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Rajasthan High Court · body

1959 DIGILAW 177 (RAJ)

Abhimanyu v. Sukhia

1959-09-14

J.N.KUNZRU, KANWAR BAHADUR

body1959
The facts leading to this application in revision may in brief be stated as under:— 2. The applicant made an application to,the Asstt. Collector Jaitaran with the averment that the land in dispute was in his Khatedari and the non-applicant was cultivating the same as his sub-tenant. It was urged that as the applicant himself wanted to cultivate the land, the non-applicant be ejected from the said land according to the provisions of sec. 180 of the Raj. Tenancy Act. This application was filed on 29th September, 1959. The office pointed out that the said application was not in accordance with the provisions of sec. 180 and lacked in essential details as provided in the rules under the Act. Subsequently it was reported that the formalities had been completed and accordingly it was duly registered by an order of the court on 10-11-56. On 12-11-56 the court ordered notice to be issued in the name of the non-applicant as contemplated in sec. 181 of the Act, Accordingly, a notice was issued, and from a perusal of the record of the case it appears that it was returned with the report of the process server that it was served on 13-11-56 on the non-applicant. On 24-12-56, which was the day fixed for the first hearing of the case, the applicant with his counsel was present and the non-applicant absented himself. Thereupon the trial court ordered that as the non-applicant had not put up appearance despite service of notice, ex parte proceedings may be taken against him and the applicant be directed to produce evidence on 28-1-57, after recording the evidence of the applicant the trial court gave an ex parte decree in his favour on 11.9.57. The applicant soon after applied for the execution of this ex parte decree and seems to have obtained possession over the land. The non-applicant then made an application on 24.5.58 wherein be stated that — (1) no notice was ever served on him and that the applicant managed to forge the non-applicants thumb-impression and got an endorsement of service made by a person under his influence. (2) that the said application u/Sec. 180 was not in accordance with the provisions of law in as much as no details as required under its provision and the rules made thereunder were mentioned therein. (2) that the said application u/Sec. 180 was not in accordance with the provisions of law in as much as no details as required under its provision and the rules made thereunder were mentioned therein. (3) that it was not properly verified as a pleading in accordance with rule 15 of O. 6, C.P.C. (4) that the application was not maintainable as it did not disclose any of the grounds (a) to (d) mentioned in sec. 180 under which ejectment could be sought. (5) that the notice was not issued on the prescribed form Y, and it was not served in accordance with the provisions of sec. 167 of the Act. (6) that no documents as required under the rules were filed with the application. (7) and lastly the ex parte order of ejectment dated 11.9.57 being against law deserved to be vacated. 3. No written reply to these objections seems to have been filed by the applicant. His counsel, however, contested that the said application having not been filed within the prescribed period of limitation namely thirty days from the date of the ex parte order as contained in sec. 182(2) of the Act, it was not maintainable as being barred by limitation. The trial court examined the contentions raised by the non-applicant and on 11.6.58 it came to the conclusion that as the notice was not issued in accordance with the provisions of sec. 167 of the Act on form V. and the application itself did not contain the essential ingredients as contemplated in sec. 180 of the Act read with rules 63 to 66, the ex parte order dated 11.9.57 was not a valid order. It then in the exercise of its inherent powers under sec. 151 C.P.C. set aside the said ex parte order. The trial court in the circumstances does not appear to have gone into the question whether the application dated 24.5.58 was or was not barred by limitation. An appeal against the said decision of the Asstt. Collr. was filed by the applicant before the learned Addl. Commissioner. 151 C.P.C. set aside the said ex parte order. The trial court in the circumstances does not appear to have gone into the question whether the application dated 24.5.58 was or was not barred by limitation. An appeal against the said decision of the Asstt. Collr. was filed by the applicant before the learned Addl. Commissioner. The main contentions of the appellant there were that, the said application dated 24.5.58 was time-barred, and that the trial court had no jurisdiction to exercise its ihher-ent powers under Sec. 151 CPC because a specific provision of law and the circumstances under which an ex parte order could be cancelled, existed in the enactment itself under sec. 182 (2) of the Rajasthan Tenancy Act. The learned Addl. Commissioner ruled out both the contentions and dismissed the appeal and confirmed the order given by the trial court. The same contentions were strenuously argued before us. 4. A preliminary objection was raised by the learned counsel for the non-applicant about the maintainability of this revision petition on the ground that after the trial court had set aside its ex parte decree, the original application was tried and dismissed by in on 28.1.59 on the ground that the said application was not in accordance with the provisions of sec. 180 of the Raj. Tenancy Act and rules made thereunder. It was stated at the bar that an appeal against the said order filed before the learned Addl. Commissioner was also dismissed. It pointed out that the original application having been thus dismissed on merits by both the courts, the present revision petition is devoid of any force and becomes infructuous. The learned counsel for the applicant admitted that his original application was of course dismissed by both the courts, but that he was contemplating to file an appeal or revision as the case may be before the Board of Revenue. It was pointed out that as the said decision by the courts was given pendente lite, the disposal of the present revision petition, a decision therein shall not become infructuous as it will materially affect the orders of the courts below. Having looked into the circumstances of the case, we are unable to accept this contention of the learned counsel for the applicant. Having looked into the circumstances of the case, we are unable to accept this contention of the learned counsel for the applicant. Whether the ex parte order is set aside or not, as prayed in this revision petition the fact remains that his original application having been tried by the trial court was dismissed on merits and it met the same fate in appeal before the Addl. Collector. Even if a second appeal or revision against that order of the Addl. Commissioner is filed before us by decision on this revision petition is not likely to materially affect the concurrent decision already given by the court below. The present revision petition in our opinion therefore becomes infructuous and deser-es to be dismissed on this ground alone. Nevertheless as certain legal points were argued before us in support of the revision petition we might examine them with advantage although they will be not more than of academic interest. 5. The contention of the learned counsel for the applicant is that in view of the clear provisions of law as contained in sec.182(2) of the Rajasthan Tenancy, Act, neither the trial court nor the lower appellate court had any jurisdiction to invoke their inherent powers u/S. 151 CPC and apply the provision of Art. 163 of the Indian Limitation Act and read with O. 9 R. 13 CPC to dispose of the controversy. In order to appreciate this contention we may reproduce the provisions of sec. 182(2) of the Act which runs as follows :— "182(2): If the tenant or sub-tenant does not appear within the period prescribed by such notice, the court shall pass an order for his ejectment; Provided that such tenant or sub-tenant may within thirty days from the date of such order, apply for setting it aside and if he satisfies the court that either the notice was not served on him of he had sufficient cause for non-appearance within the period prescribed by the notice, the court shall set aside the order and shall proceed to hear the case in the manner hereinafter prescribed". 6. 6. In the light of these provisions we will now proceed to examine whether the application dated 24.5.58 was presented within the prescribed period of limitation of 30 days from the date of order and if not, whether the lower appellate court was correct in interpreting the words "within 30 days from the date of order "to mean" from the date of the knowledge of such order" and further whether the provisions of O. 9 R. 13 CPC read with Art. 164 of the Indian Limitation Act as well as sec. 151 of CPC could be made applicable to dispose of the controversy between the parties. It was strenuously argued by the learned counsel for the applicant that as sec. 182(2) contained a specific provision and prescribed a period of limitation namely 30 days for setting aside an ex parte order in a proceeding under sec. 180 of the Act, the provisions of O. 9 R. 13 read with art. 164 of the Indian Limitation Act or sec. 151 of CPC were not at all applicable to the present case. 7. It is well known rule of law that where a specific provision of law exists in any enactment, no court is competent to exercise its inherent powers to defeat the provisions of an enactment and therefore the observations of the trial court setting aside the exparte order under sec. 151 CPC are clearly wrong. O. 9 R. 13 is also not applicable to the present proceedings as the manner and circumstances under which the exparte order is to be set aside have been specifically provided in sec. 182(2) of the Act. On the same ground Art. 164 of the Indian Limitation Act is also not applicable. What it really boils down to is that while setting aside an exparte order the court has to satisfy itself that either the notice was not served on the non-applicant or he had sufficient cause for non-appearance within the period prescribed by the notice and that an application to set aside an ex parte order should be filed by such person within 30 days "from the date of such order". The learned counsel for the opposite party, however, suggested the word " date of such order" need not be strictly and literally construed, but in the interest of justice should be interpreted to mean "the date of knowledge of such order". The learned counsel for the opposite party, however, suggested the word " date of such order" need not be strictly and literally construed, but in the interest of justice should be interpreted to mean "the date of knowledge of such order". This view some how prevailed with the lower court (appellate court). We are, however, unable to accept this line of reasoning. It is well established now that if the language of an enactment is clear arid unambiguous, it would not be legitimate for the courts to add and evolve therefrom some sense which may be added to carry out the supposed intentions of the legislature The intention of the legislature is to be gathered only from the words used by it and no such liberty could be taken by the court for effectuating the supposed intention of the Legislature. A.I.R. 1959, S.C. 488 is an authority on this proposition of law. The words "from the date of such order" as give in sec. 182(2) are clear and unambiguous and whatever may have been the intention of the legislature it is impossible to agree with the learned Addl. Commissioner to hold that by taking a more liberal and equitable sense these words could mean "from the date of knowledge of such order".What we really wish to emphasise is that it would be doing wrong to an express provision of law by inserting words which could not by any means be imported therein. In this view of the matter we are definitely of the opinion that the period of limitation in such matters shall run from the date of such order and not from the date of knowledge of such order. It is significant to point out that Art. 164 of the Limitation Ac clearly provides that the period of limitation shall run "from the date of the decree or where summons was not duly served, the applicant has knowledge of the decree. No such provisions having been made in the provisions to sec. 182(2) referred to above, it would be absolutely illegal to take the view taken by the learned Addl. Commissioner. The exparte order was admittedly, given on 11.9.57 and the application to set it aside was dated 24.5.58. No such provisions having been made in the provisions to sec. 182(2) referred to above, it would be absolutely illegal to take the view taken by the learned Addl. Commissioner. The exparte order was admittedly, given on 11.9.57 and the application to set it aside was dated 24.5.58. We therefore hold that the period of limitation for such applications shall be thirty days and it shall run from the date of the order to be set aside and not the date of the knowledge. 7. This now brings us to another issue namely whether inspite of the fact that the application was barred by limitation, it was within the competence of the lower courts to hold that as a result of certain grave illegalities in the procedure followed by them, viz. that the notice to the non-applicant was not issued and served in accordance with sec. 167 of the Act, the court below could in the interest of justice set aside the exparte order. In this connection our attention was drawn to 1957 RLW p. 598. The facts in that case were that a suit was dismissed in default of the plaintiff and defendant under O. 9 Rule 4 C.P.C. On an application by the plaintiff it was restored to its original number. The trial court proceeded with the trial of the suit without summoning the defendant and gave an exparte decree. An application to set aside the exparte decree was then filed by the defendant much after the expiry of the period of limitation on the ground that the trial court should not have proceeded with the trial after restoration without notice to the other party and pass an exparte decree. This was contested on the ground that the said application being time barred no such grounds could be urged now to set aside the exparte decree. The trial court overruled this objection and eventually set aside the exparte decree. In revision the learned Judge of the Honble High Court upheld the order of the lower court and observed that the procedure followed by the court in proceeding with the trial after restoration of the suit without giving any notice to the other party was quite wrong and virtually amounted to an abuse of the process of the court. In revision the learned Judge of the Honble High Court upheld the order of the lower court and observed that the procedure followed by the court in proceeding with the trial after restoration of the suit without giving any notice to the other party was quite wrong and virtually amounted to an abuse of the process of the court. His Lordship further observed that having regard to these peculiar circumstances of the case, the question of limitation was bereft of any real force because it is a fundamental principle of the administration of justice that no party should be allowed to suffer by reason of the act of the court Reliance was placed on (1871) 3 P.C., 465-Rodger vs. The Comfoird Escompte-de-Paris, wherein the following observations were made by Cairns L.C.— "One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitor and when the expression, the act of the court is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as whole, from the lowest court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those tribunals, If may use the expression, to take care that no act of the court in the course of the whole of the proceedings does any injury to the suitor in the court". Again in 31 E. R. 944-Pulteney Vs. Waman Lord Aldon it was held that— "If there be a principle upon which courts of justice ought to act without scruple, it is this; to relieve parties against injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought". Again in 31 E. R. 944-Pulteney Vs. Waman Lord Aldon it was held that— "If there be a principle upon which courts of justice ought to act without scruple, it is this; to relieve parties against injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought". 8 On the basis of these authorities, the learned Judge held that it will be seldom, if at all if a defendant in such cases will-get to know the decree within 30 days of its having been passed with the result that he will be left absolutely without any remedy, he having not made his application within 30 days of the date of the decree which was passed it in utter disregard of the mandatory rule of procedure and a wrong occasioned by mistake of the court. 9. Applying the aforesaid principle, the facts of the present case disclose beyond doubt that the notice to the non-applicant was not in form as provided in R. 67 read with Sec. 167(i) of the Act, and that it was not served on the tenant through registered post A. D. as contained in provisions of sec.l67(ii) of the Act. It thus clearly follows that as proper notice in the manner as stated above was not served on the non-applicant by the mistake of the court in disregard of the mandatory provisions of the law, the error committed by the trial court in passing ex-parte order against the non-applicant behind its back in the manner in which it did, was wholly unwarranted and justly and properly rectified by it by setting aside the exparte decree. The question, therefore, whether the application for setting aside the exparte order was filed within 30 days from the date of the order dwindles into insignificance and is completely bereft of any force. Taking all these facts into consideration we agree with the decisions of the lower courts, although the reasons are entirely different and direct that the application shall stand dismissed. 10. Before closing we may, however, add a word of caution for the guidance of the courts below that in a case in which an application conforms to the provisions of sec.180 and in which a notice has been served on a non-applicant in the manner as provided in sec. 10. Before closing we may, however, add a word of caution for the guidance of the courts below that in a case in which an application conforms to the provisions of sec.180 and in which a notice has been served on a non-applicant in the manner as provided in sec. 167 of the Act and the opposite party makes a default by not putting up appearance despite proper notice, the period of limitation for setting aside an exparte order against him shall be 30 days from the date of the order and not from the date of the knowledge of the decree.