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2000 DIGILAW 294 (JK)

Harbans Lal v. Ramesh Chander

2000-12-13

T.S.DOABIA

body2000
1. This petition has been preferred against an order passed by the District Judge Jammu whereby an appeal preferred by the present petitioner against an order passed by Sub-Registrar Munsiff Jammu stands dismissed. Circumstances under which this litigation has come to this court be noticed. 2. The present petitioner suffered an exparte decree. An application for setting aside the same was filed. Plea taken by the petitioner was that he was not served with the plaint, he also stated that he was a member of Defence Services. As he had no knowledge he was unable to appear, he stated that he acquired knowledge of the decree on 26.12.91 and preferred a petition for setting aside exparte proceedings on 28.12.1991. It was pleaded by him that the limitation should be counted from the date of .knowledge. According to him he acquired effective knowledge on 26.12.91. This plea of his did not find favour with by the trial court. First appellate court has also refused to accept the explanation given by the petitioner, it is this factor which led to the dismissal of his application. Petitioner has approached this court now. 3. The petitioner wrote a letter to the Deputy Commissioner, Jammu. it is this factor which led the courts below to come to the conclusion that the petitioner came to know about the decree on a date earlier to 26.12.91. This letter stands reproduced in the order passed by the District Judge. This is being reproduced below again. "This land I had purchased from Bhagat Ram during Mar/Apr 1973 who earlier had purchased from Ayodya Parkash of Goal. Ayodhya Parkash has since been died long time back, it is now learned from the Patwari of Goal during first week of oct 91 that one Ramesh Kumar, s/ o Late Ayodhya Parkash has obtained exparte decree on my land during 1988 through munsiff Court but no date is known. Neither me nor my person Shri Bam Ram who is looking after the piece of land at Goel has been informed by the above party." 4. As per the petitioner this information was a vague information. This could not be equated with effective knowledge. Effective knowledge the petitioner submits he acquired on 26.12.1991. Neither me nor my person Shri Bam Ram who is looking after the piece of land at Goel has been informed by the above party." 4. As per the petitioner this information was a vague information. This could not be equated with effective knowledge. Effective knowledge the petitioner submits he acquired on 26.12.1991. He submits that limitation should be counted accordingly with a view to put across his point of view the petitioner has placed reliance on a decision of this court in 1983 KLJ Hoshiar Singh vs Smt Inder Parkash Devi. Specific reliance ii being placed on the following observation made by this court: "(4) It is true that before time may start riming against the defendant it has to be shown that the knowledge of the decree which had acquired was not merely a vague knowledge that some decree has been passed against him by some court but a knowledge that a particular decree has been passed against him by a particular court in favour of a particular person. Nevertheless imputation of such knowledge to the defendant is not a matter of form but a matter of sustanee and each case shall have to be decided on its own peculiar facts and circumstances, this principle was succinctly laid down by their lordships in Panna Lals case (supra) wherein it was further observed: "The test of the sufficiency is not what the information would means to the stranger, but what it meant to the defendant in the light of the 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 Art. 164. it is not necessary that a copy of the decree should be served on the defendant. 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." 5. I am of the opinion that the ratio of decision taken in Hoshiar Singhs case would apply to this case. 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." 5. I am of the opinion that the ratio of decision taken in Hoshiar Singhs case would apply to this case. The letter on which reliance was placed by the District Judge Jammu does not indicate that the petitioner had full knowledge about the date of decree or the court which had passed the decree. For this he had to search for. This he did search in the intervening period. Circumstances of a traditional rural family can be taken note of while examining the question of delay in the matter of condoning limitation. In the case reported as Sital Prasad vs. Union of India AIR 1985 SC 1 this factor was taken note of and the delay was condoned. This was a case where there was failure to file application in terms of O.XXII Rules 3 and 9 What weighed with the court was that a legal heir may not be aware of the legal provisions. In (1997) 1 SCC 261 the appellant was illiterate and was unable to get proper legal advice. Delay was condoned. In Sangram Singh v/s Election Tribunal, Kotah AIR 1953 SC 425, the Supreme Court observed that the Code of Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. This view was followed in Bhagwan Swaroop v/s Mool Chand AIR 1983 SC 355. To the same effect is the view expressed in Kalipar Das v/s Bimal Krishna Sen, (1983) 1 SCC 14. InGangadharv/sRaj Kumar AIR 1983 SC 1202 the view expressed in Bhagwan Swaroop v/s Mool chand was followed. 6. A perusal of the aforementioned judicial pronouncements would indicate that the rules of procedure should not be construed in a manner that they have harsh and penal consequences. The present litigation does not disclose that the petitioner has been dealt with harshly. He was not aware of the court which decided the same. This knowledge he acquired on 26.12.1991. Thereafter, he filed an application for setting aside of ex-parte proceedings on 28.12.1991. The present litigation does not disclose that the petitioner has been dealt with harshly. He was not aware of the court which decided the same. This knowledge he acquired on 26.12.1991. Thereafter, he filed an application for setting aside of ex-parte proceedings on 28.12.1991. If this be the position, then the order passed by the courts below refusing to set aside exparte proceedings cannot be sustained. This petition is allowed. Ex-parte judgement and decree passed by the trial court is set aside, parties to appear before the trial court on 31.01.2001 on that date, the respondents would furnish copy of the plaint to the petitioner, trial court would fix a date for filing of written statement in the suit. The date so fixed would not be later than four weeks. The trial court to expedite the trial.