Research › Browse › Judgment

Allahabad High Court · body

1982 DIGILAW 8 (ALL)

Rikhu v. Charittar

1982-01-04

KAUSHAL KISHORE

body1982
JUDGMENT Kaushal Kishore, Member - In this reference dated 30.10.1973, the learned Additional Commissioner, Gorakhpur Division, Gorakhpur, has recommended that the order of the learned trial court dated 8-7-1971, setting aside the ex-parte decree passed on 11-9-1983, may be set aside and the case may be remanded to the trial court for a fresh decision after giving a finding whether the application was time-barred or not and whether it was presented without undue delay after receiving information of the ex-parte decree. 2. I have heard the learned counsel for the applicant and have also perused the record. None approved for the opposite-party. 3. The learned counsel has argued that the opposite party had due notice before the suit was dismissed in default of the plaintiff on 24.4.1963 and on restoration of the suit, there was no need to send fresh notice to the defendants since there were orders of the court on 16-4-60 to proceed ex-parte against the defendants and this order remained in force even after restoration, In support, he cited a ruling reported in AIR 1966 Patna 271 in which case it was held that after dismissal in default when a suit is restored, the incidental orders passed earlier are also revived. In that case, the incidental order was an stay order. 4. Two questions arise for determination in this revision, whether fresh notice was required to be served on the defendant after restoration of the suit, and whether condonation of delay is involved in this case. In respect of the first question it is observed that before the suit was dismissed in default, the defendants had not been personally served and admittedly those was substituted service on all the defendants. This is sufficient for proceeding with the case and so order for ex-parte hearing was passed on 16-4-1963. This order was not an incidental order of the nature of stay order and ? after restoration it was necessary to issue fresh notice to the defendants. Proceeding ex-parte against the defendants takes away a valuable right of the defendants-a right to be heard-and cannot be called just an incidental order. My considered view is that the quoted ruling (AIR 1956 Patna 271) can be distinguished and is not applicable to the circumstances of the instant case. Proceeding ex-parte against the defendants takes away a valuable right of the defendants-a right to be heard-and cannot be called just an incidental order. My considered view is that the quoted ruling (AIR 1956 Patna 271) can be distinguished and is not applicable to the circumstances of the instant case. The order passed on 16-4-1963, therefore, extinguished on the next date 24-4-1963 with the dismissal in default of the plaintiff himself, and was not revived on 15-7-1963 with the restoration of the suit. It must be deemed in the circumstances that the defendant had no knowledge of the proceedings. This inference brings us to the second question posed above. 5. The above inference is also strengthened by the provision contained in the Schedule Third Division Article no. 123 appended to the Limitation Act, 1963. The limitation provided for applications to set aside ex-parte decree is 30 days from the date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree. Further, the explanation reads, "For the purpose of this article substituted service under rule 20 of Order V of the Code of Civil Procedure, 1908, shall not be deemed to be due service". The learned Additional Commissioner appears to have overlooked this provision and cherished a misconception that the defendants had been served earlier for all purposes. The learned trial court has narrated the details and rightly found that there was no service on the defendants and so restored that suit. For the consideration of setting aside ex-parte decree, the substituted service, if any, has just to be ignored and the date of knowledge will be as proved otherwise. The defendant had explained by his affidavit that he got parcha 5 chakbandi on 15-9-1970, got records inspected on 25-9-1970 and then came to know of the ex-parte decree against him. These facts were not specifically controverted by the revisionist, who only stated in a general manner in his affidavit that the defendant had knowledge from the beginning of the suit and gave no specific date of knowledge. Obviously, the revisionist also relied on the substituted service. In support of his argument that the trial court has not discussed the date of knowledge and the question of limitation, the learned counsel has cited a ruling reported in AIR 1976 Alld. 159. Obviously, the revisionist also relied on the substituted service. In support of his argument that the trial court has not discussed the date of knowledge and the question of limitation, the learned counsel has cited a ruling reported in AIR 1976 Alld. 159. This deals mostly with the question of condonation of delay. No doubt, when condonation of delay is involved, discussion of date of knowledge and limitation is important. 6. In the instant case the facts are simple and evidently the question of delay was not involved. No explanation of the whole intervening period or proof of sufficient cause was required and the ruling is not applicable to the facts of the instant case. It is irrelevant to say that a long period of seven years had elapsed, the plaintiff/revisionist himself was responsible for getting the ex-parte decree without due service on the defendants and the defendants did not have to explain the intervening whole period occasioned for default by the plaintiff. It is incorrect to say that the trial court gave no finding as to the date of knowledge, the order shows that he accepted the version of Mata Badal without expressly stating so, and this version being complete and satisfactory, it leaves nothing to be added. The application being within 30 days from the date of knowledge 15-9-70. no specific finding about the application being within time was needed. The facts were obvious enough. 7. As discussed above, I find no illegality, material irregularity or error in the exercise of jurisdiction by the learned trial court and see no need to remand the case for any purpose. In view of the position, the reference is not acceptable. 8. The revision petition is without force and is dismissed with costs. The records of the courts below may be returned without delay.