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Sohan Lal Vs. Poonam Chand - Court Judgment

LegalCrystal Citation
SubjectCommercial;Civil
CourtRajasthan High Court
Decided On
Case NumberMisc. First Appeal No. 15 of 1955
Judge
Reported inAIR1961Raj32
ActsLimitation Act, 1908 - Schedule - Article 164
AppellantSohan Lal
RespondentPoonam Chand
Appellant Advocate M.M. Vyas, Adv.
Respondent Advocate S.C. Bhandari, Adv.
DispositionAppeal allowed
Cases ReferredMemon Ahmed Abdulla v. Vora Gulam Hussain Nathubhai
Excerpt:
- - he said that the suit bad been brought about by collusion between nanuram and the plaintiff and the said sohanlal only got information of the decree on 10-8-1954 from one jaichandlal golechha of ratangarh. vora gulam hussain nathubhai, air 1954 sau 96. the observation is that where the applicant fails to prove that he had knowledge of the passing of the decree within 30 days prior to the date of his application, the application is bound to fail......164 of the indian limitation act is as follows: 'bya defendant from an order to set aside a decree passed ex parte.thirtydays.thedate of the decree or where the summons was not duly served, when the applicant hasknowledge of the decree.10. in the present case, the summons was not duly served and the period of limitation would start from the date when the applicant had knowledge of the decree. the expression 'knowledge of the decree' has been the subject of several decisions and it is now established that a mere information that some person has obtained some decree against the defendant is not sufficient. all that jaichandlal in the present case was told by bhanwarlal was that a decree of about rs. 6000/- had been passed against sohanlal and this information was conveyed by.....
Judgment:

K.L. Bapna, J.

1. This is an appeal against an order of the learned Civil Judge of Ratangarh dated 23rd of March, 1955 refusing to set aside the, ex parte decree.

2. Poonamchand of Ladnu instituted a suit against Sohanlal, his two minor sons Ratanlal and Champalal, under guardianship of Sohanlal of Doon-gargarh and one Nanuram. The suit was for recovery of Rs. 5,000/- for principal and Rs. 500/- for interest on the allegation that the defendants Nos. 1 to 3 obtained a loan of Bs. 5,000/- through their Munim, defendant No. 4 Nanuram and executed a Hundi payable at sight dated 24th of November, 1954 and the said Hundi was executed by defendant No. 4, their Munim on behalf of defendants Nos. 1 to 3.

It was then alleged that the amount of the Hundi was not paid when presented. The defendants Nos. 1 to 3 were stated to be liable on the Hundi, but it was also pleaded that in case defendants Nos. 1 to 3 may raise any objection as to the authority of defendant No. 4, the said defendant No. 4 was also made a defendant. On the summonses being issued, the report was that defendant No. 1 refused to accept it and the summons was affixed on the outer door of his dwelling on 13th of January, 1954, and further that defendant No. 4 concealed himself on getting information of the summons and his summons was also affixed on the outer door of his dwelling.

An order was passed for proceeding ex parts against the defendants. As two of the defendants were minors, the court directed that a guardian should foe appointed for them and the plaintiff should deposit Rs. 100/- as remuneration of guardian for the minor defendants. The plaintiff then filed an application, that the names of defendants Nos. 2 and 3, minors, be struck off. The plaintiff gave evidence in support of his case and the suit was decreed ex parte against Sohanlal and it was held that defendant No. 4 was, as a consequence, not liable. This ex parte decree was passed on 25-5-1954.

3. On 8-7-1954, Sohanlal filed an application for setting aside the ex parte decree on the allegations that he was at Calcutta on 13-1-1954 and had no information about the suit and his summons had not been duly served. He said that the suit bad been brought about by collusion between Nanuram and the plaintiff and the said Sohanlal only got information of the decree on 10-8-1954 from one Jaichandlal Golechha of Ratangarh. It was then said that the suit amount was a large amount and be wanted to contest the same and, therefore, the ex parte decree be set aside. Poonamchand controverted the facts.

It was found by the Court that the summons had not been duly served and the report that Sohanlal refused to accept the summons was not correct The Court, however, held that on the statement of Sohanlal, he received information of the decree on Jeth Vadi 5 or 6, samwat 2011 corresponding to 22nd or 23rd of May, 1954 and the application, which was presented on 8-7-1954 was barred by limitation under Article 164 of the Indian Limitation Act. The application for setting aside the ex parte decree was accordingly dismissed. Sohanlal has filed this appeal.

4. It is contended on behalf of the appellant that Sohanlal really got information of the decree on 10-6-1954 as mentioned in his affidavit along with the application and that under some mistake, he gave the Hindi date as Jeth Vadi 6, samwat 2011. The other reason in support of the appeal was said to be that Sohanlal had been informed by Shri Hari-kishan Purohit, a pleader of Bikaner that the civil Courts would reopen after the vacations On 8-7-1954 and that was the reason why he could not present the application on the 7th of July, 1954. There is an afidavit of Shri Harikishan that Sohanlal met him on 5-7-1954 at Doongargarh and on enquiry, Harikishan had told Sohanlal that the courts will reopen after the vacations on 8-7-1954.

5. Learned counsel foi the respondent urged that the information received from Harikishan was not sufficient lor grant of additional time since S, 5 of the Indian Limitation Act was not applicable to an application of this nature. So far as this ground is concerned, I do not think that Sohanlal could be given any benefit, because of this advice. In the first place, nothing is bona fide which is not done with due care and attention. This Harikishan was not the lawyer of Sohanlal and Harikishan being an Oath Commissioner and a pleader should have known when the Civil Courts would reopen, if he exercised due diligence.

6. On the merits, I am inclined to think that this appeal should be accepted. The suit was for a large amount and according to the very frame of the suit, the Hundi was executed by Nanuram and, not by Sohanlal. The plaintiff was not unaware of the fact that Sohanlal may dispute the authority of Nanuram to execute the Hundi or to obtain the money on behalf of Sohanlal. It was for that reason that Nanuram was also made a defendant.

In respect of the service of summons, the process-server Hanuman has deposed that he did not know Sohanlal from before and one person was pointed out by Shankarlal, Petition Writer of Batangarh to be Sohanlal at Doongargarh, but that the said person wag not the defendant present in court. Shankerlal, petition writer also said that he did not know Sohanlal from before and he had pointed out to a person in a house which was said to be of Sohanlal. Sohanlal himself came in the witness-box and said that the summonses were not served on him. The lower court rightly held that the report on the summons that Sohanlal refused to accept the summons was not correct,

7. As to limitation, Sohanlal said in his affidavit submitted along with the application, that he received information of the decree on 10-6-1954. In examination as a witness, he did not give the date of such information, but said that he got information of the decree from Jaichandlal in Jeth last. In cross-examination, he said that Jaichandlal had sent a letter which had not been produced and further that he got the information on Jeth Vadi 5 or 6, samwat 2011.

Jaichandlal said that he lived at Ratangarh and was acquainted with Sohanlal. Bhanwarlal, the Mukhtiar of the plaintiff informed him on Jeth Vadi 4, samwat 2011 that a decree had been passed against Sohanlal. He accordingly sent a letter to Sohanlal. Bhanwarlal has said that the decree was of about Rs. 6,000/-. In cross-examination, he stated that he had never entered into correspondence with Sohanlal prior to this and that he had given information by a post-card. No other person was then present.

8. The lower court has concluded on this evidence of Sohanlal and Jaichandlal that Sohanlal received information on Jeth Vadi 5th or 6th sam-wat 2011 corresponding to 22nd or 23rd of May, 1954. Sohanlal had made an application to the court on 6-1-1955 some days after he gave the statement that truly he got information of the decree on 10-6-1954 but had committed error in giving the Hindi date and that a similar mistake was committed by Jaichandlal. Leaving aside whether any mistake had been committed, the first point for consideration is whether the information which was obtained by Jaichandlal and which he passed on to Sohanlal was sufficient information from which the period of limitation should start.

9. Article 164 of the Indian Limitation Act is as follows:

'Bya defendant from an order to set aside a decree passed ex parte.

Thirtydays.

Thedate of the decree or where the summons was not duly served, when the applicant hasknowledge of the decree.

10. In the present case, the summons was not duly served and the period of limitation would start from the date when the applicant had knowledge of the decree. The expression 'knowledge of the decree' has been the subject of several decisions and it is now established that a mere information that some person has obtained some decree against the defendant is not sufficient. All that Jaichandlal in the present case was told by Bhanwarlal was that a decree of about Rs. 6000/- had been passed against Sohanlal and this information was conveyed by Jaichandlal to Sohanlal.

As is stated in the earlier portion of the judgment, the allegations in the plaint were that Nanu-ram, defendant No. 4, had got money on behalf of Sohanlal and his sons and had executed the Hundi. The transaction was not stated to be directly between Sohanlal on the one hand and Poonamchand on the other. The information that a decree had been passed against Sohanlal was quite insufficient for Sohanlal to understand who had obtained the decree, from what court the decree had been obtained and for what cause of action the decree had been obtained.

In Bapurao Sakharam v. Sadhu Bhivba, AIR 1923 Bom 193 the Bombay High Court held that the words of Article 164 mean something more than mere knowledge that a decree had been passed in some suit, in some court against the applicant. It means that the applicant must have knowledge not merely that a decree has been passed against him, but that a particular decree has been passed against him in a particular court in favour of a particular man for a particular sum. The same view has been taken in Kedarnath v. Kesrimul, AIR 1937 Pat 17 where it was observed that the knowledge of the decree mentioned in Article 164 is knowledge of the particular decree and not a knowledge of a decree.

A vague information about there being a decree is not sufficient for a period of limitation to run against the applicant. In the Patna case, the defendant had filed an application in execution proceedings for time. Even then, it was held following the Bombay case, AIR 1923 Bom 193 referred to abave, that the knowledge which can be attributed for the purposes of the period of limitation is the knowledge of the particular decree and that vague information about there being a decree is not sufficient for the period of limitation to run against the applicant.

The same view was taken in Chintaman Pawar v. Pannalal, AIR 1931 Nag 119. The relevant observation is that the law requires, in order to show that the applicant had knowledge of the decree that a particular decree had been passed against him in a particular court in favour of a particular person and for a particular sum, and not merely the knowledge that a decree had been passed by some court against him. In Muhammad Sahib v. Alag-appa Chettiar, AIR 1926 Mad 31, the court went so far as to say that unless the Court finds positively that the petitioner was aware of the decree at a time which was more than a month before the petition, it is not barred by limitation,

11. Learned counsel for the respondent relied on Charandas v. Firm Puranlal Gobind Pershad, AIR 1929 Lah. 235 and urged that the court had to find definitely that the applicant did not have the knowledge of the decree more than 30 days before the application was made and that the onus of the proof that the application was within time lay on the petitioner. In the case, there was no finding as to when the applicant had the knowledge and the case was remanded. There is no doubt that it is for the defendant petitioner to say when he got information of the decree.

Since, however, it is his information, he can only prove it by affidavit or statement on oath. In order that affidavit or statement should be disbelieved, there must be positive evidence on the other side. The burden of proof is initially, no doubt on the defendant, but how that burden is to be taken to be discharged or when it can be said to be discharged or when the contrary stands proved, is a matter which can only be decided on particular facts in each case.

In the present case, there is no evidence on behalf of the plaintiff that the defendant had received information of the particular decree of a particular court for a particular sum prior to thirty days of his application. But what is made use of is the statement of the defendant and Jaichandlal made in court. As stated earlier, those statements only show that Jaichandlal did inform Sohanlal that a decree about Rs. 6,000/- had been passed against him.

But this was quite insufficient information for the purpose of start of limitation. When the defendant said in his application that he received information from Jaichandlal about the decree, that was of course the first information about a certain decree being passed against the defendant. Though it related to the decree for which the application was made, the full facts may have been found by the defendant on the 10th of June, 1954 when he says he had information of the decree.

12. The other case relied upon by learned counsel for the respondent is Memon Ahmed Abdulla v. Vora Gulam Hussain Nathubhai, AIR 1954 Sau 96. The observation is that where the applicant fails to prove that he had knowledge of the passing of the decree within 30 days prior to the date of his application, the application is bound to fail.

13. The statement of law is unobjectionable. What facts would amount to a knowledge is a matter to be determined in each case. In the Saurashtra case the two courts had found that the defendant had knowledge of the decree beyond 30 days of his application and the court in its revisional jurisdiction, declined to interfere. The case is no authority on the question, what facts coming to the knowledge of the defendant would amount to a knowledge of the decree. As stated earlier, in the facts and circumstances of the case, I accept the version of the defendant that he got information of the decree entitling him to present the application on the 10th of June, 1954 as alleged by him and whatever information he may have received earlier is not sufficient for start of the limitation.

14. The appeal is accordingly allowed; theorder of the lower court dismissing the applicationto set aside the ex parte decree is set aside. Theapplication for setting aside the ex parte decree isallowed and the ex parte decree dated 25th ofMarch, 1954 is set aside. Much of the difficulty inthe case has been caused by the indifferent statement of the defendant himself. He will pay costsfor setting aside the ex parte decree to the respondent, which are fixed at Rs. 100/-. The costs ofthis Court will be easy.


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