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Rajasthan High Court · body

1998 DIGILAW 45 (RAJ)

Firm Ganesh Traders Bombay v. Rohida Industries

1998-01-09

SHIV KUMAR SHARMA

body1998
Honble SHARMA, J.–Instant Misc. Appeal impuges the order dt. 26.2.1992 of the learned Additional District Judge, No. 1 Kota, whereby the application of the appellant submitted u/0. 9, R. 13 r/w. Sec. 151 CPC, and Secs. 14 & 5 of the Limitation Act was dismissed. (2). The plaintiff respondent (for short the plaintiff) instituted suit for the reco- very of Rs. 42,799.19 paisa against the defendant appellant (for short the defendant). Summons sent through registered post was received by the defendant on 19.5.1988 whereas the next date in the trial Court was 21.5.1988. The defendant did not appear and sent telegram seeking adjournment. Learned trial Court however passed exparte order on 16.7.1988 and thereafter passed exparte decree on 10.8.89. In the execution proceedings of the said decree the goods of the defendant were attached at Bombay. The defendant raised objections to the attachment of the goods on the ground that the defendant was not properly served and the Court at Kota had no jurisdiction to entertain the suit. The civil Court at Bombay where the execution case was transferred, vacated the attachment order subject to the defen- dant depositing Rs. 50,000/-. Finally learned Civil Judge Bombay on 19.1.1991 rejected the objections raised by the defendant. An appeal thereafter was preferred by the defendant before the High Court at Bombay and the same was dismissed by the High Court on 4.2.1991. (3). In the meantime the defendant moved an application for setting aside ex- parte decree before the trial Court on 31.1.1991 u/O. 9, R. 13 r/w. Secs. 14 & 5 of the Limitation Act, which was dismissed as mentioned hereinabove. (4). Mr. Sagar Mal Mehta, learned Sr. Advocate strenuously contended that the defendant was vigilantly pursuing the matter before the Courts at Bombay and delay infiling the application ought to have been condoned u/Ss. 5 & 14 of the Limitation Act. The summons was served upon the defendant on 19.5.1988 for putting appearance before the trial Court on 21.5.1988 in the morning at 7 a.m. and it was not humanly possible for the defendant to reach Kota in such a short time therefore telegram was sent by him. Under these circumstances, the trial Court ought to have sent another summons u/0. 9, R 6(3) CPC. The Court having failed to do so could not have passed exparte decree. Under these circumstances, the trial Court ought to have sent another summons u/0. 9, R 6(3) CPC. The Court having failed to do so could not have passed exparte decree. lhe summons at the outset ought to have been served through process of the Court and thereafter alternative mode of serving by registered post could have been adopted. -Having failed to do so the Court flouted the legal provisions and summons served on 19.5.1988 on the defendant cannot be said legal service in the eye of law. (5). Mr. J.S. Rastogi, learned counsel appearing for the defendant on the other hand supported the impugned order and canvassed that application being time barred was rightly rejected. He further contended that even if there was irregularity in the service of summons, the exparte decree could not have been set aside in view of proviso of O. 9, R. 15 CPC. Reliance was placed on Nath Mal vs. Sanwalram, (1), Zafar Khan vs. Board of Revenue UP (2) and Rabindra Nath vs. Sivakasi (3). (6). I have given my thoughtful consideration to the rival contentions and carefully perused the record. (7). Article 123 of the Limitation Act envisages that the Limitation would run from the date of decree, or where the summons or notice was not duly served, when the appellant had knowledge of the decree. (8). A perusal of O.5, R.6 and O.9, R.6(c) is also necessary in the facts and circumstances of this case O.5, R.6 provides thus - ``6. Fixing day for appearance of defendant–The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendants and the time necessary for the service of the summons; and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day." (9). Order 9 Rule 6(1)(c) provides thus- ``6. Order 9 Rule 6(1)(c) provides thus- ``6. Procedure when only plaintiff appears–(1) Where the plaintiff appears and the defendant does not appear when the suit called on for hearing, them- (a) when summons duly served- (b) when summons not duly served- (c) when summons served but not in due time-If it is proved that the summons was served on the defendant but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court and shall direct notice of such day to be given to the defendant. (10). Gauhati University vs. Nihar Lal Bhattacharjee (4) was the case where their Lordships of the Supreme Court had occasion to examine the provisions contained in O.9, R.6(1)(c) and Sec. 123 of the Limitation Act. It was laid down that- ``It would thus be seen that when the summons is proved to be duly served, then the limitation begins to run u/Art. 123 from the date of decree. But when the summons though served but the defendant does not have due time, clause (c) of R.6 of O.9 envisages further notice to be given, fixing a future date and the Court shall direct notice of such date to be given to the defendant. In this case, admittedly, no such step had been taken. It is seen that though notice was served on the appellant on 28.5.1990 and the date was fixed for appearance was 29.5.1990, there was no time, much less sufficient, to reach the Court for appearance on that date. While adjourning the suit to 19.7.1990, the said date was not communicated to the appellant, as envisaged in clause (c) of R. 6 of 0. 9. Thus, the summons was not duly served. The limitation began to run only when the appellant had knowledge of the exparte decree. (11). In the case on hand, admittedly the summons was served upon the defendant at Bombay on 19.5.1988 and he was to appear in the trial Court on 21.5.88 at 7.a.m. The defendant did not have sufficient time to enable him to appear and answer on the day fixed in the summons. (11). In the case on hand, admittedly the summons was served upon the defendant at Bombay on 19.5.1988 and he was to appear in the trial Court on 21.5.88 at 7.a.m. The defendant did not have sufficient time to enable him to appear and answer on the day fixed in the summons. Therefore it was incumbent upon the trial Court to postpone the hearing of the suit and to communicate the next date to the defendant as envisaged in clause (c) of R. 6(1) of 0. 9. The trial Court did not follow the mandatory provisions and it can safely be held that summons was not duly ser- ved on the defendant and the limitation began to run only when the defendant had knowledge of the exparte decree. (12). This takes me to the next question whether provisions of Sec.14 of the Limitation Act are applicable in the instant case ? (13). Indisputably, the defendant spent time in raising objections before the civil Court at Bombay, where the execution case was transferred and in the High Court assailing the order of the civil Court. The High Court dismissed the appeal on 4.2.1991 but before the said dismissal the defendant moved application before the learned trial Court at Kota on 31.1.1991 for setting aside exparte decree. (14). In order to attract the application of Sec. 14(1) of the Limitation Act, the defendant had to satisfy the Court that - (i) he was prosecuting another civil proceeding with due diligence, (ii) the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (15). In Zafar Khan vs. Board of Revenue (supra) their Lordships of the Supreme Court propounded thus- ``If the party seeking benefit of the provisions of Sec.14 failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of Sec.14. (16). Nath Mal vs. Sanwal Ram (supra) was the case where the D.B. of this Court indicated that a party cannot be allowed benefit of Sec. 14 of the Limitation Act when his previous application was dismissed on merit and not due to defect of jurisdiction. (17). (16). Nath Mal vs. Sanwal Ram (supra) was the case where the D.B. of this Court indicated that a party cannot be allowed benefit of Sec. 14 of the Limitation Act when his previous application was dismissed on merit and not due to defect of jurisdiction. (17). Similar view was expressed by their Lordships of the Supreme Court in Rabindra Nath vs. Siva Kasi & Ors. (supra) (18). As per averments of the application, the defendant came to know about the exparte decree on 18.4.1990, and on 24.4.1990, the defendantsubmitted objection petition in the civil Court at Bombay. The petition was dismissed on 19.1.1991. The defendant assailed the order of the civil Court by filing appeal in the High Court at Bombay and during the pendency of the said appeal, the defendant submitted application u/0. 9, R. 13, for setting aside exparte decree before the trial Court at Kota on 31.1.1991. The High Court at Bombay dismissed the appeal on 4. 2.1991. In my considered view the defendant filed objection petition before the civil Court at Bombay with due diligence and in good faith. Though the said objections were dis- missed on merits but this does not debar the defendant from moving an application u/0. 9, R. 13. The cases cited at Bar are distinguishable and not applicable to case on hand. Even if I exclude the provisions of Sec. 14 of the Limitation Act, the applicability of Sec. 5 of Limitation Act cannot be excluded. The Court should be liberal in allowing the applications for condonation of delay as has been propoun- ded by the Supreme Court in Collector Land Acquisition vs. Mst. Katiji (5). In the peculiar facts and circumstances of the case, the delay in filing the application was bonafide and it ought to have been condoned u/s. 5 of the Limitation Act. 1 am of the considered opinion that the learned trial Court committed illegality in dismissing the application of the defendant. (19). Consequently, the appeal succeeds and is hereby allowed and the impugned order is quashed. The delay is condoned and the application u/O.9, R.13 CPC is allowed and the exparte decree dt. 10.8.1989 stands set aside. The matter is remitted to the trial Court which would take such steps as are needed for filing the written statement etc. The parties are directed to appear before the trial Court on 29.1.1998. The delay is condoned and the application u/O.9, R.13 CPC is allowed and the exparte decree dt. 10.8.1989 stands set aside. The matter is remitted to the trial Court which would take such steps as are needed for filing the written statement etc. The parties are directed to appear before the trial Court on 29.1.1998. Record of the case be sent back forthwith. Costs easy.