Mahesh Singh and Others vs Sewaram and Others

Fakhruddin, J.

The Appellants have preferred this appeal against the judgment and decree dated 8th March. 97. passed by Shri A.K. Jain. Third Additional Judge to the Court of District Judge. Bhind. in Civil Appeal No. 31 A/96, arising out of the judgment and decree dated 26.11.1990. passed by Civil Judge Class-II. Mehgaon, district Bhind. in Civil Suit No. 3 1A of 86.

Briefly narrated the facts are that the Respondents-Plaintiffs 1 to 4 filed the suit for declaration of Bhumi Swami rights and delivery-of possession and also for cancellation of sale-deed dated 20.7.1974. in respect of the disputed lands. It was contended that the sale-deed was executed by one of the Plaintiffs named Sewaram in favour of Hukumsingh. It was contended that the Sewaram was in jail and the document was got executed by adopting the procedure u/s 38 of Indian Registration Act. The document was sent to the Sub Registrar. Gwalior who held an enquiry on 1.8.1974 and thereafter sent it to the office of Sub-Registrar. Mehgaon where the document was registered on 28.8.1974

The suit was filed on 20.2.1986, by the Plaintiffs 1 to 4 as mentioned above. The notices were issued. The order-sheet dated 13.8.1986 of the trial Court shows that one Mr. Vijay Kumar Datre, Adv. had filed the Vakalatnama on 26 6.1986. on behalf of Defendants 1. 2 and 3, but the same was placed before the Court on 13.8 1986. Time was granted to the Defendants'' counsel to file reply. On 10.11.1986 Defendants'' counsel Shri Datre pleaded no instructions and the Court proceeded ex parte. The matter remained pending. It was on 24.11.1990 that the application for amendment was filed by the Plaintiffs and the cause of action was changed from 28.8.84 to 28.8.74. The Court allowed the application without notice to the otherside. The judgment was delivered on 26.11.1990.

Shri A.K. Shrivastava. learned Counsel for the Appellants contended that in this case, service was not proper, and the Court-below was not justified in proceeding ex parte. It was contended that in this case, the counsel pleaded no instructions and therefore notices ought to have been issued. Reliance was placed on Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, and Malkiat Singh and Another Vs. Joginder Singh and Others, . In Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, . the Apex Court held as under:

It is not disputed in the present case that on March 15, 1974 when Mr. Adhia. Advocate withdrew from the case, the Petitioners were not present in Court There is nothing on the record to show as to whether the Petitioners had the notice of the hearing of the case on that day. We arc of the view, when Mr. Adia withdrew from the case, the interests of justice required that a fresh notice for actual date hearing should have been sent to the parties. In any ease, in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer.

In Malkiat Singh''s ease (supra) reported in (1998) 2 SCC 206, the Appellants" counsel pleaded no instruction on 18. 11.1991 and the ex parte decree was passed on 8.2.92, without issuing any notice to the Appellants who were not present when then counsel pleaded "no instructions.'' The Appellants came to know about ex perte decree on 6 6.1992 and within four days thereafter they filed an application for setting aside ex parte decree. The Apex Court held that the Appellants are neither careless nor negligent in defending the suit and therefore, they cannot be said to be at fault, and the ex parte order and decree in the circumstances, are liable to be set aside.

Shri Shrivastava. learned Counsel for the Appellants submitted that the lower appellate Court in para 15 of the judgment reining on the Division Bench decision of this Court reported in 1977 MPLJ 562 : 1977 (1) MPWN 487 (Nagar Palika Nigam. Gwalior v. Motilal Munnalal), held that the Appellant did not apply under Order 9 Rule 13 CPC for setting aside ex parte judgment and decree before the trial Court, and filed the appeal. It is held that the Appellant can challenge the exparte judgment and decree only on merits in that situation and it cannot be set aside on the ground that there was sufficient cause for his non-appearance before the trial Court. Learned Counsel for the Appellants contended that this judgment of the Division Bench is set aside by Hon''ble the Supreme Court in Civil Appeal No. 719/78 (Motilal. v. Nagar Palika Nigam), decided on 23rd March. 1978 The Apex Court while setting aside the judgment observed as under:

We are of the opinion that it is in the interest of justice to set aside the order dated 3 1 3.1977 passed by the Madhya Pradesh High Court. (Gwalior Bench) in First Appeal 26 of 1976 and to remand the suit for a fresh trial to the trial Court The trial Court shall give liberty to the Respondent to file the written statement and thereupon, the suit shall be disposed of in accordance with law. Both parties shall be at liberty to adduce evidence. No. order, s to costs.

Counsel for the Appellants contended that in this case, the cause of action, which was shown in the plaint was for 28.8.84, but thereafter the amendment application was filed and cause of action was shown to be of 28 8.74, by amendment in para 17 of the plaint. It is submitted that the earlier date of sale-deed was shown as 28.8.84 and date of dispossession was shown as 28 8.84, but subsequently by amendment, date of sale-deed has-been shown as 28.8.74 and the date of dispossession has also been shown as 28.8.74 Counsel for the Appellants submits that the trial Court without looking to the fact that there was change about cause of action, allowed the amendment, which materially effected. Counsel contended that in any case, notice ought to have been issued before allowing the amendment. Reliance was placed on AIR 1946 Nag 60 (Ganesh Prasad Ramprasad v. Damayanti W/o Ganesh Prasad). in which it is held that where the Defendant is absent, no amendment would be allowed without fresh notice to him. It is further contended that when the amendment is allowed in this nature, the Court ought to have considered the Section 3 of the Limitation Act, which says that:

Subject to the provisions contained in Section 4 - 25 inclusive, every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the first schedule, shall be dismissed, although limitation has not been set up as a defence.

Reliance has been placed on AIR 1935 85 (Privy Council) Clause (e) - limitation is peremptory and should be given effect to even though not referred to in pleadings Reliance has also been placed on AIR 1948 41 (Nagpur) , headnote-B-The Act lays a duty upon Courts to act suo motu in all cases where the suit is instituted beyond the statutory period and the fact that the parties may have thought differently or may not have noticed the point does not make the slighest difference. Reliance is further placed on. Central India Chemicals Private Ltd. Vs. Union of India (UOI), especially para 14. in which it is observed that:

Thus, in the suit limitation under Article 30 has not been expressly pleaded. Still it docs not help the Plaintiff. One has, in this respect to distinguish between a case where limitation is an arguable point and has therefore to be pleaded and one where it is patent and non-controversial on the proved facts Here, for example the two crucial dates are on the plaint itself and do not admit of the least doubt or controversy. Thus, u/s 3 of the Limitation Act, the Court has to dismiss it whether or not limitation has been set up as a defence.

On the foregoing submissions made, Counsel for the Appellants submitted that first substantial question of law framed by this Court on 16.4.1998 be answered in favour of the Appellants and the ex parte decree be set aside as the same is not sustainable in law and has been passed without notice.

Shri Arun Mishra. learned Counsel for the Respondents, on the otherhand contended that the Court below did not commit any illegality and he supported the judgment and decree.

Having considered the rival contentions advanced by the parties and having gone through the record, it is borne out from the record that though the counsel pleaded no instructions on 10.11.1986, but the notices were not issued to the parties. In view of the decisions reported in Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, and Malkiat Singh and Another Vs. Joginder Singh and Others, and in view of the facts and circumstances of the case discussed elaborately in earlier paras especially that of 3 to 6, in the opinion of this Court, the Appellants deserve opportunity to contest the suit, on merits in the "ends of justice. It is specifically so as the Respondents/ Plaintiffs filed the application on 24. 11.1990 changing cause of action from 28.8.84 to 28.8.74, which was allowed without notice to the otherside. It is pertinent to mention here that where Defendant is absent, no amendment should be allowed as has been done in this case. In view of the decision reported in AIR 1946 Nag 60 (Ganesh Prasad Ram Prasad v. Damayanti W/o Ganesh Prasad), the Court ought to have issued notice, before allowing amendment. In view of the discussion aforesaid, the first substantial question of law is answered in favour of the Appellants and the ex parte judgment and decree passed are set aside.

The second substantial question of law is regarding the suit being barred by limitation. The contention is that causes of action as per amended plaint is 28.8.74 and the suit has been filed on 20.2.1986, which according to the Appellants ought to have been filed within three years from the date of the sale-deed. Counsel for the Respondents, on the other hand, contended that Article 59 would not be applicable and it is Article 65, which would be applicable.

In the opinion of this Court, since the ex parte judgment and decree have been set aside on that count, it will be just and proper to leave the question of limitation open to be decided by the trial Court.

In view of what has been stated above, the appeal is allowed. The ex parte judgment and decree passed by the Court-below are set aside. The Appellants/Defendants arc given opportunity to file written statements and take such grounds which are available to them in law including that of limitation. Copy of the amended plaint shall be supplied to the Appellants by the Respondents-Plaintiffs. The trial Court shall decide the suit on its own merits in accordance with law, without being influenced by any of the observations made by the Lower Appellate Court or this Court Counsel fee as per scale.