Smt. Kamalbi vs Jasmal

M.R. Sharma, J.—The facts giving rise to this revision petition may briefly be stated as under:

One Kalu was survived by two sons Bhabloo and Bhoop Singh Bhoop Singh''s son was Jasmal and Bhabloo''s wife was Kamalbi. Bhabloo died on June 17, 1968. His property was mutated in favour of his widow Kamalbi. Jasmal respondent brought a suit for declaration to the effect that Kamalbi was not the legally wedded wife of Bhabloo de-ceased and that he was entitled to inherit the property left by his uncle Bhabloo deceased. The suit was brought on July 9, 1970. In that case an exparte decree was passed by the learned trial judge on October 5, 1970. The exparte evidence led by Jasmal was discussed by the learned trial Court Judge in the following terms:

In his ex-parte evidence the plaintiff has examined PW 1 Yasin PW 2 Rehmat and PW 3 Jasmal in order to prove his case. PW 1 Yasin has stated that Kallu was the owner of the land in suit. Bhabloo died issueless and Jasmal being the nephew of Bhabloo is entitled to inherit the land in suit. He also stated that Smt. Kamalbi is not the widow of Bhabloo deceased. The mutation was entered in the name of Smt. Kamalbi and the copy of the same is Ex. P 1, PW 2 Rehmat and PW 3 Jasmal have also stated accordingly.

After obtaining this decree, Jasmal respondent got the property left by Bhabloo mutated in his favour. The petitioner asserted that she came to know of the ex-parte decree on December 27, 1971, around about the time when the mutation of the property was sanctioned in favour of Jasmal. On January 4, 1972, she filed a petition under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside the exparte decree. She stated therein that she was an old and illitrate widow and she came to know about this decree 10/15 days back, whereafter she obtained the legal advice and filed the petition, out of which this revision arises. In the reply filed by the respondent, it was asserted that on an earlier occasion, Kamalbi had filed a civil suit, in which the respondent had filed a written statement on November 19, 1971, wherein he had stated that under an earlier exparte decree Kamalbi had been declared not to be the widow of Bhabloo deceased. In other words, a plea was raised that the petitioner had come to know of the exparte decree on November 19, 1971, and the application filed by her was beyond time. The learned Courts below came to the conclusion that Kamalbi had information about the earlier suit and the application filed by her was barred by limitation. The petitioner has come up in revision against this order.

Mr. Sarin, learned counsel for the petitioner, has vehemently argued that the petitioner was an illiterate and 75 years old woman and the respondent was clever enough to get a false report on the summons to the effect that she had refused service. He further submitted that even in para 3 of the written statement, said to have been filed by the respondent on November 19, 1971, no exact particulars of the ex-parte decree had been given. On this basis, the learned counsel argued that the findings recorded by the learned Courts below to the effect that the petitioner had knowledge of the decree stood vitiated.

Paragraph No. 3 of the written statement filed by the respondent in the earlier litigation, when translated, into English reads as under:

Para No. 3 of the plaint is incorrectly stated. In the suit entitled ''Jasmal v. Kamalbi'' No. 188 of 1970 decided on October 5, 1970, it has been decided that the plaintiff was not the widow or the married wife of Bhabloo deceased, nor was she his heir, and the suit regarding agricultural land had been decreed in favour of the defendant. That suit had the bar of resjudicata and the plaintiff was estopped by her conduct to file the present suit. Even otherwise, the property in dispute did not belong to Bhabloo deceased. For this reason, the question of the plaintiff being the owner of the same as heir, does not arise.

The finding recorded by the learned Subordinate fudge on October 5, 1970, when he passed an ex-parte decree against the petitioner, has been extracted above. It shows that on the basis of the earlier statement made by two witnesses, it has been held that the petitioner was not the widow of Bhabloo deceased, and Jasmal-respondent was entitled to inherit the property left by him. Mr. Sarin, the learned counsel for the petitioner, has infromed me that the property falling to the share of the petitioner comes to about 43 acres of land. There is no controversy about the point that the petitioner is an illiterate village lady. The sole question to be determined is whether from the averments made in para 3 of the written statement filed by the respondent, which has been extracted above, the petitioner can be deemed to have had the knowledge of the ex-parte decree, or not. One thing is quite clear. The Court which had passed the decree in the earlier suit, has not been mentioned in that paragraph. It might be that an educated person could have from the number and the date of the decision of the earlier suit, come to know that the suit had been decided by a particular court, but the same cannot be said about the petitioner. Mr. Sarin also relied upon Bapurao Sakharam Karmarkar Vs. Sadhu Bhivba Gholap, , for the proposition that the word "knowledge" used in Article 164 of the Limitation Act, 1908, which corresponds to Article 121 of the present Limitation Act of 1963, connotes something more than mere knowledge that a decree had been passed in some suit in some court against him, and its requirement is that a particular decree had been passed against him in a particular court in favour of a particular man for a particular sum. The observations made in this case fully apply to the case in hand. Mr. M. S. Jain, the learned counsel for the respondent, has, however, brought to my notice a decision of the Supreme Court reported as Panna Lal v. Murari Lal AIR 1967 S.C. 1384. In that case, the Court held that if from the information conveyed to the defendant, it could be inferred that he had the knowledge of the decree sought to be set aside, time began to run against him under Article 164 of the Limitation Act. The Supreme Court in paragraph 5 of the judgment, made a pointed mention of the fact that the Courts below had concurrently found that the appellant in that case was personally present in the Court of the First Civil Judge on August 16, 1956, when the learned Judge informed him that an ex-parte decree had been passed against him in suit No. 25 of 1958. In other words, it was in these circumstances that the application filed by the defendant in that case for setting aside an ex-parte decree, was held to be beyond time. Earlier in the judgment, the Court observed:

.....................The test of the sufficiency is not what the information would meant to a stranger, but what it meant to the defendant in the light of his previous dealings with the plaintiff and the facts and circumstances known to him. If from the information conveyed to him the defendant has knowledge of the decree sought to be set aside, time begins to run against him under Article 164. It is not necessary that a copy of the decree should be served on the defendants. It is sufficient that the defendant has knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree.

These observations clearly lay down that a Court has to determine, on the circumstances of each case, whether a defendant in a case could be deemed to have had the knowledge of the decree or not. As noticed earlier, the petitioner in this case is an old and illiterate widow. At this stage I cannot make any observations about her rights, but if the property had already been mutated in her favour, she should not have been deprived of the same in uncontested suit, which has now been done.

I am aware of the fact that both the learned Courts below have given a concurrent finding of fact that the petitioner had knowledge of the old decree, and the scope of a revisional Jurisdiction, is extremely limited, but herein the learned Courts below placed a wrong interpretation on the word "knowledge" appearing in Article 123 of the Limitation Act and have thus exercised jurisdiction with material irregularity which has obviously resulted in miscarriage of justice as far as the petitioner is concerned. The finding of fact in these circumstances can be corrected by a Court of revision.

For the reasons aforementioned, I allow this petition and set aside the orders passed by the learned Courts below as well as the ex-parte decree dated October 5, 1970, passed against the petitioner. Civil Suit No. 188 of 1970, shall now be heard and decided by the learned trial Judge in accordance with law. The petitioner shall have costs, which are assessed at Rs. 300/-. The parties through their counsel are directed to appear before the learned Trial Court on March 9, 1981.