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Ram Shanker and ors. Vs. Lalta Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 27 of 1963
Judge
Reported inAIR1964All124
ActsLimitation Act, 1908 - Schedule - Article 168; Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 41, Rule 19
AppellantRam Shanker and ors.
RespondentLalta Prasad and anr.
Advocates:H.P. Varshni, Adv.
DispositionAppeal dismissed
Excerpt:
limitation - restoration of appeal - article 168 of limitation act, 1940 and section 151 and order 41 rule 19 of code of civil procedure, 1908 - application for restoration of appeal dismissed for default filed beyond limitation period - appeal dismissed on account of non appearance - such default can only be considered if application for restoration filed within limitation period - restoration application cannot be considered as beyond limitation period. - .....to the appellant's counsel sri ramadhar sharma. but neither he nor the appellants appeared on the date of hearing and the appeal was consequently dismissed for default on 25-5-1962. an application for restoration of the appeal was moved on 28-8-1962 and it was then contended that limitation for restoration of the appeal as prescribed under article 168 of the limitation act had expired and that the provisions of section 151 civil procedure code could not be availed of. these contentions were accepted by the civil judge and the application was dismissed.3. on facts the position is that intimation of the date fixed for the hearing of the appeal was given to the appellant's counsel and, as has been pointed out by the civil judge, under order iii, rule 3 civil procedure code a process served.....
Judgment:

S.D. Singh, J

1. This first appeal from order has been filed against an order passed by the Additional Civil Judge, Orai, by which an application under Section 151 Civil Procedure Code for restoration of an appeal was dismissed.

2. What happened was that a date was fixed for the hearing of the appeal and information of the same was given to the appellant's counsel Sri Ramadhar Sharma. But neither he nor the appellants appeared on the date of hearing and the appeal was consequently dismissed for default on 25-5-1962. An application for restoration of the appeal was moved on 28-8-1962 and it was then contended that limitation for restoration of the appeal as prescribed under Article 168 of the Limitation Act had expired and that the provisions of Section 151 Civil Procedure Code could not be availed of. These contentions were accepted by the Civil Judge and the application was dismissed.

3. On facts the position is that intimation of the date fixed for the hearing of the appeal was given to the appellant's counsel and, as has been pointed out by the Civil Judge, under Order III, Rule 3 Civil Procedure Code a process served on a recognised agent of the party would be deemed to be sufficient service on the party itself. It would, therefore, be believed that the appellants had information of the date fixed for the hearing of the appeal and were not present in spite of it.

4. The contention on behalf of the appellants was that their counsel forgot about the date and did not inform the appellants or his own clerk of the date which was fixed for the hearing of the appeal and an affidavit to this effect was filed by the counsel Sri Ramdhar Sharma. This might have been regarded as a sufficient cause for the non-appearance of the appellants if the application for the restoration of the appeal had been filed within the period of 30 days prescribed under Article 168 of the Limitation Act. The application was, however, moved almost three months after the dismissal of the appeal.

5. Reliance was placed by the learned counsel for the appellants on several decided cases in support of his contention that the application which was filed by the appellants was not one to which the limitation prescribed under Article 168 could apply, but the cases relied upon either do not relate to the case of an application for the restoration of an appeal or are cases in which the appellant was not informed of the date for the hearing of the appeal at all.

6. Muhammad Ali v. Governor-General-in-Council AIR 1949 All 36 is a case in which a date was fixed for the hearing of the appeal and notices were sent by registered post, but they had not been; received back and the appellate Court, without, caring to see whether there had been proper service; dismissed the appeal for default. There was nothing to indicate that the appellant or his counsel, was informed of the date of hearing of the appeal; and it was under these circumstances that it was held that the limitation prescribed under Article' 168 of the Limitation Act did not apply.

7. Sonubai Baburao v. Shivajirao Krishnarao AIR 1921 Bom 20 is a case in which the appellant was a minor and was represented by a next friend, who was found to have turned insane during the pendency of the appeal. The appellant's counsel also died while the appeal was still pending. It does not appear from the facts as given in the judgment as to whether intimation of the date fixed for the hearing of the appeal was given to any one on behalf of the appellant. But in any case these were the circumstances in which it was held that in spite of the limitation prescribed under Article 168 aforesaid, the appellant could apply-for the restoration of the appeal within a month of his attaining majority.

8. In Ata Muhammad v. Shankar Das AIR 1924 Lah 279 no date was fixed for the hearingof the appeal and no notice was given to the parties of any date on which the appeal was to be heard, and it was therefore held in these circumstances that in spite of the limitation prescribed under Article 168 an application could be entertained under Section 151 Civil Procedure Code.

9. The decision in Lalta Prasad v. Ram Kaian ILR 34 All 426 does not relate to the case of an appeal at all. In that case a suit was dismissed for default as both parties were absent at the time the suit was called out for hearing, and the circumstances in which they were absent were also peculiar. When the case was called out at 10.30 A. M. the Court was informed that the counsel on either side being members of the local Municipal Board were busy attending the meeting of the same and a request was made on that account for the case being taken up later in the day. The Court directed that the case would be taken up at 12 noon, but the counsel who had made the request to the Court misunderstood the direction of the Court and thought that the case had been directed to be taken up at 2 P. M. He gave that very information to the other counsel appearing in the case, with the result that neither side could appear in Court when the case was called up at 12 noon. The Presiding Officer waited for 20 Minutes and then dismissed the suit at 12.20 P. M. It was under these circumstances that it was held that there was sufficient cause for the non-appearance of the plaintiff. This decision has nothing to do with the application of Section 151 Civil Procedure Code or Article 168 of the Limitation Act.

10. Even the decision in Ganesh Prasad v. Bhagelu Ram : AIR1925All773 is based on different facts. It relates to anapplication which was moved for the restoration of an application for the restoration of the suit. Itwas held that since Order IX Civil Procedure Code does not, apply to such applications, an application of that nature could be entertained under Section 151 Civil Procedure Code.

11. In this particular case, as has been said above, intimation of the date fixed was given to the appellant through his counsel. There is a specific Article 168 of the Limitation Act prescribing limitation for applications for restoration of an appeal which is dismissed for default. This is not a case in which the appeal was dismissed for default without intimation of the date fixed for itshearing. In the face of Article 168 of the Limitation Act, it was not open to the Civil Judge to extend the period of limitation for the filing of such an application and entertain it under Section 151 Civil Procedure Code.

12. The appeal has thus no force and is consequently dismissed.


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