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Food Corporation of India Vs. Baldev Kaur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 543 of 1976
Judge
Reported inAIR1981P& H113
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 - Order 29, Rule 1
AppellantFood Corporation of India
RespondentBaldev Kaur and ors.
Cases ReferredD. L. F. Housing and Construction Co. (P) Ltd. v. Sarup Singh
Excerpt:
.....by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - sarup singh, air 1971 sc 2324. indeed, section 115, code of civil procedure, as amended, provides that the high court shall not vary or reverse any order made in course of the suit or other made in course of the suit or other proceedings except in a case where if the order is allowed to stand, it would occasion a failure of justice or cause irreparable.....order1. the petitioner, food corporation of india, was proceeded against ex parte and an exparte decree was passed against it on april 9, 1973. the corporation applied for setting aside the ex parte decree on february 2, 1974. which was resisted by the respondents. it is not disputed that the corporation came to know about the ex parte decree on january 3, 1974 when summons for the execution of the above decree was received by it.2. the trial court framed the following three issues to decide the matter:(1) whether there are sufficient grounds for the setting aside of ex parte decree dated 9-4-1973? o. p. j. (2) whether the application has been filed by a competent person o. p. j (3) whether the application has been filed within limitation? 3. the trial court decided issue no. 1 in favour.....
Judgment:
ORDER

1. The petitioner, Food Corporation of India, was proceeded against ex parte and an exparte decree was passed against it on April 9, 1973. The corporation applied for setting aside the ex parte decree on February 2, 1974. which was resisted by the respondents. It is not disputed that the Corporation came to know about the ex parte decree on January 3, 1974 when Summons for the execution of the above decree was received by it.

2. The trial Court framed the following three issues to decide the matter:

(1) Whether there are sufficient grounds for the setting aside of ex parte decree dated 9-4-1973?

O. P. J.

(2) Whether the application has been filed by a competent person O. P. J

(3) Whether the application has been filed within limitation?

3. The trial Court decided issue No. 1 in favour of the Corporation but the remaining issues Nos. 2 and 3 were decided against it. In consequence of the same, the application for setting aside the ex parte decree was dismissed. An appeal was preferred by the Corporation which was also dismissed by Senior Subordinate Judge, and hence the present Revision petition.

4. A Preliminary objection has been raised by the learned counsel for the respondents that in the absence of any objection in regard to lack of jurisdiction of the two Courts below, the present Revision Petition is incompetent as this Court was not called upon to assess question of fact or law which may even have been decided wrongly. In this behalf, reference is made to D. L. F. Housing and Construction Co. (P) Ltd. v. Sarup Singh, AIR 1971 SC 2324. Indeed, Section 115, Code of Civil Procedure, as amended, provides that the High Court shall not vary or reverse any order made in course of the suit or other made in course of the suit or other proceedings except in a case where if the order is allowed to stand, it would occasion a failure of justice or cause irreparable injury to the party against whom it was made. No such contingency is however, forthcoming in the present case. Both the Courts below have recorded concurrent findings on the two crucial issues Nos. 2 and 3, by holding that the application for setting aside the ex parte decree was not filed by a competent person and eve otherwise the application was barred by limitation. There is no effective answer to these points on behalf of the petitioner.

5. As regards the question as to whether the District Manager of the Food Corporation was competent to conduct the case on behalf of the Corporation,the learned counsel for the Petitioner has referred to the provisions of Order XXIX, Rule 1, Code of Civil Procedure, which prescribe that I suits by or against a corporation any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. This provision nowhere empowers such an officer to conduct the case on behalf of the Corporation. In fact, only the limited power to sign and verify the pleadings had been conferred upon the officer. The Courts below were, therefore, quite correct in setting issue No 2 against the petitioner.

6. Coming to the question of limitation, the learned counsel has reiterated the same argument as was advanced before the Court below that the Corporation learned about the proceedings on January 3, 1974, when it received summons for execution of the decree. The Courts below have gone into this matter and have held that the Corporation did not lead any evidence whatsoever to prove this allegation. In the absence of cogent evidence to this effect, the mere oral statement of the officer in this behalf could not be accepted. The petitioner, therefore, fails on the question of limitation also and the relevant issues No. 3 has been correctly decided against it by the Courts below.

7. There being no material irregularity, nor an allegation about the lacks of jurisdiction vesting in the Courts below, the present Revision Petition is without merit and is consequently dismissed. In the circumstances of the case, however, there will be no order as to costs.

8. Revision dismissed.


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