1. The appellant, Sohonlal Nagarmull, who was the defendant in a suit decreed 'ex parte', has preferred the present appeal against an order of P. B. Mukharji J., refusing to set aside the 'ex parte' decree. The learned Judge did not deliver a judgment, but statements were made to us from the Bar regarding the ground on which, he dismissed the appellant's application. The learned junior Counsel for both parties, who were in the Court below, stated that a preliminary ground was taken on behalf of the respondent that the application was barred by time and the learned Judge dismissed the application on that ground without entering into its merits.
2. Mr. Deb, who appeared before us as theleading Counsel for the respondent, stated that if limitation was the only ground on which the application had been dismissed, he would concede at once that the point should be decided in favour of the appellant. He added that we might proceed to consider the application on its merits or send it back to the learned Judge for disposal by him. It was, however, brought to our notice that there was a reported decision of P. B. Mukharji. J. himself, given in another case, according to which the application in the present case would be time-barred. We, therefore, thought that it would not be proper for us to decide the issue of limitation in the appellant's favour merely on the concession of Counsel without giving due consideration to the reasons given by the learned Judge in support of the view held by him.
Such consideration appeared to us to be all themore necessary, because we were informed that,on the identical point, there was also a decision by Bachawat J. in which a contrary view had been taken. As there is obviously a conflict of opinion on a question of law and procedure affecting applications made on the Original Side of this Court, we thought it proper to give a decision on it.
3. The facts are as follows. On 21-11-1950, the respondent, Manick Lal Seal, brought a suit against the appellant, Sohonlal Nagarmull, for recovery of possession of premises No. 85/2E Ripon Street, arrears of rent and mesne profits. The suit appeared in the Peremptory List of P. B. Mukharji J. on 19-2-1952 and was reached on 28-3-1952, when none being present on behalf of the appellant, it was decreed 'ex parte'. Thereafter, the appellant took out a Master's summons for an application to set aside the decree and made an application which, however, was dismissed on the ground that it was not a proper application.
Then on 1-4-1952, the appellant took put a notice of motion in respect of an application to be moved on the 7th April following. On 7-4-1952, the application appeared in the list of P. B. Mukharji J. who gave the usual directions in regard to the filing of the affidavit-in-opposition and the affidavit-in-reply and adjourned the motion to 28-4-1952. On the 28th the motion was further adjourned to the next day at the instance of the respondent. On the next day, that is, on the 29th of April, the application was dismissed on the ground, as was admitted before us, of limitation. Thereupon, the present appeal was preferred.
4. The question before us is whether the dismissal was correct. Unfortunately, there are no materials to show what reasons actually weighed with the learned Judge, and to proceed on the footing that he must have dismissed the application on the identical reasons that he had given in the reported case will certainly be to proceed on an assumption. But no other reasons, and, in fact, no reasons at all were urged by the respondent in support of the order under appeal. We have, therefore, only to see whether the reasons given in the reported case for the view that an application would be barred by time in circumstances like those of the present case are good and valid and whether the order appealed from must, for those reasons, be upheld.
5. The earlier decision of P. B. Mukharji J. is reported in -- 'Debendra Nath v. Sm. Satyabala Dassi', : AIR1950Cal217 (A), where it was a plaintiff's application for setting aside a decree dismissing the suit for default. The decree was passed on 5-5-1949, and a notice of motion returnable on 22-8-1949, was taken out on the 19th of August. On the 22nd August, the usual directions for the filing of affidavits were given and the application was adjourned to the 6th September, but the petitioner did not get the application noted as made on that day. On the 6th September the application was adjourned to the 13th September and again the petitioner did not have the application noted as made even on that date. On the 13th September the application was adjourned till the 16th and on the 16th it was heard and dismissed as barred by limitation.
6. In giving his reasons, P. B. Mukharji J. pointed out that under Article 163, Limitation Act, the relevant period of limitation was thirty days from the date of dismissal and, therefore, the application was plainly barred by time, even on the day on which the notice of motion had been taken out. It had however been argued before him that in a case where he plaintiff had no knowledge of the decree at the date it was passed, the starting point of limitation would be the date of the plaintiff's knowledge, which in that case was said to have been 11-8-1949. P. B. Mukharji J. did not accept that view of Article 163, but he proceeded to hold that even assuming that the starting point of limitation was 11-8-1949, the application was still out of time, because it was not 'made' within the meaning of that word till 16-9-1949, when the period of thirty days had already expired.
In the learned Judge's view, an application was not made when merely the notice of motion was taken out, nor made when only directions for the filing of affidavits were given or the hearing simply adjourned to a future date, unless, at least, the plaintiff got the application noted as made on one of such dates. When no such note was made on any of the earlier dates, the application was made only when it came to be heard. The learned Judge does not seem even to have decided that an application is made when it is noted as made without any hearing taking place, because all that he says is that if the application before him had been noted as made on the 22nd August or the 6th September, it might have been argued that limitation had ceased to run on the date when the note was made.
7. If the view taken by P. B. Mukharji J., be correct, the application in the present case was not made till 29-4-1952, when it was heard. Previously thereto, only directions for the filing of affidavits had been given and orders for adjournment passed, but on none of those dates had the application been noted as made. The Article of the Limitation Act applicable to the present case is Article 164, which prescribes a period of thirty days from the date of the decree or where the summons was not duly served, the date when the applicant has knowledge of the decree. There is no case here of the summons not having been served or the appellant not knowing of the decree at the date it was passed. The appellant had therefore only thirty days from 28-3-1952, and if his application was made only on 29-4-1952, as it would have to be taken to nave been according to the view of P. B. Mukharji J. it was clearly barred by time.
8. The decision of P. B. Mukharji J, came to be considered by Bachawat J. in the case of --'Abdul Gani v. David Jacob' 57 Cal WN 313 (B), where the learned Judge had to consider an application under Section 5(2), Calcutta Tnika Tenancy (Amendment) Ordinance, 1952. Such an application was required by the Ordinance to be made within three months from the date of its commencement which was 21-10-1952.
The notice of motion was taken out on 17-12-1952, for the 22nd of December following and on the 22nd, the usual directions for filing affidavits were given -- the application being adjourned to 19-1-1953. On the 19th it was further adjourned to the 27th January and the hearing of the application commenced on that date. It was argued on behalf of the respondent to the application that the application was not made within three months from the commencement of the Ordinance, that is, within 21-1-1953, Bachawat J. held that an application was made to a Court when the Court took cognisance of it and that in the case before him, it had been made, first, on 22-12-1952, then on 19-1-1953, and, lastly, on 27-1-1953.
He referred to the provisions of Rules 6 and 15 of Chapter 20 of the Rules of the Original Side and held that under the provisions of those Rules, orders giving directions for the filing of affidavitsor granting adjournments were judicial acts. He added that although an application was not made when a notice of motion was taken out, as held in certain earlier cases and finally in -- 'Shree Chand Daga v. Sohanlal Daga' : AIR1943Cal257 , there were expressions of opinion in those cases to the effect that an application was made when it was mentioned to the Court or when the Court took cognisance of it and, upon taking cognisance, passed an order for adjournment.
The learned Judge did not consider himself bound by the observations made by P. B. Mukharji J. on the second part of the case in ' : AIR1950Cal217 (A)', because the application in that case being held to be barred even on the date when the notice of motion was taken out, the expression of opinion that it was not made on several subsequent dates and was made only when it was actually came to be heard was, strictly speaking, an 'obiter dictum'.
9. Since we are considering the reasons given by P. B. Mukharji J. on their merits, the question whether they were reasons necessary for the decision or mere further expressions of opinion in the nature of 'obiter dicta', is immaterial. What we have to consider is whether the reasons given by P. B. Mukharji J are correct.
10. There is no question that Article 164 of Schedule I to the Limitation Act applies to the case. That Article prescribes the time-limit for applications made by a defendant for an order to set aside a decree passed 'ex parte'. With that Article must be read Section 3 of the Act which provides that every suit instituted, appeal preferred and application made after the period prescribed therefor by Schedule I, shall be dismissed. There is an explanation as to when a suit is instituted, but the section does not explain when an appeal is preferred or an application is made. It is, however, necessary to note that the Section speaks of making an application and not of filing or giving notice of one. The relevant enquiry must, therefore, be when an application is made.
(11) Even apart from authority, it seems clear that to take out a notice of motion is not to make an application. A 'notice of motion', as the term itself indicates, is only a notice that a motion will be made and not that it has been made or is being made. It is only an intimation to the opposite party of an intention to make a motion on a future date which, under Rule 4 of Chapter 20 Of the Rules of the Original Side, must be stated in the notice. But when, after a notice of motion has been filed in the Registrar's Office and pursuant thereto, the motion is included in the Peremptory List of the Judge on the day specified in the notice & the motion being called on, the petitioner makes some prayer on which the Court makes an order, the application, to my mind, is then made to the Court.
Usually, the Court gives directions for filing the affidavit-in-opposition and the affidavit-in-reply and jadjourns the application to a subsequent date, as was done in the present case on 7-4-1952. Such an order is made under Rules 11 and 15 of Chapter 20 of the Rules of the Original Side. Unless such an order is made under Rule 11, giving leave to the parties to file the affidavit-in-opposition and the affidavit-in-reply on certain future dates, no such affidavits can be used at the hearing, if they were not filed before the date named in the notice of motion -- see Rules 7 and 11; and unless an order is made under Rule 15, adjourning the hearing of a motion to a future date, it must be heard on the first date of hearing and cannot be heard on a subsequent date -- see Rule 15.
The direction for filing affidavits on subsequent dates is made on the prayer of the parties and the order for adjournment is made with their consent. It would thus seem to be clear that when the Court is asked to adjourn the hearing of the application or to give leave to the parties to file affidavits on a subsequent date, the application is brought to the notice of the Court and the Court is moved in regard to it, so that the application is made. I would prefer not to use the phraseology adopted by Bachawat J. and not to look at the matter from the point of view of the Court taking cognisance, because what we are considering is not when the Court entertains an application, but when the party makes his application to the Court. But I must hasten to add that cognisance taken by the Court is proof of the application having. been made; for unless an application has been made, there is nothing before the Court of which it can take cognisance.
It appears to me that when the Court makes an order for adjournment in regard to an application, it treats the application as already made and merely postpones its consideration; and, similarly, when it gives directions for the filing of affidavits, it makes an order on the application. By asking the Court to make such orders, the petitioner makes the application. There can be no question of getting the application noted as made on such dates, because the application is made in fact.
12. It does not appear to me to be material that when a motion is adjourned or directions are given for the filing of affidavits on future dates, the application is not heard on the merits. The law of limitation is addressed to the commencement of a proceeding and not to its disposal or to the consideration of the subject-matter. It is designed to discourage the pursuit of claims which have become stale by efflux of time and, naturally, the diligence it enjoins has reference to the initiation of a proceeding. Section 3, Limitation Act to which I have already referred speaks of instituting a suit or preferring an appeal or making an application. The test, therefore, always is whether the party did all that he was required to do in order to bring the matter before the Court and set it in motion. If he did so, he instituted the suit or preferred the appeal or made the application, irrespective of whether any consideration of the merits of the case took place.
It is true that the test of diligence would also be satisfied by the taking out of a notice of motion, but that step is insufficient to constitute the making of an application, because it does not extend up to the Court. Where, however, the Court is approached in connection with an application, in whatever manner it may be, the application is made, unless it be that the approach is with, regard to some incidental matter, belonging to a stage prior to the making of an application. Although, therefore, this Court has not accepted the Bombay view that the filing of a notice of motion in the proper office of the Court for signature and seal is making an application for the purposes of limitation, or the Madras view that an application is made when the notice of motion is issued, it has never been held--nor is there any reason for holding -- that an application is not made even when the motion comes up before the Court, the Judge gives direction for the filing of affidavits and adjourned the hearing to a subsequent date.
13. In my view, the application was made in the present case on 7-4-1952, which was the first day of the hearing of the motion and when the Court gave directions for the filing of affidavits and adjourned the hearing to the 28th of April. As the decree was passed on 28-3-1952, the application was within time.
14. There was some discussion at the Bar as to what further orders we should make in case we decided the issue of limitation in favour of the appellant. It was suggested on behalf of the respondent that we might proceed to hear the application on the merits, inasmuch as the affidavits were all on record and have been included in the paper book. We do not think that it will be proper for us to do so.
The learned Judge had no occasion to consider the remaining issue or issues and it would not be proper ior us, sitting as an Appellate Court, to decide those matters without the benefit of the findings of the learned trial Judge. The decree was a decree passed by him and it is that decree which is sought to be avoided on the ground that there was sufficient cause for the appellant's absence on the date the decree was passed. It appears to me that this is pre-eminently a matter, at least primarily, for the learned Judge himself to consider and it is for him to say, in the first instance at least, whether the appellant has been able to make out a sufficient cause for his absence. The proper course for us to adopt therefore is to set aside the order of the learned Judge and to remand the case to him for a decision of the issues other than that of limitation which is the only matter we decide.
15. In the result, this appeal is allowed, the order of the learned Judge is set aside and the case is sent back to him for decision of the issues other than that of limitation, and disposal according to his findings.
16. Costs will abide the result.
17. Certified for two Counsel.
S.R. Das Gupta, J.
18. I agree.