Raja Bhaiya v. Udal Singh — 1979 DIGILAW 1107 (ALL)

JUDGMENT I.B. Singh, Member. - This is a defendant's second appeal against Judgment and decree dated April 17, 1974 passed by learned Additional Commissioner, Jhansi Division dismissing the appeal of the defendant filed on January 31, 1972 holding it time barred against ex-parte decree dated March 29, 1971 decreeing plaintiff's suit for ejectment of the defendant filed on September 10, 1970. 2. I have heard the learned counsels for the parties and have perused the record. 3. A preliminary objection was raised that a revision lies against dismissal of first appeal being time-barred. Reliance has been placed on 1973 R.D. page 104. In reply it was argued that second appeal lies against dismissal of application for condonation of delay and dismissal of first appeal. Reliance has been placed on A.I.R. 1954 Mysore, page 86. 4. In this case the appeal was dismissed along with application for condoning delay. In Ram Das v. Gaon Sabha, 1973 R.D. 104 the first appeal was dismissed as time barred. It was argued that in dismissing the application for condoning the delay no question of considering the merits of the appeal did not arise when considering the question of limitation under Section 5 of the Limitation Act was being considered and it appears that a second appeal was filed in which it was not considered whether the appeal was numbered and was dismissed on that ground and the question of exercise of discretion in the matter of limitation was only considered. It was not considered whether if any appeal was numbered and application under Section 5 of the Limitation Act was dismissed and along with appeal was also dismissed then whether that order was appealable or not. In Mrs. Lucy v. Francis Furtade and another, AIR 1954 Mysore 86 it was held that "Where an appeal is filed and is given a number and it is later on dismissed on the ground of limitation, along with the application to condone the delay, an appeal lies against the order of dismissal and A.I.R. 1942 Madras 604, distinguished. In such cases by dismissing the application for condoning the delay and filing appeal and dismissing the appeal as time-barred amounts to confirming the Judgment and decree passed by the trial court which after such dismissal of the appeal cannot be denied by the trial court. In such cases by dismissing the application for condoning the delay and filing appeal and dismissing the appeal as time-barred amounts to confirming the Judgment and decree passed by the trial court which after such dismissal of the appeal cannot be denied by the trial court. The reasons given were that when a suit is filed and is dismissed after a number is given to it on the ground that it is barred by time it cannot be said that no appeal lies against that Judgment and decree of the trial court. Even if a plaint if rejected under order VII, Rule 11 of the C.P.C. appeal lies because that order amounts to a decree. If an appeal is rejected as time barred and is not admitted to a number then only a revision lies against such order but when an appeal is numbered and application for condoning the delay is rejected and the appeal is dismissed as time barred. In such cases second appeal lies and revision does not lie, therefore, I hold that this second appeal is maintainable. 5. It was argued that the first appeal was filed on January 31, 1972 and knowledge was alleged to be of January 4, 1972 and from the date of the knowledge the first appeal was within time and the application accompanied with affidavit (which are missing from the file of the first appellate court although they were on the file when the first appellate court passed the order in question on April 17, 1974, as has been mentioned in that order) for condoning delay was only superfluous. It has been argued that where the rights of the persons are ejected by an order an a decree and limitation is prescribed for the enforcement of the remedy by person aggrieved against the said order by reference making of the said order the order must seen either actual or constructive, communication of the said order to the parties concerned. In this case ex parte decree was passed on March 29, 1971. Appellant had no personal service and on substituted service by publication that decree was passed, therefore, the alleged knowledge of January 4, 1972 coupled with affidavit should not have been ignored by the appellate court. In this case ex parte decree was passed on March 29, 1971. Appellant had no personal service and on substituted service by publication that decree was passed, therefore, the alleged knowledge of January 4, 1972 coupled with affidavit should not have been ignored by the appellate court. In reply it was argued that Dakhal was taken on November 10, 1971 which amounted to knowledge of the appellant and, therefore, the appeal was time barred. In reply it was argued that the knowledge does not show that the appellant had knowledge. He had not signed. No notice in writing was given to him regarding execution of the ex parte decree and no report of refusing to sign the Dakhalnama for delivery of possession was made, therefore, mandatory provisions of Rule 337 of the Revenue Court Manual were not complied with and they cannot be ignored and no knowledge can be presumed to the appellant. Reliance was placed on 1951 R.D. 197, 1961 S.C. 1500, 1967 R.D. 40, 1979 A.W.C. 18 and 1975 (2) SCC 779 . 6. It was replied on behalf of the respondent that from Dakhal knowledge will be presumed and judicial discretion in granting or dismissing application under Section 5 cannot be looked into by higher court and reliance was placed on 1977 R.D. 356 and 1956 Alld. 667. 7. In my considered opinion in view of 1951 S.C. 1500:- "Where the rights or a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by the Collector or under Section 12 of the Land Acquisition Act, 1894, either actual or constructive is an essential requirement of fairplay and natural justice. Therefore the expression 'to date of the award' used in proviso (b) of Section 18(2) of the Act must mean the date when the award is either communicated to the party or is known by him either actually or constructively. Therefore the expression 'to date of the award' used in proviso (b) of Section 18(2) of the Act must mean the date when the award is either communicated to the party or is known by him either actually or constructively. "Interpreting the expression 'date or order', the Supreme Court in Madan Lal v. State of U.P., 1975 (2) SCC 799, held that the limitation for filing an appeal runs from the date of the knowledge of the order and not from the date on which the order itself was made. In taking this view, the Supreme Court had followed it earlier decision in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer, A.I.R. 1961 S.C. 1500." 7-A. In the present case the appellant had no knowledge of the ex parte decree dated March 29, 1971 as it was an ex parte decree and he had no personal service and date of this decree was not communicated to the appellant, therefore, in the present case limitation shall run against him for filing appeal or for filing application under order IX, Rule 13, C.P.C. for setting aside the ex parte decree from the date of the knowledge and not from the date of the decree or order. Both the remedies either of filing the application under Order IX, Rule 13, C.P.C. or filing the first appeal as provided under Rule 339 (2) of the U.P. Z.A. and L.R. Rules were available to the appellant and in sub-rule 2 which runs as follows:- "(2) In respect of the suit or proceedings mentioned in sub-rule (1) the first appeal shall lie within thirty days of the date of the decree or order appealed against and the second appeal, if any, shall lie within ninety days of the date of the decree or order passed by the court of first appeal." The date of the decree or order means the knowledge of the dates of the decree or order and not the date of decree itself. 8. Now the question remains whether knowledge can be imputed to the appellant from November 10, 1971 the date of Dakhal. In my considered opinion as the provisions of Rule 337 of Revenue Court Manual were not complied with. 8. Now the question remains whether knowledge can be imputed to the appellant from November 10, 1971 the date of Dakhal. In my considered opinion as the provisions of Rule 337 of Revenue Court Manual were not complied with. No written notice of the Dakhal was given to the appellant and there is no evidence that he had refused to sign he Dakhal as there is no report of the Amin regarding it. This omission of mandatory provisions regarding Dakhal Cannot be brushed aside lightly an no knowledge to the appellant can be imputed that the Dakhal was taken on November 10, 1971. In such cases where the appellant had given affidavit that he came to know of the decree only on January 4, 1972 and no counter affidavit was given. Dakhalnama executed without adhering to the said provisions of Rule 337 of the Revenue Court Manual and non-compliance of Rule 154 of the U.P. Z.A. and L.R. Rules which are framed for safeguarding the interest of judgment-debtor and avoiding complications are if not complied with, no presumption can be drawn against judgment-debtors and no knowledge can be presumed to them and in view of these circumstances the first appellate court committed illegality in not allowing the application under Section 5 or in not upholding the alleged knowledge to the from January 4, 1972 which was supported with affidavit, therefore this appeal is liable to be allowed and the Judgment and decree and order of both the courts below are liable to be set aside. 9. In view of the above, this appeal is allowed with costs. The Judgment and decree and order dated April 17, 1974 passed by the first appellate court and the Judgment and ex parte decree dated March 29, 1971 by the trial court are hereby set aside. The appellant is allowed to file written statement in the trial court and the trial court shall proceed to decide the suit according to law. Parties shall appeal in the trial court on November 19, 1979. Learned counsel for parties have been informed of this date.