Mahendralal Barooah vs Ramprasad

G. Mehrotra, J.—This is a petition u/s 115 of the CPC arising out of the following circumstances:

The applicant filed a suit against the opposite party for declaration of title and for khas possession on the 25th of August 1955. The first date for hearing of the suit was fixed on the 21st March 1956. Thereafter a number of adjournments were granted in the suit at the instance of both the parties.

On the last date of hearing that is 11th June, 1956 the Court granted adjournment with the following orders:

Parties ready but there is a talk of compromise on the site in presence of Court. Fix 12-7-56 for compromise failing which parties must be ready. Parties to deposit cost Rs. 5/- each for cost of conveyance.

After this there was no order in the suit for a number of years. On 7th August, 1958, the record was put up before the Court and the following order was passed:

Record put up today. Fix 16-8-58 for step.

After this, on 30th of August, 1958, the plaintiff was present but the defendant was absent. The suit was taken up and decreed ex parte. On 7th April, 1959, the defendant filed an application under Order 9, Rule 13 of the CPC for setting aside the ex parte decree on the ground that the ex parte decree was obtained be-hind his back collusively and that he came to know about the same only that day before filing of the application. The Munsif before whom the matter came up rejected the petition on the ground that it was barred by limitation. An appeal was filed against that order and the appellate Court set aside the decision of the Munsif and sent back the case for hearing to him. It is against this order that the present revision has been filed.

The main contention of the appellant is that as the application for setting aside an ex parte decree was filed under Order 9 Rule 13 of the Code of Civil Procedure, Article 164 of the Limitation Act was attracted the starting point of limitation under Article 164 is the date of the decree and the application should have been filed within thirty days from the date of the decree. It is admitted that the application had been filed beyond thirty days from the date of the decree.

The contention of the respondent-opposite party before the lower appellate Court was that as no fresh summons were issued to him after the compromise failed and the case was ordered to be put up for hearing, there was no due service of the summons on him and consequently the starting point of the limitation under Article 164 will be the date of knowledge and not the date of the decree. Article 164, column 3 provides, that the starting point of the limitation will be the date of the decree, or where the summons was not duly served when the applicant has knowledge of the decree The question, therefore, is when the summons can be said to be duly served within the meaning of column 3 of Article 164 of the Limitation Act. The lower appellate Court has observed that as the matter remained for two years without any order passed by the Court, the first summons issued in the suit lost all its utility and it will be taken as if no summon was duly served on the opposite party.

It is difficult to appreciate the reasoning of the lower appellate Court. The summons which is referred to and which should be duly served according to Article 164 is the summons in the suit itself Admittedly, on the date of the hearing the opposite party was present, and, therefore, it cannot be sale that there was no due service of the summons of the suit on the respondent-opposite party. The lower appellate Court seems to think that as the case remained pending for two years the first summons lost its utility; to quote the actual words of the lower appellate Court:

After that though it was put up, there was nothing in the record to show that any information was given to the lawyer of the defendant, not to speak of the defendant himself. It is highly suspicious that the plaintiff could be present on the date of hearing without any notice. When the suit was taken up after it was hushed up for long two years without assigning any reason, it was incumbent on the Court to inform the lawyers at least. When this was not done, it cannot but be held that the suit was heard without any notice to the defendant. That being so, the appellant is entitled in my opinion, to file an application under Order 9 Rule 13 of the C. P. C. within thirty days from the date of his knowledge." The finding of the lower appellate Court is that because the matter remained pending for two years and no fresh notice was issued on the defendant it must be held that the case was heard with out any notice to the defendant. As I have already stated, in my opinion, the Court below has not correctly interpreted the provisions of Article 164 of the Limitation Act. The defendant was present on the date of the hearing.

The summons was duly served on him If no summons as required under the law were issued to the defendant and if any fraud was committed by the plaintiff in obtaining the ex parte decree, the defendant may have a right to file a regular suit for declaration that the decree was obtained by fraud but this is no ground to extend the operation of limitation as provided for under Article 164 of the Limitation Act and to hold that the starting point of limitation will be the data of the knowledge and not the date of the decree.

Mr. Kalita, appearing for the opposite party, has contended that this is a case where the Court below has exercised its discretion and has held that there was sufficient cause for the defendant-opposite party not to appear on the date of hearing of the suit, and, the decretion exercised by the lower appellate Court should not be set aside by this Court u/s 115 of the Code of Civil Procedure.

This Court should not u/s 115 of the CPC interfere with the discretion exercised by the Court below, but the main ground on which the Court below has gone wrong is the question of limitation. If the application had been filed beyond limitation, it was not maintainable and if there was exercise of jurisdiction by the Court below which is not vested in it, Section 115 will be attracted. The question as to whether the defendant-opposite party was prevented by sufficient cause will not arise in this case at all.

In the result, therefore, I will allow this petition; but, in the circumstances of the case, the applicant will not get his costs throughout.