1. This is an application in revision by the defendant against an order passed in appeal by the learned Civil Judge of Faizabad refusing to set aside an ex parte decree.
2. The facts of the case are that on 18-2-1946 a suit was brought by the plaintiffs as against Gobardhan Ram and Bhagoti Ram. Gobardhan Ram is the present applicant and he was personally served with the notice of the suit. A written statement was Bled by him oa 15-4-1946. There was a preliminary issue involved in the case about the valuation of the suit and a commissioner was appointed for ascertaining the market-value.
Objections were filed to that report and in the first instance the learned Munsif ordered that that issue will be decided first before the final case is decided. But later on, on 3-2-1947 the learned Munsif was of opinion that the question of jurisdiction would not he a pure question of law but would also involve the decision on the merits of the suit itself and, therefore, he adjourned the decision of that issue and wanted to decide the, suit itself on merits and decide all the issues instead of taking them separately.
A date was fixed in the case for framing of the issues and ultimately 5-3-1947 was fixed, for final disposal of the case. In the meantime the defendant came to this Court in an application in revision against the order of the Munsif refusing to decide the issue of jurisdiction in the first instance. On account of that revision no further proceedings in the suit itself took place and the proceedings remained stayed as the file of the case was summoned by this Court
On 19-12-1950 this Court dismissed that application in revision and the case was sent back to the trial Court for decision on merits. The record of the case arrived in the Court of the Munsif of Faizabad on 22-4-1951. Five days later, on 27-4--1951, it was ordered that the suit should be put up for hearing on 21-5-1951 for disposal of an amendment application, which had been moved in the meantime on 22-2-1949 by the plaintiffs.
That was an application of a minor nature regarding the correction of the age of the defendant. The Court on that date ordered that the summons be issued to the counsel for the parties. It appears that the counsel for the defendant was probably ill and had not been going to Court, Therefore, the Court ordered that the parties themselves be informed. There is no dispute about the service of the summons on the plaintiff but the summons of the defendant was returned unserved with the remark that the defendant was not found at his residence.
On 21-5-1951 the Court ordered the plaintiffs to take steps to serve the defendant as he thought fit to fix 27-8-1951 for the final disposal. The plaintiffs thereupon applied for a substituted service on 23-5-1951 and it was prayed that the notice be served in a local paper 'Akhtar'. The application was allowed and the notice was served in that paper. , The defendant was, however, not present on 27-8-1951, the date fixed for hearing of the amendment application.
The application for amendment was allowed and the case was fixed for final hearing and recording ex parte evidence for 27-9-1951 and the evidence of the plaintiffs was recorded on that date. Finally the arguments were heard on 5-10-1951 and judg-ment was pronounced on 16-10-1951 and the suit was decreed ex, parte. After obtaining the decree, the plaintiffs applied for the execution of the same by attachment and delivery of possession which took place on 2-1-1952.
3. Thereafter the application, out of which thisapplication in revision, arises, was moved by thedefendant applicant on 10-1-1952 for setting asidethat ex parte decree. The application was based onthe ground that the defendant had been unaware of ,the proceedings in the case itself and he was neverserved with the notice of the date of hearing of thesuit. For the first time he came to know of this exparte decree by means of a telegram sent to himfrom Taada in the district of Faizabad to the defendant at Calcutta on 3-1-1952 intimating to him thatpossession had been taken by virtue of the ex partedecree. It was contended in the application thatsince the defendant had knowledge of the decree for .the first time on 3-1-1952 and he had not beensufficiently served with the summons of the suit theex parte decree should be set aside.
4. The application was contested by the plain-tiffs inter alia on the grounds that it was barred by limitation under Article 164, Limitation Act, that the defendant had been duly served with the notice, that, in any event, he knew or should have known of the proceedings and if he has not known it it was wilful default on his part, that it was no duty of the Court to inform the date of hearing of the suit, on the other hand it was the duty of the defendant to find out the date on which the suit was to be heard after the return of the case from this Court, and since the defendant had been negligent he was not entiled to the benefit of Order 9, Rule 13 & the ex parte decree should not be set aside.
5. Learned Munsif as well as the appellate Court have dismissed the application for restoration and aggrieved by that decision the defendant has come to this Court and he challenged the order of the Courts below on the ground that it is vitiated by illegality and material irregularity.
6. A preliminary objection has been taken as to the maintainability of this revision of the ground that the Court had jurisdiction to decide the case and whether it has decided rightly or wrongly this Court should not interfere. There can be no denying of the fact that so far as the jurisdiction of the Courts below is concerned they had perfect jurisdiction but the main question is whether that jurisdiction is tainted with material irregularity or illegality or not.
That will depend really On the facts of the case. If it was the duty of the Court to inform the parties of the date of hearing after the case had been sent back from the High Court and the Courts below had ignored this fact then they had certainly committed illegality and irregularity. If, on the other hand, it was not the duty of the Court to inform the parties then whether the decision was correct or incorrect it cannot be said that the Court had committed any illegality or material irregularity.
7. Learned counsel for the plaintiffs has argued that the defendant had been served with the summons of the first hearing of the case and, therefore, the case would not come under Article 164 if subsequently the summons had not been properly served and reliance was placed on the case of Sodhi Har-nam Singh v. Sodai Mohinder Singh , for the proposition that summons in Article 164 refer to summons issued in the first instance. In the above case it had been held as follows :
'The wording of Article 164 refers to summons issued in the first instance and not to notices issued to parties subsequently whether such notices are necessary under law or not.
Where the defendant has received the summons of the first hearing or where he has been directed to appear before the transferee Court on a certain date by the transferring Court, the limitation under Article 164, to set aside an ex parte decree starts from the date of the decree.'
Reliance was also placed on certain other Lahore decisions on this point, which are to the same effect.
8. I quite agree that in case there had been no interruption in the hearing of the suit and the suit would have proceeded in ordinary course the word 'summons' in Article 164 would refer to the summons issued in the first instance because thereafter he would make arrangements of the presence of a counsel and he would be deemed to be informed of the dates of the suit regularly through his counsel from the Court. But if there is an interrupt on in the hearing and there is stay on account of the order of the superior Court the case would assume a different character. The first hearing in that instance would be the first date on which the case again starts after the case is sent back from the High Court and the hearing is again resumed.
In the present state of affairs both in the Court below and in the High Court, no one can be sure as to when the date will be fixed in a case and if is too much to expect from a litigant that he would every day make enquiry about the date of the hearing. There is no rule which imposes this liability on the parties to enquire the date of hearing. It would be one of the first principles of natural justice that the Court should inform the date of hearing to the parties. This was held in the case of Durga Prasad v. Het Ram, AIR 1923 All 79(2XB), by a Bench of this Court in the following words :
'When a Court finds it necessary to adjourn a pending suit, it is part of the duty of the Court to see that the date fixed for the adjourned hearing is communicated to the parties concerned or to their legal representatives, or at any rate to such of them as are present or represented in Court when the adjournment takes place,'
I respectfully agree with the observations of the Bench. That was also a case under Order 9, Rule 13 for setting aside an ex parte decree and no notice of the adjourned date of hearing was given and that was taken as a sufficient cause for the defendant or not appearing and these observations were made in that connection.
9. Learned counsel for the opposite parties has argued that the Code nowhere lays it down as a duty of the Court. On the other hand he relies on the provisions of the Civil Court Rules which made provisions for maintaining the registers in which the) date on which the record is sent and the record is received are mentioned. There is also provision which provides that there shall also be a register for showing the dates on which the cases would be taken and it was argued that since provisions have been made in the Rule for these two registers it implies that the duty is on the parties to inspect these-registers occasionally and find out when the record has been received and find out the date of hearing.
I am unable to agree with this contention of the learned counsel for the opposite parties. These registers are not made for the purpose of enabling the parties to know by inspection. They are the registers maintained for the use of the Court itself. In my opinion, whenever a date is fixed for the hearing or a date is adjourned it is bounden duty of the Court to inform parties or their counsel or their representatives of such dates. If they are not so in-formed, the party not informed will not be bound by the proceedings.
10. Learned counsel for the applicant has urged that he had never received any notice of the date This substituted service, which was made, was made in a wholly unknown paper having very little circulation and the notice published therein was not for the hearing of the suit itself but was for the consideration of the amendment application.
On the other hand counsel for the oppositeparties has vehemently argued that if once the defendant is not found at his house and the substituted service is effected the service would be deemedto be sufficient and the party absenting cannot be allowed later on to say that the service was insufficient. He had placed particular reliance on Order 7,Rule 19 which by virtue of Order 8, Rule 12, has been made applicable in the case of the defendant also. This rules has been added by this Court and a similarrule is also added by the Chief Court. Order 7, Rule 19 reads as follows :
'Every plaint or original petition shall be accompanied by a proceeding giving an address written in English in block letters at which service of notice, summons or other process may be made on the plaintiff or petitioner. Plaintiff or petitioners subsequently added shall, immediately on being so added, file a proceeding of this nature.'
11. According to the contention of the learned counsel for the opposite parties, if once an address has been given and notice is served on that address that should be deemed to be sufficient and if the change of the address has not been communicated to the Court then in that event the defendant cannot be allowed to say that he is not aware of the proceedings because he had changed bis residence. That was no fault of the Court. In the present case if the service had been effected as provided by Order 7, Rule 22 then possibly this argument would have had force. Order 7, Rule 22 provides :
'Where a party is not found at the address given by him for service and no agent or adult male member of his family on whom a notice or process can be served, is present, a copy of the notice or process shall be affixed to the outer door of the house. If on the date fixed such party is not present another date shall be fixed and a copy of the notice, summons or other process shall be sent to the registered address by registered post, and such service shall be deemed to bo as effectual as if the notice or process had been personally served.'
12. Here when in the first instance the summons had been sent and the defendant was not found at his house, if the copy of the summons had been pasted at the house then it would have complied with the provisions of Order 7, Rule 22 or if the summons had been sent by registered post then there would have been a compliance with Order 7, Rule 22. In the present case the service was not effected by either of the modes mentioned in Order 7, Rule 22 but it was by a substituted service. True, substituted service is deemed to be a good service but for the purpose of Order 9, Rule 13 the Court can always go into the question whether the service had been effected or not. In a Full Bench decision of this Court in the case of Ram Bharose v. Ganga Singh : AIR1931All727 , this Court has held:
'Provision of Order 5, Rule, 20, Civil P. C., that substituted service is to be deemed as effectual as personal service only means that the Court hearing the suit may proceed with it as if the summons had been personally served on the defendant. But as at the time when the substituted service is ordered the proceedings are ex parte, it should be open to the defendant, when he appears later, to show that the order was not proper or that the method employed was not calculated to effect the purpose of informing the defendant of the institution of the suit.
Therefore, the question whether there has been due service or not is a question to be considered and decided by the Court when an application has been made for setting aside the ex parte decree, having regard to all the circumstances of the case; and if the conclusion be that the defendant was not duly served, then under Article 164, Limitation Act, the limitation of 30 days for filing the application would be computed from the date of the defendant's knowledge of the decree.'
Thus, the above Full Bench has clearly laid down that the substituted service does not in any way fetter the jurisdiction of the Court considering the application under Order 9, Rule 13 to go into the question whether there had been a service or not.
13. Learned counsel for the opposite parties has also relied on the proviso of Order 9, Rule 13 added by this Court which is Jo the following effect:
''Provided also that ho such decree shall be set aside merely on the ground of irregularity in the service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim.'
14. There is no evidence on the record that the defendant knew of the date of hearing. There is only uncontroverted testimony of the defendant that ho did not know the date fixed for the hearing. The only question is whether the defendant is guilty of wilful neglect or not. According to the admitted facts the case was received back from the High Court on 22-4-1951 and the date which was fixed for hearing ultimately was somewhere in August and finally disposed of on 5-10-1951.
The application was made about three months after this. There is no reasonable time in which it could be expected that the suit would be decided. If there is no reasonable time within which the suit may be expected to come for hearing and if the delay that has occurred is not an unreasonable one it cannot be said that during this period he should have made enquiries. In this particular case the counsel for the defendant had fallen ill and had ultimately died and it may be that the defendant had depended on his counsel and, therefore, he did not make enquiries. It cannot be said that in the present circumstances it has been established that there was wilful neglect or default in making enquiries about the date of hearing. If the defendant did not know the date of hearing or there was no wilful default the proviso to Order 9, Rule 13 will not apply.
15. Reliance by the opposite parties was also placed on the statement of the defendant to the effect that his Lucknow counsel had informed him that his case has been sent back to Faizabad and therefore, it was argued that he should have known then that some date would now be fixed. It is true that he came to know that the case had been sent back to Faizabad but this information was communicated when the order was passed by the High Court, but when the record was sent back by the High. Court to the Court below was not known and, in any event if the defendant had known that the record bad been sent, he cannot be presumed to know the date when the case would be listed for hearing. In the circumstances, on account of that letter of die counsel from the High Court no wilful neglect can be presumed.
16. Learned counsel for the opposite parties had also relied on certain decisions of the Calcutta High Court and Oudh Chief Court for the proposition that when the case is sent back to the trial Court it becomes the duty of the parties to find out the date of the receipt of the record and reliance was placed on the case of 'Jagdamba Prasad v. Ram Dularay, 136 Ind Cas 251 (Oudh) (D), wherein the learned single Judge had held :
''Where a case is remanded with a direction for retrial on condition that the plaintiff pays the costs of the previous suit within a certain number of days of the receipt of the order of remand by the trial Court the trial Court is not bound to serve the plaintiff with notice of the receipt of the record by it. It is the duty of the plaintiff to take necessary steps to find out when the record was received by the trial Court.'
17. The facts of the above case were different from the facts of the present case. In that case the plaintiff had filed a suit and later on he wanted to withdraw that suit. Permission was granted to withdraw the suit and also to institute a fresh suit on condition of his paying costs of that suit to tile defendant before he instituted the fresh suit. The second suit was filed without payment of those costs. The trial Court dismissed the suit on the ground that the suit was not maintainable as the costs had not been paid before the filing of the second suit.
The appellate Court set aside the order of thetrial Court and remanded the case to the trial Courtto decide the case on merits provided the plaintiffpaid the costs within a fortnight of the receipt ofthe record in the trial Court. That was a specialindulgence shown to the plaintiff. It appears thatthe parties had agreed to pay costs within thatperiod. There was no date to be fixed, notice ofwhich was to be given to the parties.
The Court in that case had to do nothing and inthat event, possibly the decision given by the OudhChief Court was correct. That order had made itclear that it was for the plaintiff to pay the costwithin a certain period from the date of the receiptof the record, and, therefore, it may be that in thatcase it became the duty of the plaintiff to find itout when the record was received by the trial Court.
But in a case where the record is received backand the case has to be heard again and a date ofhearing has to be fixed, in my opinion, it is not theduty of the parties to find out the date of hearingbut it is the duty of the Court to inform the date.If the learned single Judge meant by that sentencethat in every case it is the duty of the parties to findout the date of hearing, I respectfully beg to dis-agree.
18. The second case relied on by learnedcounsel for the opposite parties was Banshi Dewanv. Majaharuddin Talukdar : AIR1933Cal83 .That again was a case in which a retrial was ordered subject to payment of certain costs within twomonths from the arrival of the record in the trialCourt. Here again there was no duty cast uponthe Court to give notice of the record. In the pre-sent case a date of hearing had to be fixed by theCourt of which information was necessary.
19. The third case relied upon by the learnedcounsel for the opposite parties was Tara Chand v.Ram Chand, AIR 1935 Pesh 7 (F). In that case itwas held :
'The summons referred to in Article 164 is the summons for the first hearing of the case, and there is no essential difference between the case where a suit is adjourned owing to the absence of the presiding officer or some other cause and a case in which a suit remanded for retrial by the appellate Court.
The underlying principle in such cases is that wherethe existence of the suit has been brought to thenotice of the defendants by due service of a summons on them, it is their duty thereafter to inform themselves of what is being done in the case.'
In that case there had been no interruption of the hearing by a stay order and the suit was proceeding from day to day, and in that event it may be theduty of the parties to find out the date. But in case there is any interruption by a stay order, the Court, in my opinion, has again to give notice of the dateof hearing after the case again re-starts and that would also be in one sense be the first date of hearing.
20. In my opinion, the defendant did not know of the date of hearing and no summons had been-served about the date fixed for hearing and, in the circumstances, the Court below acted illegally and with material irregularity in not restoring the suit.
21. This revision has been pending in this Court for about last four years and it was argued on behalf of the opposite parties that the plaintiffs had been in possession of the property for all these years, the suit is of the year 1946, roughly about 11 years, old, and, therefore, it should not be restored. While I can see that there has been a considerable delay partly it has been on account of the fact that the case has come twice to the High Court which, has taken considerable time, but, in any, event, I think that while I allow the revision, set aside the ex parte decree I would further order that the possession by the plaintiffs which has been taken by virtue of the ex parte decree shall not be disturbed till a final decree is passed by the Munsif.
In case the plaintiffs' suit is again decreed there would be no question of any further possession. But in case the suit is dismissed it will be only then open to the applicant to obtain possession. The ex parte decree is set aside subject to the payment of cost of a sum of Rs. 50/- by the applicant to the opposite parties within a period of three months from today. In case the deposit is not made with-in this time the application in revision shall stand dismissed.
The cost shall be deposited within this time inthe Court below irrespective of the fact whetherthe record is received by the Court below or not.The case has been pending here for the last fouryears and there has been considerable delay. Thecase shall be sent back forthwith to the trial Courtand the trial Court shall also give preference to thissuit and decide it as expeditiously as possible.