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Express Newspapers Ltd. Vs. Girdharilall Jhajharia and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberSuit No. 523 of 1963
Judge
Reported inAIR1984Cal389
ActsCode of Civil Procedure (CPC) , 1908 - Order 22, Rules 3, 4 and 9; ;Limitation Act, 1963 - Schedule - Article 123
AppellantExpress Newspapers Ltd.
RespondentGirdharilall Jhajharia and ors.
DispositionApplication dismissed
Excerpt:
- .....copies of the original master's summons along with the copy of grounds were served on one arun kumar jhajharia, respondent 1(c) at premises no. 12, sunny park, calcutta, which is admittedly the residential house of the defendants. according to this affidavit, arun kumar one of the sons of the deceased accepted the service for self and on behalf of the other heirs of nand kishore jhajharia. after that application for substitution was taken out m/s. mukherjee & biswas appeared in that application on 9-12-1978,20-12-1978 arid 9-1-1979 on behalf of the present petitioners and by consent of the parties the matter was adjourned from time to time. ultimately the order for substitution was made on 9-1-1979. the plaintiffs advocate on record, m/s. p. d. himatsingka & co. immediately by their.....
Judgment:
ORDER

Pratibha Bonnerjea, J.

1. This suit was instituted by the plaintiff against one Nand Kishore Jhajharia in 1963 for recovery of money lent and advanced. It is an admitted position that Girdharilall Jhajharia, the eldest son of Nand Kishore since deceased, was looking after the suit on behalf of his father during his lifetime, Nand Kishore Jhajharia died on 20-10-1975 but the information of his death was not given to the plaintiff until 19-9-1978 when the suit was called on for the hearing on that day. M/s. Mukherjee & Biswas was the advocate on record of Nand Kishore Jhajharia. On 13-11-1978 the plaintiff applied for substitution of the heirs of Nand Kishore Jhajharia with a prayer for setting aside the abatement and condoning the delay. It appears from the joint affidavit of service of Bishambhar Kundu and Chittaranjan Das affirmed on 17-11-1978, that copies of the original Master's Summons along with the copy of grounds were served on one Arun Kumar Jhajharia, respondent 1(c) at premises No. 12, Sunny Park, Calcutta, which is admittedly the residential house of the defendants. According to this affidavit, Arun Kumar one of the sons of the deceased accepted the service for self and on behalf of the other heirs of Nand Kishore Jhajharia. After that application for substitution was taken out M/s. Mukherjee & Biswas appeared in that application on 9-12-1978,20-12-1978 arid 9-1-1979 on behalf of the present petitioners and by consent of the parties the matter was adjourned from time to time. Ultimately the order for substitution was made on 9-1-1979. The plaintiffs advocate on record, M/s. P. D. Himatsingka & Co. immediately by their letter dated 10-1-1979 addressed to M/s. Mukherjee & Biswas informed them about the said order. Then by another letter dated 27-1-1979 M/s. P. D. Himatsingka & Co. sent the copy of the amended plaint to M/s. Mukherjee & Biswas. M/s. Mukherjee & Biswas never alleged that they had no authority to appear on behalf of the petitioners in that application or to accept the amended plaint. Thereafter an ex parte decree was passed in the suit on 23rd April, 1983. It is alleged by the petitioners that on or about 29th Mar. 1983 the petitioner Arun Kumar Jhajharia received a letter from M/s. P. D. Himatsingka & Co. from which he came to know that an ex parte decree had been passed and he immediately communicated the said news to the other heirs of Nand Kishore Jhajharia, deceased. This petition is made by Arun Kumar Jhajharia for self and on behalf of the other heirs of Nand Kishore Jhajharia, but the petition has been verified by Arun Kumar Jhajharia alone. Prior to the taking out of this application, the present advocate on record of the petitioner M/s. L. P. Agarwalla & Co. by a letter dt. 27th April 1983 wrote to M/s. Mukherjee & Biswas enquiring from them whether the present petitioners had given any warrant of attorney or vakalatnama in their favour. The letter is as follows : --

'Please note that we have received instructions to appear on behalf of our clients Mr. Girdharilal Jhajharia, Ashok Kumar Jhajharia, Arun Kumar Jhajharia, Anil Kumar Jhajharia, Krishna Gopal Jhajharia, Smt. Savitri Devi Jhajharia, Smt. Prema Modi and Smt. Uma Parasramka in the above matter. Kindly let us know whether the persons named hereinabove has given any warrant of attorney or vakalatnama to you in the above matter. If so, please confirm.'

In the petition there is no averment as to whether M/s. L. P. Agarwalla & Co. had received from M/s. Mukherjee & Biswasany reply to this letter or not. The petitioner is keeping silent over this matter. In para 10 of the petition it has been alleged as follows : --

'In this connection I annex hereto a copy of a letter dt. 27th April 1983 addressed by Messrs. L. P. Agarwalla & Co. to Messrs. Mukherjee & Biswas recording the fact that none of your petitioners ever executed any power of attorney and/or vakalatnama to represent and/or act for any of your petitioners in the above suit.'

The averment in para 10 of the petition is absolutely contrary to the contents of the letter dt. 27th April 1983 set out above. No such recording was made in that letter. Within two days after this letter of 27th April, 1983 the petitioner took out the present application and noted the same as 'made today' on 29th April, 1983. In the petition it has not been alleged that the records of this suit were searched by the petitioners after the receipt of M/s. P. D. Himatsingka's letter dt. 29th Mar., 1983. It is also the petitioner's case that they had never given any warrant of attorney or vakalatnama to M/s. Mukherjee & Biswas; under those circumstances, it is very surprising how M/s. L. P. Agarwalla & Co. could write to M/s. Mukherjee & Biswas enquiring whether any power of attorney was given by the petitioners in their favour or not. It appears that the petitioners had knowledge that on three occasions M/s. Mukherjee & Biswas had appeared on their behalf in the application for substitution, otherwise they could not have instructed M/s. L. P. Agarwalla & Co. to write such a letter. If the petitioner's counsel's submission that M/s. Mukherjee & Biswas appeared without any authority is correct, then M/s. L. P. Agarwalla would have recorded that M/s. Mukherjee & Biswas had acted without any authority. No such accusation could be found in M/s. L. P. Agarwalla's letter dated 27-4-83. It is also difficult to believe that a solicitor's firm like M/s. Mukherjee & Biswas will represent a party in a Court proceeding without being authorised by that party to that effect.

2. In para 8 of the petition the petitioners have made a grievance that nowrit of summons in respect of the above suit was served upon the substituted defendants. This ground has no substance because law does not require that substituted defendant should be served with fresh writ of summons.

3. The next ground taken by the petitioners is as follows : --

''Although an order of substitution had been made in the suit substituting the defendants above named in place and stead of Nand Kishore Jhajharia, since deceased, copy of the Master's Summons or grounds in support of such Master Summons was not served on each of the substituted defendants'.

Now, this Arun Kumar Jhajharia the petitioner being the defendant No. 1(c) had accepted the Master's Summons for self and on behalf of other substituted defendants as will appear from the affidavit of service filed in the application for substitution. There is no denial of this fact in the present petition. Law does not require that each defendant has to be served separately. A person authorised to accept notice or summons can accept the same on behalf of the defendants who has given him authority to do so. There is no averment in the petition that Arun Kumar had received the summons without any authority. In the affidavit in opposition in this matter, the plaintiff has clearly stated in sub-para (f) of para 3, that Arun Kumar Jhajharia had accepted the copy of the Master's Summons and grounds for self and on behalf of the other petitioners. In sub-para (h) of the same para of the affidavit in opposition it has been clearly stated by the plaintifff that M/s. Mukherjee & Biswas was authorised by the petitioners to appear for them in the petition for substitution and they duly appeared on three occasions. No affidavit in reply has been filed by the petitioners denying any of the allegations in the affidavit in opposition. In that circumstances all the facts alleged in the affidavit in opposition should be deemed to have been admitted and accepted by the petitioners. On the facts and circumstances of this case I am convinced that the Master's Summons along with the grounds for substitution were duly received by all thepetitioners through Arun Kumar. Arun Kumar has not denied that he had received the Master's Summons along with the grounds for self and the other defendants. In that view of the matter, I hold that all the substituted defendants were duly served with summons and grounds.

4. Mr. Chatterjee appearing in support of the application has made a third point that the order for substitution has to be served on the substituted heirs. For the sake of argument, assuming that the law requires service of order, I find that the plaintiff had already complied with that requirement by writing to M/s. Mukherjee & Biswas intimating them about the passing of the order and sending a copy of the amended plaint. M/s. Mukherjee & Biswas accepted the same without any objection. The petitioner has not filed any supporting affidavit by M/s. Mukherjee & Biswas recording that they had appeared in the application for substitution by mistake on three occasion without any authority to do so. M/s. Mukherjee & Biswas did not intimate M/s. P. D. Himatsingka & Co. even after receipt of two letters that they had no authority to appear or to accept those letters and the amended plaint on behalf of the petitioner. The complete silence on the part of M/s. Mukherjee & Biswas supports the plaintiffs' case that they had the authority and that was why they had appeared in Court on behalf of the petitioners and accepted the letter of M/s. P. D. Himatsingka & Co. On the facts of this case I am satisfied that the plaintiff had complied with all the requirements of law before obtaining an ex parte decree.

5. The last question is the question of limitation. According to the plaintiff the present application is barred by limitation, Mr. Chatterjee placed Article 123. Limitation Act, and submitted that the time to make an application for setting aside an ex parte decree would be 30 days from the date of the decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree. I have already held that I am satisfied that the Master's summons was duly served on all the petitioners and no fresh writ or summons were required to be served on the substituted defendants under the Codeof Civil Procedure. Therefore, the second half of Article 123, Limitation Act, will not be attracted on the facts of this case and time in this particular case will start running from the date of the decree. Assuming for the sake of argument that the notice or Master's Summons was not served as submitted by Mr. Chatterjee, still the application would be barred by limitation because 30 days had expired on 28th April 1983, from the date of amended plaint or the decree as admitted by the petitioners in the petition. In either case the application is barred by limitation. I am, however, of the view that on the facts of this case, the term will start running from the date of the decree. Moreover, on the merit of this application, this application is bound to be rejected irrespective of the question of limitation.

6. In that view of the matter, this application is rejected. The plaintiff will get the cost of this application from the petitioner.

7. Mr. Chatterjee appearing for the petitioner prayed for stay of operation of this order. Prayer for stay is refused.


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