AI Structured Summary
Not yet generated for this judgment
Judgment
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 m the court of Sub Judge. Jammu. The defendants having failed to appear
despite service, an exparte decree for ejectment and recovery of Rs. 5, 600 was passed on 10111979 against the petitioner Om Parkash lone,
and the suit was dismissed against the other two defendants. An application for setting aside the same was made on 431980 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 inspite 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 exparte against them; thirdly,
that he never informed them that an exparte decree had been passed against them; and fourthly, that they had learnt about the decree for the first
time on 2821980, where after they applied for a copy of the decree and filed the application immediately after the copy was obtained.
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 exparte 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 Vs
Hans Raj, 1974 K. L.J. I, 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.
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 exparte 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 counsel 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 exparte decree was barred by limitation.
The exparte decree, as already noticed, was passed against the petitioner Om Prakash only. The other petitioner, namely, Sat Pal had, therefore,
no right to file the application for setting aside the same, and consequently no light to go in appeal before the District Judge as well to this court in
the present revision petition.
An application for setting aside an exparte decree is governed by Art. 164 of the Limitation Act which reads as under:
Description of Period of Time from which period
application: Limitation begins to run
By a defendant for Thirty The date of decree or.
an order to set aside a days where the summons was
decree passed exparte not duly served, when
applicant has knowledge of the decree
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 It, 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 1451979. 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 261979, to defend a sail, for ejectmeat 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 plain t did not accompany the summons to make it a due service within the meaning of Art. 164. In this
view, time according for the learned"" counsel, ran not from the date of the decree, but from the date the petitioner acquired knowledge of it.
Due service of summons in terms of Art. 164 is aimed at achieving a two fold 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 make an
application for setting said the exparte 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 twofold object of due
service of the summons, there can^ be no manner of doubt, would be achieved aid the defendant's right to make an application for setting aside the
exparte decree will be restricted to making it within thirty days from the date of the decree itself. Plating 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 exparte 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
suit exparte 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.
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 it self 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 exparte decree on
the ground of the negligence of his counsel ?
(ii) bad he satisfactorily explained the aforesaid delay in terms of Sec. 5 of the Limitation Act;
(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 exparte decree ?
The courts held the petitioner's application as barred by time, by relying upon Shanker Dass's case (supra) and rightly so, because till then
another Full Bench judgment of this court in Shyam Lal Dhar Vs M/S Ply Board Industries, 1981 K. L. J. 432, which also dealt with the same
point, had not come into existence. Shankar Das's case (supra) was explained in the aforesaid judgment in these words :
•'If these observation are construed to imply that, irrespective of any thing 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 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 principle set out above.
And the law on the subject was laid down by the Full Bench in these words :
On these observations with which we generally agree, it necessarily follows that where the defendants employs a counsel for the purpose of his
appearance in the case court and the counsel neglects or fails to appear in the case, his neglect or failure would constitute a sufficient cause for the
nonappearance of the defendant within the meaning of 09. 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
exparte decree is due to the negligence or failure of the counsel to inform the defendant that an exparte decree had been passed against him, such
neglect or failure would be a, sufficient cause for condonation of delay under sections of the Limitation Act provided the defdt. had done all that
was. required of him in order to keep himself posted with the progress of the case
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. Bhasitt 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 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 expaite. On the other hand he had told him that the suit was still pending, even though it had been already decreed
exparte, 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 exparte decree. He was, therefore, entitled to claim condonation of the delay on the ground that
he was not himself negligent in filing it within time, but had to suffer due to the negligence of his counsel
This brings me to the second question. It is well settled that a party claiming condonation of delay in terms of Sec. 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 2921980
when, it is his own case, he had acquired the knowledge of the decree. He filed the application on 431980. For the intervening period, he has
rendered his explanation that after having come to know from the respondent's witness Dalbir Singh that an exparte decree had been passed
against him, he immediately made an application for its copy, which was made available to him on 331980, and he made the application on the
following day. He has thus satisfactorily explained the period between 2921980 and431980.
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 as exparte 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 it has expired. Further more, the story that such information was conveyed to the petitioner, according to the learned counsel, is
clearly an after thought, 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.
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 the case, the parties are
left to bear the their own costs in this court.