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Om Parkash Vs. Mohant Hari Krishen - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Revn. Petn. No. 140 of 1981
Judge
Reported inAIR1983J& K40
ActsJammu and Kashmir Limitation Act, 1995 - Section 5; ;Code of Civil Procedure (CPC) , 1908 - Section 115 - Order 9, Rule 13
AppellantOm Parkash
RespondentMohant Hari Krishen
Appellant Advocate R.C. Nanda, Adv.
Respondent Advocate V.B. Sudan, Adv.
DispositionRevision allowed
Cases ReferredShyam Lal Dhar v. Ply Board Industries.
Excerpt:
- .....in the court of sub-judge, jammu. the defendants having failed to appear despite service, an ex parte decree for ejectment and recovery of rs. 5,600/- was passed on 10-11-1979 against the petitioner om parkash alone and the suit was dismissed against the other two defendants. an application for setting aside the same was made on 4-3-1980 by the petitioners in terms of order 9, rule 13, c. p. c. on the grounds : firstly, that they were not duly served in the suit; secondly, that in spite of that they had engaged one mr. b. k. bhasin, advocate to represent them in the court, who acted negligently and allowed the suit to proceed ex parte against them; thirdly, that he never informed them that an ex parte decree had been passed against them; and fourthly, that they had learnt about the.....
Judgment:
ORDER

I.K. Kotwal, J.

1. This revision petition arises in the following circumstances :

Mahant Hari Krishen, the respondent herein brought a suit for ejectment and recovery of Rs. 5,600/- for use and occupation of the suit house against the two petitioners, Om Parkash and Satpal and one Neak Ram in the court of Sub-Judge, Jammu. The defendants having failed to appear despite service, an ex parte decree for ejectment and recovery of Rs. 5,600/- was passed on 10-11-1979 against the petitioner Om Parkash alone and the suit was dismissed against the other two defendants. An application for setting aside the same was made on 4-3-1980 by the petitioners in terms of Order 9, Rule 13, C. P. C. on the grounds : firstly, that they were not duly served in the suit; secondly, that in spite of that they had engaged one Mr. B. K. Bhasin, advocate to represent them in the court, who acted negligently and allowed the suit to proceed ex parte against them; thirdly, that he never informed them that an ex parte decree had been passed against them; and fourthly, that they had learnt about the decree for the firsttime on 28-2-1980, whereafter they applied for a copy of the decree and filed the application immediately after the copy was obtained.

2. Objections to this application, denying all the allegations therein, were filed by the respondent. The parties also led evidence and the trial court on consideration of the same dismissed the application holding that the petitioners were not only duly served in the suit, but they had even otherwise acquired the knowledge of the suit from their counsel Mr. Bhasin, as also of the ex parte decree from the respondent and his witness Dalbir Singh more than thirty days before the application came to be filed. Relying upon a single Bench decision of this court in Shanker Dass v. Hans Raj, 1974 Kash LJ 1, the court further held that negligence of their counsel was the negligence of the petitioners, and consequently dismissed the application on the point of limitation.

3. An appeal from the aforesaid order was taken to District Judge, Jammu, which also met with the same fate. The learned District Judge dismissed it by holding that the application for setting aside the ex parte decree was barred by time, because not only had the petitioners been duly served in the suit, but also because they had acquired full knowledge of the suit from their coun-sel Mr. Bhasin. He, however, did not advert to the finding recorded by the trial court that they had also acquired any knowledge of the decree from the respondent and his witness. As both the petitioners as well as their counsel in his opinion were equally negligent in defending the suit, he dismissed the appeal on the ground that the application for setting aside the ex parte decree was barred by limitation.

4. The ex parte decree, as already noticed, was passed against the petitioner Om Parkash only. The other petitioner, namely, Sat Pal had, therefore, no right to file the application for setting aside the same, and consequently no right to go in appeal before the District Judge as well to this court in the present revision petition.

5. An application for setting aside anex parte decree is governed by Article 164 of the Limitation Act which reads asunder :

'Description of application :Period of limita-tionTime from which period begins to run164. By a defendant for an order to set aside a decree passed ex parteThirty days.The date of decree or, where the summons was not duly served when applicant has knowledge of the decree.'

6. According to this Article, where the defendant has been duly served, time to make an application for setting aside the decree shall run from the date of the decree itself. If, however, he has not been duly served, then time for making such an application shall run from the date he acquires the knowledge of the decree. In the instant case, the petitioner, Om Parkash, was served on 14-5-1979, He has admitted the service of the summons Ex. PA on him, which required him to appear in the court of Sub Judge, Jammu, on 2-6-1979, to defend a suit for ejectment that had been brought against him by the respondent, Mr. Nanda challenged this service on the ground that neither the summons served upon him gave a clear indication of the specific case in which he had to appear before the court, and nor did the process server himself convey the necessary information to him in that behalf. That apart, even a copy of the plaint did not accompany the summons to make it a due service within the meaning of Article 164. In this view, time according to the learned counsel, ran not from the date of the decree, but from the date the petitioner acquired knowledge of it.

7. Due service of summons in terms of Article 164 is aimed at achieving a twofold object : firstly, to convey to the defendant the information about the specific suit which he has to defend, the court in which he has to appear and the date on which he has to appear; and secondly, to provide him an opportunity of knowing all that would happen in the court during the course of the trial of the suit. It was with this object in view that the legislature enacted Rule 2 of Order 5, C. P. C., enjoining upon the court to enclose a copy of the plaint with the summons to be served upon the defendant Article 164 is no more sacrosanct than this. Where, therefore, the summons served upon the defendant is deficient in some particulars, but the defendant acquires the knowledge of those particulars through other means, the initial defect in its service is cured, and time to makean application for setting aside the ex parte decree will run from the date of the decree. The same consequence would flow, if the defendant without waiting for the service of the summons, voluntarily appears in the court to defend the suit. In both the cases the aforesaid two-fold object of due service of the summons, there can be no manner of doubt, would be achieved and the defendant's right to make an application for setting aside the ex parte decree will be restricted to making it within thirty days from the date of the decree itself. Placing a much too literal construction on the expression 'the summons was not duly served' occurring in Article 164 would expose it to ridicule. This may be illustrated by these examples. Suppose a defendant who had appeared in the court without waiting for the service of the summons on him, had all along contested the suit till the stage of the final arguments in it, but had absented himself thereafter, even he may also claim to be entitled to make an application for setting aside the ex parte decree passed against him not within thirty days from the date of the decree, but within thirty days from the date he acquired its knowledge. Suppose again, a defendant on whom a summons that is deficient in some particulars is served, and the same is also not accompanied by a copy of the plaint. He himself goes to the court, examines the file, and even obtains a copy of the plaint, but still chooses not to appear in the court, and allows it to decree the suit ex parte against him, even he would claim that limitation for making application for setting aside the decree shall run from the date he acquired its knowledge. This would clearly tantamount to abuse of the process of court. The case would be, however, different where a defendant is not served with the summons at all, but he acquires the knowledge about the case against him through other means. If he has not appeared in the case to defend it, he would be still entitled to make an application within thirty days from the date he acquires the knowledge of the decree, as in the absence of the service of summons on him, he would be entitled to presume that the court has not proceeded to try the suit.

8. The question as to whether or not the petitioner was duly served in the suit pales into insignificance for it is his own case that in the month of June.1979 itself he had acquired complete knowledge of the specific case which he was required to defend. In this view he could not have claimed limitation to run from the date of the knowledge of the decree which, according to him, he acquired later on, but from the date of the decree itself provided he could explain the delay in filing the application beyond time. The three questions upon which the decision of this revision petition, therefore, turns are :

(i) was the petitioner entitled in the circumstances of the case to condonation of delay in filing the application for setting aside the ex parte decree on the ground of the negligence of his counsel?

(ii) had he satisfactorily explained the aforesaid delay in terms of Section 5 of the Limitation Act; and

(iii) did the petitioner acquire knowledge of the decree from the respondent's witness more than thirty days before he filed the application for setting aside the ex parte decree?

9.The courts below held the petitioner's application as barred by time, by relying upon Shanker Dass's case (1974 Kash LJ 1) (supra) and rightly so, because till then another Full Bench judgment of this court in Shyam Lal Dhar v. Ply Board Industries. 1981 Kash LJ 432 : (AIR 1981 J & K 95), which also dealt with the same point, had not come into existence. Shankar Dass's case (supra) was explained in the aforesaid judgment in these words (at p. 99 of AIR) :

'If these observations are construed to imply that, irrespective of anything else, a party would be responsible for the negligence of his counsel then we must say that the law has been stated a little too widely. But that is not exactly what these observations were really intended to convey. The implication obviously was that on the facts of that case which showed that the party had not fully briefed the counsel nor even kept any contact with him, he himself was really responsible for the negligence of the counsel and should bear the consequences. So viewed, the decision does not run contrary to the principles set out above.'

And the law on the subject was laid down by the Full Bench in these words (at p. 98 of AIR) 5

'On these observations with which we generally agree, it necessarily follows that where the defendants employs acounsel for the purpose of his appearance in the court and the counsel neglects or fails to appear in the case, his neglect or failure would constitute a sufficient cause for the non-appearance of the defendant within the meaning of Order 9, Rule 13 provided that the defendant had done all that was required of him to ensure that the counsel would represent him on all the necessary hearings, It also follows that where the delay in filing the application for setting aside the ex parte decree is due to the negligence or failure of the counsel to inform the defendant that an ex parte decree had been passed against him, such neglect or failure would be a sufficient cause for condonation of delay under Section 5 of the Limitation Act provided the defendant had done all that was required of him in order to keep himself posted with the progress of the case.....'

10. The petitioner, it is in his own statement, had not only engaged Mr. B. K. Bhasin as his counsel to defend the suit on his behalf in the trial court, but had also paid him his fee. This statement remains unrebutted because Mr, Bhasin has not been examined to contradict it. Both the courts below have failed to take notice of this part of his statement and this constitutes an error of law. I see no reason not to accept it. It, therefore, follows that the petitioner 'had done all that was required of him to ensure that the counsel would represent him on all the necessary hearings' in the suit. It is also in his statement that he had been off and on going to his counsel to enquire from him about the progress of the case, but never had the latter told him that the suit had been decreed ex parte. On the other hand he had told him that the suit was still pending, even though it had been already decreed ex parte of which the petitioner himself had no knowledge. This part of his statement also remains unrebutted. Here again, the courts below have not said even a word on it and I see no reason not to accept it as well. It further follows that the petitioner 'had done all that was required of him in order to have him posted with the progress of the case.' Consequently, it was not his negligence but the negligence of his counsel that caused the delay in filing the application for setting aside the ex parte decree. He was therefore, entitled to claim condonation of the delay on the ground that he was nothimself negligent in filing it within time, but had to suffer due to the negligence of his counsel.

11. This brings me to the second ques-tion. It is well settled that a party claiming condonation of delay in terms of Section 5 has to explain each day's delay. Granting that the petitioner was entitled to claim condonation of the delay, he on his own admission was entitled to claim it till 29-2-1980 when, it is his own case, he had acquired the knowledge of the decree. He filed the application on 4-3-1989. For the intervening period, he has rendered his explanation that after having come to know from the respondent's witness Dalbir Singh that an ex parte decree had been passed against him, he immediately made an application for its copy, which was made available to him on 3-3-1980, and he made the application on the following day. He has thus satisfactorily explained the period between 29-2-1980 and 4-3-1980.

12. Then comes the last question. On this issue, as already noticed, the learned District Judge has not recorded any finding. Mr. Nanda's contention is that this part of the respondent's case is no better than a cock and bull story, as according to the learned counsel, no plaintiff, who has obtained an ex parte decree in his favour is supposed to tell his defendant that it has been so obtained; not at least till the time the limitation for filing an appeal against if has expired. Furthermore, the story that such information was conveyed to the petitioner, according to the learned counsel, is clearly an afterthought, for no such averment is to be found in the written objections to the petitioner's application under Order 9, Rule 13, filed on behalf of the respondent. There may be force in these contentions, but, I cannot sift the evidence on the point for either upsetting or upholding the finding, which was the domain of the two courts below, as I am not exercising my appellate, but; only revisional powers. The learned District Judge, as already pointed out, has not, said even a word on this issue.

13. Allowing the revision petition, I set aside the judgment of the learned District Judge and remand the case back to him with a direction that he will hear the parties again and decide the appeal in the light of the observations made heretofore. In the circumstances of thecase, the parties are left to bear their own costs in this court.


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