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Smt. Har Kaur Vs. Gurmit Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Misc. No. 4179-C of 1974 in Second Appeal No. 1560 of 1963
Judge
Reported inAIR1975P& H312
ActsLimitation Act, 1963 - Schedule - Article 123
AppellantSmt. Har Kaur
RespondentGurmit Singh and ors.
Appellant Advocate K.L. Sachdeva, Adv.
Respondent Advocate G.R. Majithia, Adv.
DispositionApplication allowed
Cases Referred and Bachcha v. Kameshwar Prasad Singh.
Excerpt:
.....from difficulty as i have remarked in air 1933 lah 882. it would be unfair to expect a party to attend the court on a date of which no due notice has been given and am inclined to think 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......date for the 19th october. 1963. as the respondents were not represented by any counsel, actual date notices were sent for the 28th may, 1973, which were served on all except respondent no. 4. the case subsequently came up beforem. l. verma, j. who on the 6th december. 1973, ordered that fresh actual date notices be issued to all the respondents for the 7th january. 1974. the appellant's learned counsel was directed to file correct addresses of the respondents particularly of harkewal singh. these notices were not served on any of the respondents. this fact not having been brought out at the hearing of the appeal, the appeal was decided on the 22nd march. 1974.4. the argument raised on behalf of the respondents is that notice of appeal having been once duly served, the starting point.....
Judgment:
ORDER

Man Mohan Singh Gujral, J.

1. This is an application under Order 41. Rule 21. read with Section 151 of the Civil Procedure Code whereby a prayer is made that the exparte order dated the 22nd March. 1974, in Regular Second Appeal No. 1560 of 1963 be set aside and the appeal be set down for hearing afresh. It may bestated at the outset that when the appeal was called for hearing nobody appeared on behalf of the respondents with the result that it was decided in their absence and was partly allowed.

2. Notice of this application was issued to the counsel for the opposite party. Mr. K.L. Sachdeva appearing on their behalf has strenuously opposed this application. The only ground on which the application is opposed is that it is time-barred. In order to appreciate the respective contentions of the parties in this respect, reference will have to be made to Articles 164 and 169 of the First Schedule to the Limitation Act. 1908, and Article 123 of the Schedule to the Limitation Act, 1963. For facility of reference the relevant provisions are set down below.

'Description of application

Period of limitation

Time from which period begins to run.

164.

By a defendant, for an order to set aside a decree passed

Thirty days

The date of the decree or, where the summons was not dulyserved, when the applicant

169.

For the re-hearing of an ap-peal beard ex parte.

Thirty days

The date of the decree to appeal or, where notice of the appealwas not duly served, when the applicant has knowledge of the

123.

To set aside a decree passed ex parte or to rehear an appealdecreed or beard ex parte-

Thirty days

The date of the decree or where the summons or notice was notduly served, when the applicant had knowledge of the decree.

Explanation. -For the purpose of this article, substituted ser-vice ander rule 20 of Order V of the Code of Civil Proce-dure, 1908 shall not be deem. ed to be due service.'

The application in this case was filed after more than three months from the date of the decree and would, therefore, be clearly time-barred under Article 123 if the starting point of limitation is the date of the decree. The case of the petitioners, however, is that they learnt about this decision only on the 11th July and then they filed this application on the 15th July, 1974, and as the time was to start running from the date of the knowledge of the decision the application was within limitation.

3. At this stage it would be necessary to notice a few facts regarding the service of notice regarding the appeal. The respondents were first served for a farzi date for the 19th October. 1963. As the respondents were not represented by any counsel, actual date notices were sent for the 28th May, 1973, which were served on all except respondent No. 4. The case subsequently came up beforeM. L. Verma, J. who on the 6th December. 1973, ordered that fresh actual date notices be issued to all the respondents for the 7th January. 1974. The appellant's learned counsel was directed to file correct addresses of the respondents particularly of Harkewal Singh. These notices were not served on any of the respondents. This fact not having been brought out at the hearing of the appeal, the appeal was decided on the 22nd March. 1974.

4. The argument raised on behalf of the respondents is that notice of appeal having been once duly served, the starting point of limitation under Art. 123 would be the date on which the first notice was served. Support for this argument is sought from Sodhi Harnam Singh v. Sodhi Mohinder Singh. 1954-56 Pun LR 50 = (AIR 1954 Punj 137) wherein while interpreting Article 164 of the Limitation Act it was held that the expression 'summons' referred to the summonsissued in the first instance and not to notices issued to parties subsequently whether such notices were necessary under the law or not. In this case a suit was transferred from the Court of the Subordinate Judge. Ferozepore to that of Subordinate Judge. Muktsar, under Section 24 of the Civil Procedure Code and the parties were directed to appear at Muktsar on the 18th March. 1950. On that date the defendant did not put in appearance and the case was heard ex parte. An application for setting aside the ex parte decree was moved after more than thirty days of the date of the decree and was dismissed on the ground that it was time-barred. In appeal a Single Judge of this Court came to the conclusion that the expression 'summons' did not only include notices issued to the parties subsequently but also notices sent by the Court to which a suit is transferred. As these notices had never been sent by the Subordinate Judge, Muktsar, to the parties it was held by the learned Single Judge that the application was in time. In Letters Patent Appeal the question of law was examined and on the basis the following observations of Bhide, J. in Sham Sundar Khushi Ram v. Devi Ditta Mal. AIR 1932 Lah 539, it was concluded that the wording of Article 164 refers to summons issued in the first instance and not to notices issued to parties subsequently whether such notices were necessary under law or not:--

'To me also this seems to be the correct interpretation. The intention apparently is to give an extended period of limitation in cases where the defendant has not knowledge at all of the suit. But when he has knowledge of the suit, the mere fact that he did not set the due notice of a subsequent hearing can hardly be considered to be a ground for extension of the period. The words 'the summons' are significant ...... If theintention was to allow an extended period in any case where a notice of the date of hearing is not duly served during the course of the suit, the wording would have been, I think, different. In this case the suit was no doubt transferred to another Court, but such a transfer has not the effect of starting the proceedings de novo. The suit is merely continued from the stage it had reached in the first Court. Following the interpretation accepted in the two rulings cited above. I hold that the learned Subordinate Judge had no jurisdiction to set aside the decree merely on the ground that the notice after the transfer was not duly served.'

The same view was followed in Dharam Pal v. Gian Singh. 1970-72 Pun LR 776 and Badri Narayan Sharma v. Panchayat Samiti. Dhariawad, AIR 1973 Raj 29, and it was held that in Article 123 theexpression 'the summons' refers to summons for the first hearing and if that has been duly served, the period will commence from the date of the decree, regardless of whether the notice for further hearing by the transferee Court was duly served or not.

While challenging the applicability of the ratio of the above decisions it was pointed out on behalf of the applicant that all those cases related to suits and were, therefore, not relevant so far as the question of limitation in relation to the hearing or disposal of an appeal was concerned. Continuing the argument it was urged that in ease of appeal the expression 'notice of appeal' implies notice of the date on which an appeal is disposed of and not farzi notice regarding filing of the appeal and for this contention support is sought from Thakar Nil Chand v. Thakar Hamal Chand. AIR 1940 Lah 49, and Bachcha v. Kameshwar Prasad Singh. AIR 1963 All 311. In the first of these cases in an appeal which was pending before the District Judge. Hoshiarpur, the counsel for the parties were directed to appear for argument in the case at Dharamsala on the 20th July, 1937. The petitioner's counsel reported that he had not been engaged for appearance at Dharamsala. Proceeding on the basis that the pleader was bound to appear the learned District Judge decided the appeal and also dismissed the application for setting aside the ex parte decree as it was filed after more than thirty days of the date of the decree. In appeal against this order, it was contended that the petitioner had notice of the appeal as he had been served with notice of the filing of the appeal and that the absence of notice of the adjourned hearing was of no consequence. While rejecting this contention it was held as follows:--

'As regards the first argument of the learned counsel for the respondents, it must be said that the language of Article 169 is not very happy and its interpretation is not free from difficulty as I have remarked in AIR 1933 Lah 882. It would be unfair to expect a party to attend the Court on a date of which no due notice has been given and am inclined to think 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. If, for instance, a Court adjourns an appeal sine die for some reason and later on takes it up in the absence of a party who had no notice of the date of hearing and then decides it against him that party cannot be expected to know the result of the appeal. It would be obviously unjust to dismiss the petitionof such party for setting aside the ex parte order merely on the around that it was not presented within 30 days. The mere fact that the party had been originally served with 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. AIR 1933 Lah 882 had reference to the special rules of this Court and was decided on its own facts.'

In Bachcha's case the same view was taken and it was ruled that the words 'notice of the appeal' in Article 169 imply the notice of the day fixed for 'hearing and disposal of the appeal and not merely notice to the respondent that an appeal has been filed. In this case the entire case law on the subject was examined and the observations of Bhide, J. in AIR 1932 Lah 539, were cited with approval.

5. Faced with the view taken in the above authorities, the respondents' learned counsel drew my attention to the difference in the language of Article 169 which was interpreted in the above two authorities and the language of Art. 123 which is applicable to the present case. In the Limitation Act of 1908 there were separate articles regarding suit and appeal. Whereas in Article 164 which related to suits the starting point of limitation was the date of knowledge where the summons was not duly served in the case of appeals the starting point of limitation was knowledge of the decree where notice of appeal was not duly served. In the Limitation Act. 1963, with which we are concerned. Arts. 164 and 169 have been consolidated into Article 123 with the result that so far as appeal is concerned, the starting point of limitation would be knowledge of decree when 'notice was not duly served.' The words 'of the appeal' are missing in Article 123. A question, therefore, arises whether this has made any difference to the interpretation to be placed on Article 123 and whether the observations which were made in relation to Art. 169 were still attracted or not.

6. Under Article 123 of the Limitation Act, 1963. in the case of appeal the time would start running from the date when the applicant had knowledge of the decree if notice was not duly served. The expression 'notice' occurring in this article would have relation to the date of hearing of the appeal and not merely to the date of filing of the appeal. I am of the considered view that the omission of the words 'of the appeal' from Art. 123 of the Limitation Act, 1963, is of no consequence and has only been made as the words 'of the appeal' occurring in Article 169 of the Limitation Act. 1908. were redundant. When read in the context ofthe words 'to rehear an appeal' the word 'notice' could only imply notice of the day fixed for hearing the appeal. In coming to this conclusion, I am influenced by the reasoning adopted in Bachcha's case, AIR 1963 All 311. In arriving at the conclusion that the words 'notice of appeal' should be taken to mean notice (actual or constructive) of the date on which an appeal is disposed of. regard was had to the scheme of the Civil Procedure Code in so far as it related to the procedure in respect of suits and the procedure provided for hearing of the appeals. The following observations in this respect may be read with advantage :--

'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 day 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 Civil P. C.'

In view of what has been stated above. I hold that under Article 123 of the Limitation Act, 1963. the expression 'service of notice' implies notice of the date on which the appeal is to be disposed of or heard and not merely notice regarding institution of the appeal. Taking this view of the matter. I find the application to be within time, it not being disputed that the notices issued in obedience to the orders of M.L. Verma. J. were not served on the respondents and the period of limitation in this case would, therefore, run from the date of knowledge of the decision of the appeal. The applicants' case is that they only came to know on the 11th July. 1974. and they filed the application within a few days. This contention of the applicants has not been contested. The application is consequently allowed and the order dated the 22nd March. 1974, is set aside and it isdirected that the appeal be set down for rehearing. The parties will bear their own costs in this application.


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