Kaka Ram vs Prabha Shankar

Mir, J.—This letters patent Appeal has been directed against a judgment of the learned Single Judge passed in C.M.P.NO.44/82 on

21.7.1984. The petition was filed by the appellant before the learned Single Bench in terms of order 41 Rule 19 of the Code of Civil Procedure,

foradmission of the appeal which was dismissed in default on 24.2.1981. The petition was filed on 10.3.1982. Obviously the C.M.P. was much

belated. It was filed after expiry of more than a year, while as under Art. 168 of the Limitation Act the period prescribed for moving such an

application is 30 days from the date of dismissal.

Appellant's case is that he did not have the knowledge of the dismissal upto 6.3.1982. It, according to the appellant, was on 6.3.1982 that he

got the knowledge of the dismissal. Therefore, he pleads that Limitation of thirty days, as prescribed by Art. 168 of the Limitation Act, will run

from 6.3.1982.

Learned Single Bench has rejected this plea and on a plain construction of Art. 168 held that period of limitation would run from 24.2.1981,

when the matter was dismissed and not from 6.3.1982 when the appellant allegedly assumed knowledge of the dismissal. Learned Single Bench

has advanced following two reasons for dismissal of the application:

i) That Art. 168 of the Limitation Act provides for thirty days limitation from the date of dismissal and not from the date of knowledge; ii) That even

assuming he got knowledge on 6.3.1982, the petition has been filed on 10.3.1982. No explanation tendered for the delay from 6th to 10th March,

1982.

Mr. Kohli, appearing for the appellant, has strenuously tried to canvass that period of limitation, in a case where the order was passed without

notice to a party, would run from the date of knowledge to such party. In this behalf he has relied upon a judgment delivered by the Apex Court in

case titled Madanlal Vs. State of U.P and others, reported in AIR 1975 SC 2085. This case was arising our of the Forest Act. Their Lordships

held that the date of order in the case would mean knowledge of the order, where the order was passed without notice to the appellant. Reliance

was place by the Apex Court on AIR 1961 SC 1500. In this case the dispute was arising out of Land Acquisition Act, where an award was

published at the back of the interested persons. The apex court held that where the person applying for condonation of delay had no knowledge of

dismissal, the period of limitation would be counted from the date he assumes knowledge. Learned Single Bench has drawn a bold distinction

between the two judgments of the Supreme Court referred to above and the case before him. He has held that in the present case it will be the

date of dismissal from where the period of the limitation will have to be counted and he has held so on the strict construction of Art. 168 of the

Limitation Act. He has found this case to be governed by a judgment passed by the Supreme Court in Municipal Board Vs. State Transport,

reported in AIR 1965 SC 458. In thus case the express law laiddown by the Supreme Court is that whenever a case is listed before a court for a

particular date and on the fixed date, or any other date to which hearing may be adjourned, the appellant does not appear, the court may pass an

order of dismissal under subrule (2) of Rule 17 oforder41C.P,C.

5 We have heard the learned counsel for the panics at length.

Art. 168 of the Limitation Act is very clear and is capable of only one interpretation. The interpretation is that thirty days limitation will be reckoned

from the date of dismissal. It is distinguishable from Art. 164 where a defendant flies an application for setting aside a decree passed exparte. In

the latter case thirty days limitation will run either from the date of decree or when the appellant has the knowledge of the decree, where the

summons was not duly served. Both the provisions of law of limitation are reproduced as under:

Description Period of Time from

of application of limitation which the

period begins to run

168 For the admission Thirty days The date of

dismissal

164 By a defendant Thirty days The date of

for an order decree or where

to set aside a the summons

decree passed was not duly served

exparte when applicant has

knowledge of the decree

The distinction between the two provisions is clear. Art.168 deals with readmission of a dismissed appeal. Obviously it is the appellant who is

before the court. He must know all the developments in the proceedings of his case. Therefore, from the text of Art. 168 it becomes clear that the

legislature in its wisdom has presumed appellant's knowledge of dismissal. On the contrary Art. 164 deals with setting aside an exparte decree.

The decree is against a defendant, who is always on the receiving end. The legislature seems to be sufficiently aware that exigencies could arise

whets a decree may he passed without summons having been duly served upon the defendant It is because of this awareness that the legislature

leaves an option with the court to come to the rescue of such a defendant and reckon the period of limitation from the date the defendant assumes

knowledge of the decree.

The point which, on a plain reading of these two provisions of the limitation Act makes us to register, is that in a case of dismissal of an appeal,

the question of date of knowledge would not arise because the very scheme of the Code of Civil procedure presumes that the appellant has the

knowledge of his appeal before the Court, if we fall in agreement with the argument of Mr. Kohil, then we will not only be doing violence to the

provisions of the code but will also be laying premium on the waywardness and negligence of an erring appellant. On the universally acknowledged

maxim of actus curiae neminem gravabit the courts have to be guarded in ensuring that none of actions of the court should prejudice any body. It is

however not the same thing as saying that act of the court should lay premium on the negligence of a party. If the court treats the plaintiff and the

defendant equally, the defendant will seriously be prejudiced. Carefulness of the court cannot be construed to be its helplessness. In this backdrop

the submission of Mr. Kohli that a notice should have been issued to the appellant for listing of the appeal before the court is nothing but a wishful

expectation which is not countenanced by law.

We are unable to disseminate the line of distinction drawn by the legislature in their wise1 cm between Art. 168 and 164. A question would

arise as to why should not a petitioner or a plaintiff have the knowledge of dismissal. In the present case the civil second appeal came before the

court on 13.12.1979. Mr. B.Singh, appearing for the appellant on that day, was reported to be busy with the election. In his place Mr.

R.N.Bhalgotra appeared and sought an adjournment. The case was adjourned and came up before the Deputy Registrar on 14.2.1980 and

25.5.1980. The appeal was thereafter listed on 23.21981. on all these dates no body appeared for the appellant. On 24.2.198.1 the learned

Single Bench (Hon'ble AnandJ, as his lordships then was), passed the order which reads as under:

The case has been called repeatedly but no body has appeared on behalf of the appellant. No request has been made for adjournment either. The

case is accordingly dismissed in default of appearance and nonprosecution. The stay granted shall stand vacated.

It will be pertinent to mention here that the matter on the date of dismissal had come before the court after duly having been published in the

cause list. The publication of a lis in the cause list should construe sufficient notice for the parties. The appellant before the court was duly

represented by an Advocate, who did not appear. It is immaterial for us to go to the reasons which prevented the advocate or the party from

appearing before the court. A reference to the predismissal proceedings has simply been made to place on record that the Registry, as also the

court, had waited for the appellant.

In these circumstances, we find that lack of knowledge cannot be pleaded by the appellant. The period of limitation in the case will start from

date of decree and not from the date of knowledge of the order is pleaded. The writ court was correct in passing the impugned order. We uphold

the same. As such we find no merit in this appeal and dismiss the same. No order as to costs.