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Bachcha Vs. Kameshwar Prasad Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberF.A.F.O. No. 281 of 1958
Judge
Reported inAIR1963All311
ActsLimitation Act, 1908 - Schedule - Article 169
AppellantBachcha
RespondentKameshwar Prasad Singh and anr.
Appellant AdvocateBanwari Prasad, Adv.
Respondent AdvocateMansingh, Adv.
Excerpt:
.....- appeal - article 169 of limitation act,1908 - words 'notice of the appeal' means notice of day fixed for hearing and disposal of appeal. - - after the day has been fixed for hearing of the appeal then a notice under rule 14 of order 41 has to be affixed in the appellate court house and a like notice has to be sent by the appellate court to the court from which the appeal is preferred, and it has also to be served on the respondent or his pleader in the manner provided for service on the defendant himself, to appear and answer. - the language of article 169 was not very happy and its interpretation was not free from difficulty .it would be unfair to expect a party to attend the court on a date of which no due notice had been given and that the expression 'notice of appeal' should be..........and specifically directed that counsel for the parties be informed of the date so fixed. the date fixed was 1-12-1956. the counsel for the defendant-respondent, however, was not given any information of this date. on 1-12-1956 the appeal was adjoumed for want of time. of course, the defendant-respondent or his counsel were not present as they had no notice of this hearing. the case was again adjourned to 18-2-1957. the respondent and his counsel not having had any notice of this date either, naturally, were not present. the court recorded that the respondent was not present and heard the appeal ex parte, reserved judgment and fixed the 23rd february 1957 for pronouncing judgment. the defendant-respondent had also no notice of the date fixed for pronouncing the judgment i. e., the.....
Judgment:

S.C. Manchanda, J.

1. This is a defendant's appeal against the order of the District Judge dated the 24th August, 1957 refusing to rehear the appeal dismissed ex parte on the ground that the decree was passed on 23-2-1957 and the application for setting aside the ex parte decree having been filed on 1-5-1957 it was barred by time under the provisions of Article 169 of the Indian Limitation Act.

2. The plaintiff had filed an appeal which was put up for the first time before the District Judge on the 22nd January 1955, An order was passed, 'admit, let notice issue to the defendant-appellant'. In the notice which was issued in the usual form, as given in form No. 6 of the 1st schedule to the C. P. C., the date given was the 13th April 1955. The endorsement thereon was that the defendant-respondent should file the Vakalatnama on the 13th April 1955. The Vakalatnama by the respondent to that appeal was duly filed on 13th April 1955. On that date, however, no date was fixed for the hearing of the appeal and the order passed was that the defendant-respondent had filed his memo and a date will be fixed for fixing a date for hearing.

Thereafter, on the 25th October 1956, of which the defendant-respondent had no notice, the court fixed the hearing of the appeal for 1-12-1956 and specifically directed that counsel for the parties be informed of the date so fixed. The date fixed was 1-12-1956. The counsel for the defendant-respondent, however, was not given any information of this date. On 1-12-1956 the appeal was adjoumed for want of time. Of course, the defendant-respondent or his counsel were not present as they had no notice of this hearing. The case was again adjourned to 18-2-1957. The respondent and his counsel not having had any notice of this date either, naturally, were not present. The court recorded that the respondent was not present and heard the appeal ex parte, reserved judgment and fixed the 23rd February 1957 for pronouncing judgment. The defendant-respondent had also no notice of the date fixed for pronouncing the judgment i. e., the 23rd February, 1957. On the latter date an ex parte decree was passed by the District Judge allowing the appeal of the plaintiffs appellant.

3. On 1-5-1957, the defendant moved an application for rehearing the appeal decided ex parte under Order XLI Rule 21 C. P. C. This was accompanied by an affidavit of the defendant applicant wherein it was averred that neither he nor his counsel had any knowledge of the date fixed in the case, that it was only one day before that he had learnt in the village that the appeal of the plaintiff, appellant had been allowed ex parte and that the defendant applicant on inspecting the records of the appeal found that an ex parte decree had in fact been passed on 23-2-1957. Thereupon, an application for restoration was filed on 1-5-1957 within 30 days of the knowledge of the decree. A counter-affidavit was also filed stating that the defendants-applicants knew of the date fixed which was 18-2-1957, for the hearing of the appeal but no mention was made of any knowledge by them of the date fixed by the court for pronouncing the judgment. The restoration application, as already observed. was rejected by an order dated 24-8-1956 in these words: -

'Heard parties. Notice of appeal was served on the applicant. Decree was passed on 23-2-1957. The present application filed on 1-5-1957 is me barred under Article 169. Rejected. Costs on parties'.

Hence the appeal.

4. The question which falls for consideration is as to the meaning of the words which occur in Article 169 of the Indian Limitation Act: 'Where notice of the appeal was not duly served.' article 169 of the Indian Limitation Act uses more or less the same phraseology as Article 164. The latter provides the period of limitation for setting aside a decree passed ex parte in the absence of the defendant and the former i. e., Article 169 for the rehearing of an appeal heard ex parte. Articles 164 and 169 of the Limitation Act are as follows:-

Description of application.

Periodof limitation.

Timefrom which period begins to run.

164. By adefendant; from an order to set aside a decree pass-ed ex parte.

Thirtydays

The date of the decree or where thesummons was not duly served, when the applicant has knowledge of the decree.

169. For therehear-ing of an appeal heard ex parte.

Thirty days.

The dateof the decree in appeal or where notice of the appeal was not duly served,when the applicant has knowledge of the decree.

It will be noticed that the only difference in the words used are: 'where summons was not duly served in Article 164 and 'where notice of the appeal was not duly served' in Article 169.

5. In order to determine the meaning that should be attached to the words 'notice of the appeal was not duly served' in Article 169 in contradiction: to the words 'summons was not duly served' in Article 164 it may be useful to consider the scheme of the C. P. C. in respect of the procedure that has to be followed for suits and the procedure which has been laid down for the hearing of the appeals. Order V R. I provides for the issue of summons, when a suit has been duly instituted, to the defendant to appear and answer the claim on a day to be therein specified. If it is for final hearing then the summons is issued in form No r to Appendix B of the C. P. C., but if it is only a summons for settlement of issues then it is issued in form No. 2. Before deciding which form shall issue the trial court uses its discretion under rule 5 of Order V. Under Rule 6 of Order V the day for appearance of the defendant has to be fixed with reference to the current business of the Court and after considering the other factors mentioned therein. Under Order IX Rule I the defendant has to appear on the date fixed either in person or through his pleader, and the suit is to be heard on that day unless the hearing is adjourned to a future date fixed by the Court. If the plaintiff appears and the defendant does not appear when the suit is called on for hearing then under Order IX Rule 6 if it is proved that the summons was duly served the court may proceed ex parte or if not duly served, the court shall direct a second summons to be issued and under Sub-clause (c) of Rule 6 if it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the date fixed the court shall postpone the hearing and shall direct notice of such date to be given to the defendant. Thus Order 9 Rule 6 is the only provision under which a second summons or a second notice is ever issued to the defendant. The suit then proceeds and under Order XIV Rule I issues are settled. Order XV deals with the disposal of the suits on the first hearing. Order XVI provides for the summoning and attendance of witnesses. Order XVII deals with adjournment of suits and Rule 2 thereof provides that in every such case i. e., where the case is adjourned, the court shall fix a date for the further hearing of the suit, but even when that is done there is no provision for the issuing of any notice or summons of the date so fixed on adjournment. The hearing of the suit and the examination of witnesses takes place according to the provisions of Order XVIII. Then follows the judgment and decree under Order 20. Rule I of Order 20 provides that the court shall pronounce judgment in the open court either at once or on any further date of which due notice shall be given to the parties or their pleaders.

6. Now contrast this with Order XLI which deals with appeals and it will be noticed that the provisions are somewhat different. The memorandum of appeal is registered under Order XLI Rule 9 and if the appeal is not dismissed in limine under Rule II of Order XLI then under the provisions of Rule 12 Sub-clause (i) the court shall fix a day for hearing the appeal. It is important to note that what is fixed is a date for hearing the appeal, and not that the respondent is merely given a notice of the filing of the appeal. Herein lies the fundamental difference in the procedure laid down for suits and that for appeals. After the day has been fixed for hearing of the appeal then a notice under Rule 14 of Order 41 has to be affixed in the appellate court house and a like notice has to be sent by the appellate court to the court from which the appeal is preferred, and it has also to be served on the respondent or his pleader in the manner provided for service on the defendant himself, to appear and answer. Rule 14 specifically refers back to Rule 12 which fixes a date for hearing of the appeal. It will be observed that there is no parallel provision to Order XLI Rule 14 read with Rule 12 of Order XLI to be found in the Code for suits. The stress in Rule 12 is on the fixing of a day of hearing of the appeal and therefore in construing the words 'notice of the appeal' in Article 169 of the Limitation Act, the words themselves being somewhat ambiguous and not very happily worded, reference will have to be made to Order XLI Rule 12 of the C. P. C. 'A notice of appeal' is only given to the court, from whose decree the appeal is preferred, under Sub-rule (3) of Rule II of Order XLI and no notice of such appeal is however given to the respondent. The notice that is given to the respondent is under Rule 12 and it is not a 'notice of the appeal', but it is 'notice of the day fixed for hearing of the appeal'. Of these two notices, one that is issued to the court under Sub-rule (3) of Rule II of Order XLI therefore must not be confused with the notice that is issued to the respondent under Rule 12.

The words in Article 169 'where notice of the appeal was not duly served' when read along with Rules 12 and 14 of Order XLI to which they obviously intended to refer back, lend themselves to the only reasonable construction as meaning the dav fixed for hearing and disposal of the appeal and not merely notice to the respondent that an appeal had been filed. If any other meaning was to be given to these words it would lead to absurd results and it would place an undue burden, apart from the wastage of public time and money, on the parties or their counsel to an appeal to go to the appellate court at least once in every 30 days to ascertain whether any date had been fixed for the hearing of the appeal, otherwise they would run the risk of the appeal being decided ex parte against them, and what is worse their application for a rehearing of the appeal decided ex parte stood to be dismissed as being barred by limitation notwithstanding that they had never received notice of the day fixed for hearing of the appeal as required by the mandatory provisions of Order XLI Rules 12 and 14 of the C. P. C.

7. The scheme of the code for proceedings for appeals and suits being different it would follow that the rulings-Surjit Singh v. Capt. C. J. Torrie. AIR 1924 Lah 666, Ghanshi Balu Ram v. Misrilal Chunilal, AIR 1925 Born 444 and Sham Sundar v. Devi Ditta Mal, AIR 1932 Lah 539 relied upon by the learned counsel for the respondent which are all under Article 164 can have no bearing on the interpretation of the aforesaid material words of Article 169 which relate to the setting aside of an ex parte decree in appeal.

8. That these rulings can be of little or no assistance in determining the point which arises in this appeal is manifest from the fact that the last of the aforesaid decisions in Sham Sundar's case AIR 1932 Lah 539 was a decision given by Bhide, J., of the Lahore High Court who had occasion to deal with the same question both under Article 164 and under Article 169. In Shyam Sundar's case, AIR 1932 Lah 539 the learned Judge held that the words 'Where summons was not duly served' relate to the summons for the first hearing of the suit and not to any summons issued for a subsequent hearing; the intention is to give an extended period of limitation in cases where the defendant had no knowledge at all of the suit. But when he has knowledge of the suit the mere fact that he did not get the due notice of a subsequent hearing can hardly be considered to be a ground for extension of the period of limitation. Subsequently, the same learned Judge in the case of Nil Chand v. Himal Chand, AIR 1940 Lah 49 when dealing with Article 169 of the Indian Limitation Act and in particular the expression 'Notice of the appeal' observed:-

'The language of Article 169 was not very happy and its interpretation was not free from difficulty ............... It would be unfair to expect a party to attend the court on a date of which no due notice had been given and that the expression 'notice of appeal' should be taken to mean notice (actual or constructive) of the date on which the appeal is disposed of. Any other interpretation would lead to obvious injustice'.

An illustration was given,

'that if a court adjourned an appeal sine die for some reason and later took it up in the absence of a party who had no notice of the date of hearing and then decided it against him ex parte, that party cannot be expected to know the result of the appeal and in those circumstances it would be obviously unjust to dismiss the petition of such party for setting aside the ex parte order merely' on the ground that it was not presented within 30 days cf the decree. The mere fact that the party had been originally served with the notice of the appeal would seem to be wholly immaterial in such circumstances and cannot be considered to be 'any justification for the ex parte decision'.

I am in full agreement with these observations of Bhide, J.

9. For these reasons I would hold that the words 'notice of appeal' in Article 169 mean the notice to the respondent of the actual date of hearing fixed for the disposal of the appeal. The appellant or his counsel not having received any such notice of the date fixed for hearing of the appeal in spite of the specific order by the court that the counsel for the parties should be informed this case would, in my judgment, fall within the second part of Article 169 and the limitation of 30 days will run only from the date of the knowledge of the decree. The application, therefore, for the rehearing of the appeal heard ex parte was clearly within time and I hold accordingly,

10. In the result the order of the court below is set aside and the appeal is restored to the file of the District Judge at its original number with the direction that he will rehear the appeal and dispose it of in accordance with law on condition that costs of Rs. 50/- are paid to the plaintiff-respondent on or before the date of hearing fixed. The appeal has been held up unduly and it should now be proceeded with expeditiously.

11. Costs of this appeal will abide the event.


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