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Ajit Kumar Mitra Vs. Puri Municipality and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 424 of 1981
Judge
Reported in58(1984)CLT298; 1984(II)OLR870
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13; Limitation Act - Schedule - Article 123
AppellantAjit Kumar Mitra
RespondentPuri Municipality and anr.
Appellant AdvocateP.K. Misra and J.P. Misra
Respondent AdvocateA. Mohanty, Adv. O.P. 1
DispositionPetition allowed
Excerpt:
.....or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the decree was challenged as a void one having been obtained on suppression pf summons as well as being against a dead person. the order sheet does not show that the court on application of mind to the averments in the petition did not feel satisfied to act on the pleading of the petitioner despite the same having not been controverted by the opposite parties and wanted him to adduce evidence in support of the averments in the petition. the lower appellate court observed that since the trial court did not dispose of the proceeding on 4. 5. 1979 when it was posted for filing of rejoinder but adjourned it to 14. 8. 1980 for hearing, it has to be presumed that he was not satisfied..........court in paragraph-8 of its order has observed as follows:'evidently, it appears that the suit summons were not served on defendant no. 1 and it was also not served on defendant no. 2, who was reported to be dead. but it is curious to note that on 6. 1. 1972 orders have been passed by the learned munsif that the summons issued through court have been duly served en the defendant and he did not appear and was set ex parte. the learned munsif did not verify as to how many defendants were there in the suit. thus it can be unhesitatingly said that the ex parte decree passed on 17. 3. 1972 against the defendants is a nullity.'both the courts held and in my view, rightly that article 123 of the limitation act governs the case. the said article provides that to set aside a decree.....
Judgment:

D.P. Mohapatra, J.

1. The short question involved in this case is whether the application filed by the petitioner under Order 9, Rule 13, C. P. C., was rightly rejected by the Courts below as being barred by limitation.

Puri Municipality, the opposite party No. 1, filed Money Suit No. 82 of 1971 against the petitioner and one Ranjit Kumar Mitra who, as it appears now, was dead since 25.11.1945, for realisation of Rs. 501/- towards holding tax. In the said suit notice sent to Ranjit Kumar Mitra, was returned back with report that he is dead. Notice on the petitioner could not be served due to his absence and a copy of the notice was hung up on the premises. The suit was decreed ex parte on 17. 3. 1972.

On 8. 11. 1978 the petitioner filed a petition under Order 9, Rule 13, C. P. C. for setting aside the ex parte decree and for restoration of the suit alleging inter alia that he was not aware of the filing of the suit or its disposal till 6. 11.1978 when he came to know about it on inspection of records. He further alleged that while he is a resident of Mahendra Mitra Road (Hoogli), West Bengal, summons in the suit were sent to Kundhaibeha Sahi, Puri. The decree was challenged as a void one having been obtained on suppression pf summons as well as being against a dead person.

2. No objection was filed by the opposite party to the aforesaid application. The opposite party No. 2 was impleaded in the proceeding on his own application since he purchased the property in the execution case arising out of the suit. Both the Courts below rejected the petition under Order 9, Rule 13, C. P. C. on the ground of being barred by limitation.

3. The lower appellate Court in paragraph-8 of its order has observed as follows:

'Evidently, it appears that the suit summons were not served on defendant No. 1 and it was also not served on defendant No. 2, who was reported to be dead. But it is curious to note that on 6. 1. 1972 orders have been passed by the learned Munsif that the summons issued through Court have been duly served en the defendant and he did not appear and was set ex parte. The learned Munsif did not verify as to how many defendants were there in the suit. Thus it can be unhesitatingly said that the ex parte decree passed on 17. 3. 1972 against the defendants is a nullity.'

Both the Courts held and in my view, rightly that Article 123 of the Limitation Act governs the case. The said Article provides that to set aside a decree passed ex parte application is to be filed within thirty days from the date of the decree or where summons or notices were not duly served when the applicant had knowledge of the decree. Since in this case admittedly, notice/summons were not served on the petitioner, the second part of the provision applies. Hence, the date of knowledge of the petitioner about the ex parte decree passed in the suit is material for the purpose. The petitioner in his application under Order 9, Rule 13, C. P. C. expressly stated that he came to know of the ex parte decree after inspection of record on 6. 11.1978. On 31.10. 1978, on receiving an anonymous letter and after reaching Puri being confirmed about the fact, he filed the application for inspection of record. As already noted, the opposite parties did not choose to file any counter or objection to the application filed by the petitioner. As such, in accordance with the provisions of Order 8, Rule 5, C. P. C. it was open to the Court to pronounce judgment on the basis of the facts contained in the pleadings of the petitioner. However, it was at the discretion of the Court to require the petitioner to establish the statements contained in his application by evidence as per the proviso of Order 8, Rule 5, C. P. C. The order sheet does not show that the Court on application of mind to the averments in the petition did not feel satisfied to act on the pleading of the petitioner despite the same having not been controverted by the opposite parties and wanted him to adduce evidence in support of the averments in the petition. If such an order would have been passed, no objection could be taken against the impugned order on the ground that the Court did not properly exercise the discretion vested in him. The lower appellate Court observed that since the trial Court did not dispose of the proceeding on 4. 5. 1979 when it was posted for filing of rejoinder but adjourned it to 14. 8. 1980 for hearing, it has to be presumed that he was not satisfied on perusal of the pleadings of the petitioner and required him to establish the averments by evidence. This reasoning is erroneous. The mandate of the Code requiring the Court to exercise its discretion and in case be decides not to act upon the pleadings alone to call upon the petitioner to establish by evidence the contents in his pleadings is not an empty formality. It is intended to grant an opportunity to the petitioner to satisfy the Court about the correctness of the averments in the pleadings though they are not refuted by the other side. In the present case from the records it is clear that valuable property of the petitioner situated in Puri town has been sold admittedly without service of notice/summons on him. If the Court had any doubt about the date of knowledge of the petitioner as given in the petition under Order 9, Rule 13, C. P. C. in all fairness he should have given an opportunity to the petitioner to establish the same by adducing evidence. Since the pleadings were not controverted by the opposite parties, the petitioner had reasons to believe that the Court would accept the statements contained therein and proceed to judgment on the basis of the same.

The trial Court relied on the publication of the notice of the execution sale in the Oriya newspaper 'Swarajya' as per order dated 27. 7.1979 to hold that the petitioner must have been aware about the ex parte decree from that date and computed from that date the application is barred by limitation. The petitioner is a resident of Hoogly in West Bengal. It was not expected of him to keep in touch with local newspaper published in Oriya language. Hence, inference drawn by the trial Court about ascribing knowledge to the petitioner merely on the basis of daily 'Swarajya' was not just and proper.

4. From the aforesaid discussion it is clear that both the Courts below committed error of jurisdiction in rejecting the averments made in the application under Order 9, Rule 13, C. P. C. filed by the petitioner without giving him an opportunity to adduce evidence, in support of the same. The civil revision is therefore allowed and the orders of the Courts below rejecting the application under Order 9, Rule 13, C. P. C. are set aside. The case is remanded to the trial Court for fresh disposal after giving opportunity to the parties to adduce evidence within three months. Both parties are directed to appear before the trial Court on 23, 8.1984 to receive further directions. Both parties will bear their own costs of this proceeding.


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