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Union of India (Uoi) Vs. Vishnu Agencies (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberAppeal No. 166 of 1984 and Suit No. 2166 of 1963
Judge
Reported inAIR1985Cal150
ActsLimitation Act, 1963 - Section 5 - Schedule - Article 123; ;Code of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantUnion of India (Uoi)
RespondentVishnu Agencies (P) Ltd.
DispositionAppeal dismissed
Cases ReferredSee Sitaram Ramcharan v. N.
Excerpt:
- .....(private) ltd. instituted the above suit being suit no. 2166 of 1963 in this court against the union of india claiming, inter alia, delivery of certain government promissory notes of the value of rs. 25,000/-; alternatively, a decree for rs. 25,000/-, a decree for further rs. 4,020/-, a decree for the amount of interest on the said government promissory notes after 31 st july 1953. further interest and costs.2. the union of india entered appearance in the suit and filed its written statement.3. the suit appeared in the peremptory list and on the 4th oct. 1983 a decree was passed in the suit ex parte against the union of india.4. on or about the 3rd april 1984 the union of india made an application before the trial court, inter alia, for the following orders :(a) the said ex parte.....
Judgment:

Dipak Kumar Sen, J.

1. Vishnu Agencies (Private) Ltd. instituted the above suit being Suit No. 2166 of 1963 in this Court against the Union of India claiming, inter alia, delivery of certain Government Promissory notes of the value of Rs. 25,000/-; alternatively, a decree for Rs. 25,000/-, a decree for further Rs. 4,020/-, a decree for the amount of interest on the said Government promissory notes after 31 st July 1953. further interest and costs.

2. The Union of India entered appearance in the suit and filed its written statement.

3. The suit appeared in the peremptory list and on the 4th Oct. 1983 a decree was passed in the suit ex parte against the Union of India.

4. On or about the 3rd April 1984 the Union of India made an application before the trial Court, inter alia, for the following orders :

(a) The said ex parte decree passed be set aside or recalled.

(b) An injunction restraining the plaintiff from taking any step for drawing up and completing the said decree.

(c) The suit be directed to appear in the list for hearing within a time to be fixed.

5. It was alleged in the petition, inter alia, that from a letter D/- 7-3-1984 from the plaintiff to the Iron & Steel Controller, the Union of India came to know for the first time of the said ex parte decree passed on the 4th Oct. 1983.

6. Thereafter on search of the records it was ascertained that the suit had appeared in the peremptory list for hearing on the 3rd Oct. 1983 and was part heard On the following day i.e. the 4th Oct. 1983 the said ex parte decree was passed. The name of the Advocate on record for the Union of India, it was alleged did not appear in the list on the 3rd or the 4th Oct. 1983 and as such the suit escaped the notice of the Advocate on record of and the Counsel engaged for the Union of India.

7. The absence of the name of the Advocate on record of the Union of India in the list on the relevant dates, it was contended constituted sufficient cause for non-appearance of the Union of India at the hearing of the suit.

8. It was further contended that there was no delay or laches on the part of the Union of India in making the application.

9. One of the directors of the plaintiff affirmed an affidavit on the 23rd April 1984 which was filed in opposition to the petition. It was contended in this affidavit inter alia that the application of the defendant was barred by limitation, that, in any event, the application was deleted and that no reason had been shown for the delay in making the application.

10. It was alleged that the suit had appeared in the peremptory list for hearing for a long time and in fact was part heard on the 27th Sept. 1983. The name of the defendant. Union of India, clearly appeared in the list and there being only one Advocate on record for the Union of India in the Original Side of this Court it was contended that the fact that the name of the Advocate on record for the Union of India did not appear in the list was immaterial.

11. The Deputy Iron and Steel Controller, Government of India, affirmed an affidavit on 4-5-1984 which was filed in reply to the said affidavit filed in opposition. It was reiterated in this affidavit that the application was not barred by limitation and that it was the usual practice of this Court to check the matters appearing in the peremptory list by the name of the Advocate on record.

12. By an order D/-11-5-1984, the application of the Union of India was dismissed on the ground that the same was barred by limitation.

13. The present appeal is by the Union of India from the said order D/- 11-5-1984.

14. At the hearing, learned Counsel for the Union of India reiterated that the Union of India for the first time came to know of the ex parte decree from the said letter dated 7th March 1984. On the 3rd and the 4th Oct. 1983 though the cause title of the suit was printed in the peremptory list the name of the Advocate on record of the Union of India was not printed. The absence of the name of the Advocate on record in the peremptory list on the relevant dates it was submitted was a sufficient, cause for non-appearance of the Union of India at the trial and as such the ex parte decree should be set aside.

15. Learned Counsel cited in this connection Kanail all Shaw v. Bhattu Shaw reported in : AIR1961Cal474 . Where it was noted that the practice on this Court was that the solicitors and their clerks took note of the suits from the peremptory list by checking the names of the attorneys concerned. The numbers of the suits or the names of the litigants were not checked. It was held in that case however that the name of the plaintiff having been wrongly printed in the peremptory list the plaintiff was misled. This was a sufficient cause within the meaning of Order 9, Rule 9 of the Civil P.C.

16. Learned Counsel did not dispute that on the day the application was filed before the trial court for setting aside the ex parte decree the same was barred by limitation under Article 123 of the Limitation Act 1963 but he submitted that there were sufficient materials on record on which the trial Court ought to have condoned the delay in making the application though no prayer for condonation of delay had been expressly made in the petition, but was orally made at the hearing.

17. In support of the above learned Counsel cited (a) Chittaranjan Das v. Sanhita Das, reported in (1981) 85 CWN 353. In this case an application for setting aside an ex parte decree had been made under Order 9. Rule 13, of the Civil P.C. but no application was made for condonation of delay under Section 6 of the Limitation Act, 1963 either in writing or orally. It was contended that the application had been made within time. The application was dismissed. A learned Judge of this Court held on revision that even if materials on record disclosed there was sufficient reason for condonation of delay but without a formal or an oral prayer made for condonation the application could not be sustained.

(b) Firm Kaura Mal Bishan Dass v. Firm Mathra Dass Atma Ram Ahmed'abad reported in . A learned Judge of the Punjab High Court observed in this case as follows :

'The language of Section 5 of the Limitation Act does not provide that an application in writing must be filed before relief under the said provision can be granted.'

(c) State of West Bengal v. Administrator Howrah Municipality reported in : [1972]2SCR874a . Here the Supreme Court reiterated the proposition laid down by it earlier in Ramlal v. Rewa Coalfields Ltd. reported in : [1962]2SCR762 as follows :

'it is clear that the words 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party.'

18. Learned Counsel for the plaintiff contended to the contrary and submitted that the matter had appeared in the list for hearing on a number of occasions and only when an affidavit was filed by the plaintiff in opposition to the petition of the Union of India the question of delay came up. Even then 'no condonation of delay was prayed for by the Union of India.

19. It appears from the order which is under appeal that at the hearing of the application for setting aside of the ex parte decree the learned Counsel for the defendant submitted that the delay in making the application should be condoned as there were sufficient grounds on record for such delay.

20. Under Article 123 of the Limitation Act, 1963 an application to set aside a decree passed ex parte should be made within 30 days from the date of the decree. Where the summons or notice is not duly served, the said period of 30 days will run from the date when the applicant had knowledge of the decree.

21. In the instant case it is not the case of the Union of India which had appeared and filed its written statement in the suit that no summons had been served on it. The decree having been passed on the 4th Oct. 1983, the application for setting aside the same should have been made by the 3rd Nov. 1983 to escape the mischief of limitation.

22. The application was admittedly made on the 3rd April 1984. The period of delay therefore is from the 3rd Nov. 1983 till the 3rd April 1984. Assuming, that the Union of India came to know of the decree for the first time on the 7th Mar. 1984 from the letter written by the plaintiff and the delay between the 3rd Nov. 1983 and the 7th Mar. 1984 is explained thereby, the Union of India still had to explain the delay between the 7th Mar. 1984 and the 3rd April 1984.

23. There is no material on record on which this delay is explained. Law is settled that a party has to satisfy the Court that he had sufficient cause for not making the application within the prescribed time, which means that the explanation has to cover the whole of the period of delay. See Sitaram Ramcharan v. N.-N. Nagrashana, reported in : (1960)ILLJ29SC .

24. The explanation offered by learned Counsel for the Union of India before us was that Article 123 was misconstrued and the Union of India waited about 30 days from the date of the knowledge of the decree before making the application. This is merely a submission from the Bar and is not supported by any material or fact or even any allegation on record on which such argument can be advanced.

25. It appears to us that the learned Judge rightly held in the order under appeal that the prayer for condonation of delay was a last minute effort on the part of the Union of India. The discretion exercised by the Trial Court in not allowing the application in our view cannot be held to be improper.

26. For the reasons above the appeal fails and is dismissed with costs.

27. Oral prayer for certificate for leave to appeal to Supreme Court was made by learned Counsel for the Union of India. This prayer is rejected.

28. Prayer for stay of operation of the order is also refused.

Suhas Chandra Sen, J.

29. I agree Appeal dismissed.


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