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State of Uttar Pradesh Vs. Debi Prasad - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberMisc. Appln. No. 147 of 1962
Judge
Reported inAIR1964All248
ActsLimitation Act, 1908 - Schedule - Article 169
AppellantState of Uttar Pradesh
RespondentDebi Prasad
Appellant AdvocateH.N. Seth, Junior Standing Counsel
Respondent AdvocateB.C. Saxena, Adv.
DispositionApplication allowed
Excerpt:
limitation - notification - article 169 of limitation act, 1908 - non listing of name of counsel in cause list - amounts to no notice of hearing - period of limitation for setting aside the decree - 30 days from the date of the knowledge of decree. - - it is well known that cases in this court are not heard on the date for which a notice is originally issued and also not on the date on which they are originally notified to be heard......of the date of hearing given to the counsel representing the parties through the printed cause list.learned counsel for the appellant opposite party has not been able to show any authority in support of his argument that the expression 'notice of appeal' only means the original notice issued to the respondent fixing a date for the hearing of the appeal. it is well known that cases in this court are not heard on the date for which a notice is originally issued and also not on the date on which they are originally notified to be heard. what is expected of the respondent after service of initial notice is that he should come and engage some counsel to represent him and file a vakalatnama so that whenever the case comes for hearing before the high court, a notice may be given to the.....
Judgment:

Mithan Lal, J.

1. This is an application under Order 41 Rule 21, C. P. C. for re-admission of the appeal on the ground that as the name of the respondent's learned counsel had not been printed in the list, the respondent had no notice of hearing of the appeal and the appeal was decided ex parte. The application has been made within 30 days from the date of knowledge though it is some 216 days after the date of the order. Sri H. N. Seth, learned counsel for the state, has contended that under Article 169 of the Indian Limitation Act the application should have been made within 30 days of the date of the decree in appeal and where notice of the appeal was not duly served then within 30 days of the date of the knowledge.

2. I have heard learned counsel for the parties. The affidavit which has been filed in this case by the respondents' learned counsel goes to show that a vakalatnama of the learned counsel had been filed, but the name of the learned counsel representing the respondent had not been printed in the cause list when the case was listed for hearing. Evidently the learned counsel for the respondent could not have known of the date of hearing of the appeal. The only question is whether the expression 'notice of appeal' used in Article 169 means the notice of the original date of hearing fixed in the case or it will mean the notice of the date of hearing given to the counsel representing the parties through the printed cause list.

Learned counsel for the appellant opposite party has not been able to show any authority in support of his argument that the expression 'notice of appeal' only means the original notice issued to the respondent fixing a date for the hearing of the appeal. It is well known that cases in this Court are not heard on the date for which a notice is originally issued and also not on the date on which they are originally notified to be heard. What is expected of the respondent after service of initial notice is that he should come and engage some counsel to represent him and file a vakalatnama so that whenever the case comes for hearing before the High Court, a notice may be given to the counsel of the actual date of hearing.

According to the practice such a notice is given to the counsel through a printed cause list which is published on the previous evening for the cases to be heard on the next day. If in such a list a case is listed for hearing without mentioning the name of the counsel, it can only mean that the counsel, whose name was not mentioned in the list, had no notice of the hearing of the appeal and the appeal heard ex parte in his absence. In such circumstances the argument of the learned counsel for the applicant has to be accepted that the respondent was prevented from appearing in the case for sufficient cause and he is entitled to get the ex parts decree set aside and get the appeal re-admitted.

3. Learned Counsel for the respondent in support of his argument has relied upon the case of Nil Chand v.Ramal Chand, AIR 1940 Lah 49. In that case it was held by the learned Judge of that court that the expression 'notice of appeal' should be taken to mean notices (actual or constructive) of the date on which the appeal is disposed of. The case of Jainarain Singh v. Lachmi Prasad AIR 1949 Pat 502 is more to the point. In that case circumstances were similar to those appearing in the instant case. It was held by the learned Judge, with whose views I entirely agree, that if the name of the counsel for the respondent is not printed in the cause list it would amount to the hearing of a case without notice and that according to the practice prevailing in the High Court a cause list is a notice. I also agree with his views that the period of 30 days of limitation should be counted from the date of knowledge of the decree. Having regard to the facts and circumstances of the case and the fact that the name of the respondent's learned counsel was not printed in the cause list for the day on which the appeal was heard the respondent's learned counsel had no notice of hearing of the appeal. The present application for re-admission of the appeal having been filed within 30 days of the knowledge of the decree, must, therefore, be allowed.

4. The application is allowed. The order of this Court dated 12th July 1961 is set aside. The appeal is hereby re-admitted to its original number. It shall now be listed again for hearing in due course.


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