1. This appeal under Clause 10 of the Letters Patent arises out of an application to set aside an 'ex parte' decree passed in favour of Harnam Singh appellant. The facts briefly are that Har-nam Singh brought a suit for the recovery of Rs. 8,500/- in the Court of the Senior Subordinate Judge, Ferozepore. The suit was transferred to the Court of Mr. Gambhir, Subordinate Judge and then the appellant Sodhi Harnam Singh applied under Section 24, Civil P. C. for the transfer of the suit to another Court. This application was allowed by the District Judge Who on 18-2-1950 ordered that the case be transferred to theCourt of Subordinate Judge, Fazilka at Muktsar. The 8ubordinate Judge at Fazilka used to visit Muktsar every month. Parties were also directed to appear before the Subordinate Judge, Muktsar on 18-3-1950.
On that day the case was taken up by the Subordinate Judge at Muktsar but the defendant did not appear. The case was then heard 'ex parte' and some evidence was taken on 10-4-1950. On the same day an 'ex parte' decree was passed in favour of the plaintiff. On 9-6-1950 an application was made by the defendant-judgment-debtor for setting aside the 'ex parte' decree under Order 9, Rule 13, Civil P. C. This application was dismissed by the trial Judge on the ground that it was barred by time under the provisions of Article 164, Limitation Act.
Against that order an appeal was brought to this Court and Kapur J. took the view that the application was not barred by time. He based this decision on the fact that the District Judge on 18-3-1950 had not informed the parties that they were to appear in the Court of the Subordinate Judge, Muktsar on 18-3-1950 and the absence of the defendant was therefore due to his ignorance of the date of hearing at Muktsar. He further look the view that the expression 'summons' used in Article 164 included notices issued to the parties subsequently and that its meaning was not confined to the first summons issued in the case.
2. Against this decision of Kapur J. the present appeal has been preferred.
3. There are two points for our decision. The first is a question of fact, namely whether the District Judge, while passing orders transferring, the case under Section 24, Civil P. C., informed the parties that they had to appear in the Court of Subordinate Judge at Muktsar on 18-3-1950. The second point is whether the application is barred by time under the provisions of Article 164.
4. On the question of fact the learned Judge appears to have taken the view that the order of the District Judge dated 18-2-1850 was not made on that date and the parties were not informed of it. I find it difficult to accept this view since the order says -- 'Parties are directed to appear before the Subordinate Judge, Muktsar, on 16-3-1950.' This is a categorical statement to the effect that parties had been directed and informed. This sentence was written separately on the reverse of the page on which the order transferring the case was typed and signed, but I have no doubt that this order was also made at the same time.
It was added subsequently because the District Judge in the original instance forgot to include it in the main order. Parties were present on that date and usually in such cases they ask the Court to fix a date for appearance in the lower Court, but whether they made a specific request to this effect or not, I have very little doubt that parties were told to appear at Muktsar on 18-3-1950. The correctness of the record was deposed to by the appellant Harnam Singh himself who stated that the parties were informed of the date on which they had to appear at Muktsar and at that time Dev Raj, the 'Mukhtar' of the defendant, was present. It is significant that the 'Mukhtar' did not choose to appear in the witness-box. The plaintiffs counsel appeared at Muktsar on the date fixed and he, therefore, knew of the date. I find it difficult to believe that the defendant was ignorant of this date. I, therefore, hold that parties were inform-ed of the date on which they had to appear in Court of Muktsar.
5. With regard to the question of limitation, Article 164, Limitation Act provides that an application to set aside an 'ex parte' decree must be made by the defendant within thirty days of the date of the decree or, where the summons was not duly served, the date when he came to know of the decree. The only question for determination in this case is what is the 'terminus a quo' for computing the period of limitation.
Kapur J. has taken the view that summons does not mean summons issued in the first instance and that it means also notices sent by the Court to which a suit is transferred. In this view of the matter Kapur J. held that the application was within time because the summons or the notices were never sent by the Subordinate Judge, Muktsar to the parties.
It is, however, contended by Mr. Shambu Lal Puri that summons in this case was served on the defendant in the original instance and therefore the application should have been made within thirty days of the date of the decree.
6. An application to set aside an 'ex parte' decree is made under Order 9, Rule 13, and in that Rule the expression used is 'summons was not duly served'. Courts have taken the view that this means the service of the first summons. There are three decisions of the Lahore High Court in which the word 'summons' in Article 164, Limitation Act was taken to mean summons in the first instance.
The first of these is 'Mt. Lal Devi v. Amar Nath', AIR 1920 Lah 261 (A) in which Chevis J. took the view that an application to set aside an 'ex parte' decree must be made within thirty days of the decree. In that case defendant had not received notice of an adjourned hearing and Chevis J. observed --
'The words in Article 164 'where the summons was not duly served' seem to me to refer to the summons given for the first hearing of the suit, and I agree with Mr. Rustomjee (see his book on Limitation, Edition 2, p. 546) that where, as in the present case, there has been due service of such summons, the mere fact that the defendant has not received notice of an adjourned hearing will not cause limitation to run from the date on which the defendant becomes aware of the decree having been passed.'
The second case is 'Surjit Singh v. C. J. Torrie', AIR 1924 Lah 666 (B). In this case Moti Sagar J., referred to the decision of Chevis J. cited above, and following it, held that the word 'summons' in Article 164 means summons in the first instance.
The third decision 'Sham Sundar Khushi Ram v. Devi Ditta Mal', AIR 1932 Lah 539 (C) is even more in point. In this case a suit originally pending in one Court was transferred to another Court. Notices were sent by the second Court and service of the notices was effected under Order 5, Rule 20, Civil P. C. The defendant failed toappear and an 'ex parte' decree was passed. The application to set aside this 'ex parte' decree wasmade more than thirty days after the date of the decree. Bhide J. held that the application was barred by time. He referred to the two cases cited above and observed --
'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 no knowledge at all of thesuit. 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. The words 'the summons' are significant.'
The learned Judge went on to say --
'If the intention 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.'
With great respect I agree with these observations of Bhide J.
7. I have already observed above that a similar expression in Order 9, Rule 13, Civil P. C., has been interpreted as meaning service of summons in the first instance. This was the view taken in 15 IC 549 (sic).
There is one further argument which can assist us in interpreting the wording of Article 164. It is no doubt true that in some cases extreme hardship may result if summons means summons in the first instance only, for one can imagine cases in which through no fault of the defendant an 'ex parte' decree is passed to his complete ignorance. There may even be a case in which in spite of vigilance on his part he may not know that an 'ex parte' decree has been passed, and in such cases it may be impossible for him to make an application under Order 9, Rule 13, Civil P. C., within thirty days of the passing of the decree.
The provisions of Section 5, Limitation Act do not apply to applications under Order 9, Rule 13 and so the Courts cannot grant any indulgence to a defendant who has suffered a hardship of this nature. This was realized by some of the High Courts in India and at least three of the High Courts, namely, Madras, Bombay and Nagpur have passed special rules under Section 122, Civil P. C. extending the provisions of Section 5, Limitation Act to applications made under Order 9, Rule 13, Civil P. C.
In the Nagpur High Court a proviso has been added to Rule 13 in the following terms:--
'Provided also that no such decree shall be set aside merely on the ground of irregularity in 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.'
This proviso clearly shows that the Nagpur High Court intended to limit the scope of Order 9, Rule 13, Civil P. C., in case of non-service of summons in the first instance. In case summons had been served hardship was to be avoided by extending the provisions of Section 5, Limitation Act to Article 164. A defendant could thus make an application more than thirty days after the passing of the 'ex parte' decree against him even if he had been served in the first instance provided he could show that there was good ground for the delay occasioned in coming to the Court.
8. There is only one case in which a slightly contrary view appears to have been taken. This was -- Raghubir Brothers v. Daulat Ham', AIR 1916 Lah. 132 (D). In that case a suit was under Section 10, Civil P. C. and no notice of the resumed hearing was given to the parties. An 'ex parte' decree was passed and the defendant then applied to have the decree set aside. Scott-Smith J. took the view that since no summons was sent to the defendant when the case was restarted he was not bound to make an application within thirty days of the 'ex parte' decree. Scott-Smith J. appears to have taken the view that when the suit was restarted it was a new suit.
9. It seems to me therefore 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 are necessary under law or not. This was the view taken fay three Judges of the Lahore High Court in the three cases mentioned above and this is the view which appears to have moved the Madras, Bombay and Nagpur High Courts to frame a rule extending the provisions of Section 5, Limitation Act to an application of this type.
It may be that there is a lacuna in the law but since the intention of the legislature as expressed in the statute is clear we must give effect to it. It is not the function of this Court to add to the law and we must confine ourselves to interpreting the law as it exists. Future hardship on parties can be avoided by adopting the course followed by some of the other High Courts. This appeal must be allowed and I would allow it with costs. The application to set aside the 'ex parte' decree is accordingly dismissed with costs throughout.
Bhandari, C. J.
10. I agree.