the appeal will be set down for hearing in due course. There will be no order as to costs in this case.