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Chhattisgarh High Court · body

2001 DIGILAW 22 (CHH)

TIMANLAL SAHU v. SHIVCHARAN LAI SAHU

2001-03-05

R.S.GARG

body2001
R. S. GARG, J. ( 1 ) BY this petition under section 115, Civil Procedure Code, the applicant/plaintiff seeks to challenge the correctness, validity and propriety of the order dated 21. 12. 1998 passed in M. J. C. No. 17 of 1993 by learned Fourth Additional District Judge, bilaspur, setting aside the ex-parte decree passed in favour of the present applicant in civil Suit No. 32-A of 1990. ( 2 ) IT is not in dispute before me that the present plaintiff filed Civil Suit No. 32-A of 1990. In the said suit the summons were duly served upon the defendant who made his appearance through his Counsel but later on proposed to remain ex-parte, therefore, vide order dated 30-1-1992 the Court proceeded ex-parte, recorded ex parte evidence of the plaintiff and his witnesses and delivered the ex-parte judgment on 24-8-1992. ( 3 ) ALMOST after about one year of the ex-parte judgment and decree the defendant/non-applicant made an application under Order 9 rule 13, C. P. C. seeking the relief of setting aside of the ex parte judgment and decree. Along with the said application an application under Section 5 of the limitation Act, 1963 was also filed. In the said applications it was inter alia pleaded that the applicant was informed by his Counsel that the suit stood dismissed, therefore, misinterpreting the word that the two suits which were pending trial have been dismissed the defendant stopped appearing in the Court. It is not dispute before me that against the present applicant Civil Suit Nos. 32-A of 1990 and 36-A of 1989 (old No. 23a of 1976) were pending. It is also not in dispute before me that both the suits were to be decided simultaneously but Civil Suit No. 36a of 1989 was dismissed for want of prosecution. The defendant submitted before the Trial court that it was informed by his Counsel that the suit was dismissed, therefore, he took it for granted that both the suits were dismissed. But as he was later on told that Civil Suit No. 36-A of 1989 alone was dismissed and an ex-parte decree was granted aginast him in Civil suit No. 320a of 1990 he was required to make an application for setting aside ex-parte decree. But as he was later on told that Civil Suit No. 36-A of 1989 alone was dismissed and an ex-parte decree was granted aginast him in Civil suit No. 320a of 1990 he was required to make an application for setting aside ex-parte decree. In support of the application the defendant filed his affidavit but as the allegations were controverted by the plaintiff the Trial court made an enquiry into the subject. The defendant apart from examining his own self also examined his witnesses in support of his contention; the plaintiff did not choose to enter in the witness box. The Trial Court after hearing the parties came to the conclusion that the applicant was prevented by sufficient cause from making his appearance at the time when the suit was taken up for hearing and as there was further sufficient cause for not making an application in time the delay in making the application for setting aside the ex-parte decree deserved to be condoned. It accordingly allowed both the applications, condoned the delay and set aside the ex-parte decree. Being aggrieved by the said order dated 21. 12. 1998 the plaintiff/decree holder has come to this court challenging the correctness, validity and propriety of the said order. ( 4 ) MR. Shrikant Agrawal, learned Counsel for the applicant, submits that in accordance with the language of Article 123 of the indian Limitation Act the starting point of limitation for making an application for setting aside the decree would depend upon particular facts of the case. According to him if no summons are served or if it is proved to the satisfaction of the Court that the summons are not served upon the defendant then the starting point of the limitation would be the date of the knowledge but in a case where the summons were duly served then the starting point of the limitation would be the date of the decree and not the date of the knowledge. Continuing further he submits that as the two different situations have been envisaged under article 123 itself there is no scope for application of section 5 of the Indian Limitation Act because if Section 5 of the Indian Limitation act is held applicable to an application/proceedings under Order 9 Rule 13, C. P C. then the purpose of Article 123 of the Indian Limitation Act would stand defeated. He submits that as the summons were duly served upon the defendant and as the application was not filed within 30 days from the date of the decree the application was barred by limitation and as Section 5 of the Indian Limitation Act does not apply to these proceedings the application deserved rejection. ( 5 ) MR. Sanjay K. Agrawal, learned Counsel for the non-applicant, submits that a bare reading of Article 123 would show that it talks of two different situations but it does not say that the provisions of Section 5 of the Indian limitation Act would not be applicable to these proceedings. According to him whenever the law provides that delay in instituting the proceedings or submitting the application can be condoned then in such a situation Section 5 of the Indian Limitation Act would always be applicable. He submits that in the absence of any evidence contrary to the statements of the defendant, the Court below was absolutely justified in condoning the delay and setting aside the ex-parte decree. ( 6 ) I have heard the parties at length and have perused the records. ( 7 ) ARTICLE 123 of the Indian Limitation act provides that to set aside a decree passed ex-parte or to rehear an appeal decreed or heard ex-parte the limitation would be 30 days and the starting point of the limitation would be the date of the knowledge where the summons or notice was not duly served, but in a case where the applicant was duly served and had the knowledge of the decree then the starting point of the limitation would be the date of the decree. A fair perusal and understanding of Article 123 would mean that where the summons are not served or it is shown to the Court as a fact that the summons were not served upon the defendant or where it is shown to the Court that the summons were not served in accordance with law or in accordance with the provisions of Order 5, C. P. C. then the starting point of the limitation would be the date of the knowledge of the decree. The logic behind article 123 simply is that if the summons are not served then the person has no knowledge about the pendency of the suit or passing of the decree on the date when the decree is passed and if the summons are not served in accordance with law then under the provisions of Order 5 it would be presumed that no summons were served upon the defendant because when the law provides that a thing is to be done in a particular manner then the said thing is to be done in that manner only and not at all. Second limb of Article 123 provides that where the summons were served upon the defendant but despite service of the summons he proposed to remain ex-parte then in such a sitution he cannot. submit before the Court that the limitation would start running from the date of his knowledge and not from the date of the decree. In a case like this, the defendant cannot be permitted to say that the limitation would start running from the date of the knowledge and not from the date of the decree because he had the knowledge of the pendency of the proceedings as the summons were served upon him in accordance with law and the said service was legal and valid. So far as the above interpretation is concerned, no judgment of any Court is required to make this explicit because the same is implicit in the very language of Article 123 of the Indian Limitation Act. ( 8 ) THE question for consideration is whether the provisions of Section 5 of the Indian Limitation act would apply to an application filed under order 9 Rule 13, C. P. C. beyond the period of limitation. ( 9 ) FOR proper appreciation of this argument, provisions of Section 5 of the Indian limitation Act and Order 9 Rule 13, C. P. C. are required to be seen. ( 10 ) SECTION 5 of the Indian Limitation Act reads as under:"5. ( 9 ) FOR proper appreciation of this argument, provisions of Section 5 of the Indian limitation Act and Order 9 Rule 13, C. P. C. are required to be seen. ( 10 ) SECTION 5 of the Indian Limitation Act reads as under:"5. Extension of prescribed period in certain cases-Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, (5 of 1908) may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. "section 5 of the Limitation Act provides that the provisions would be applicable to any appeal or any application other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908. The section further provides that any appeal or any application may be admitted after the prescribed period if the said appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. The Explanation appended to Section 5 of the indian Limitation Act further says that if a person was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be treated to be a sufficient cause within the meaning of Section 5 of the Indian Limitation Act. ( 11 ) AT this stage a reference to Section 29 of the Indian Limitation Act which is a savings clause would also be useful. Section 29 of the Indian Limitation Act reads as under:"29. Sauings.- (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescibed by the Schedule, the provisions of Section 3 shall apply as if such period where the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of "easement" in Section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extended. "sub-section (2) of Section 29 of the Indian Limitation Act provides that where the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. ( 12 ) FROM the very language of Section 5 of the Indian Limitation Act it would be crystal clear that the provisions of this section would be applicable not only to an appeal but would also apply to 'application'. ( 13 ) AN application under Order 22, Rule 3 or Order 22, Rule 4, C. P. C. is required to be made within a period of 90 days from the date of the death. If such application is not filed the suit would abate automatically. Within a period of further 60 days an application for setting aside the abatement can be filed under order 22 Rule 9, C. P. C. If such an application is also not filed and there is a further delay then an application under Section 5 of the indian Limitation Act is always maintainable and the Court can always condone the delay in the deserving cases. Order 22 Rule 3 or rule 4 or Rule 9 do not in terms say that the provisions of Section 5 of the Indian Limitation Act would be applicable to such an application but because of the very language of secton 5 of the Indian Limitation Act these proceedings and applications are taken within the purview of Section 5 of the Indian Limitation Act. The law always says that a person is not remediless. Whenever there is a right there is a remedy. The law always says that a person is not remediless. Whenever there is a right there is a remedy. If within the prescribed period of limitation the right is not exercised the remedy is lost but the right continues to remain but if there is provision for condonation of delay and the said provisions apply to such proceedings then by no stretch of imagination it can be said that an application under Section 5 of the indian Limitation Act would not be maintainable in a case where otherwise the law says that such a provision would be applicable. ( 14 ) AT this stage it would be apt to refer to the provisions contained in Rule 13 of Order 9, C. P. C. Rule 13 reads as under:"rule 13-Setting aside decree ex-parts against defendants.-In any case in which a decree is passed ex-parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the sum-mons was not duly served, or that (B, mp, OR) he was prevented by any sufficient cause from appearing when the suit was called for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: provided that where the decree is of such nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: provided further, that no Court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. " ( 15 ) IT says that when a decree is passed ex-parte against the defendant and the decree is ex-parte he may apply to the Court by which the decree was passed for an order to set it aside and on his satisfying the Court that the summons were not served or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the court shall make an order setting aside the decree as against him. ( 16 ) THE very language of Rule 13 of Order 9, C. P. C. does not exclude the application of Section 5 of the Indian Limitation Act. The provisions cannot be ostracized. The provisions are to be read in juxtaposition. When the law provides that the delay in submitting an application can be condoned by the Court then none including the Court has authority to say that such an enabling provision cannot be read in the substantial provision. ( 17 ) AT this stage it would also be necessary to refer to the provisions of Section 141 of the Code of Civil Procedure. Section 141 of the" Code of Civil Procedure refers to the miscellaneous proceedings. It says that the procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. The Explanation appended to Section 141 further clarifies the provisions by saying that in section 141 the expression "proceedings" includes proceedings under Order 9 of the Code of Civil Procedure, but does not include any proceeding under Article 226 of the Constitution of India. ( 18 ) AN application under Order 9, Rule 13, C. P. C. though is not a suit but in fact is a competent proceeding before a Court of competent jurisdiction. For making an enquiry into the sufficiency of the cause either for condonation of delay or for setting aside the ex -parte decree the Court is required to make an enquiry either a regular or summary, but an enquiry is required to be made. If the party is desirous to lead oral evidence then the Court is bound to grant him an opportunity to prove his case by leading oral evidence. If the party is desirous to lead oral evidence then the Court is bound to grant him an opportunity to prove his case by leading oral evidence. In fact, proceedings under Order 9 Rule 9 or Order 9 Rule 13, C. P. C. always have trappings of civil suit. Though these are not registered as a civil suit and are registered as M. J. C. but are treated as "proceedings" under the Code of Civil Procedure. These are competent proceedings before the competent Court of Law. When the limitation Act provides that the provisions of section 5 would be applicable to any suit or application then it cannot be argued that the provisions of Section 5 of the Indian Limitation Act would not be applicable to proceedings under Order 9 Rule 13, C. P. C. ( 19 ) IN a given case, the defendant may always appear before the Court and say that he acquired the knowledge on a particular date but subsequent to the acquisition of the knowledge, for particular reasons which may. be treated to be sufficient cause, he could not make an application for setting aside the ex-parte decree, therefore, the delay which occurred between the date of the knowledge and the date of the application deserves to be condoned. The intention of the Legislature for making Section 5 of the Indian Limitation Act applicable to the civil suits and the proceedings is writ large. The law says that if a person for non of his lapses or for reasons beyond his control is unable to take part in the proceedings or could not do what was required to be done witin limitation then his pathetic condition should not provide a premium in favour of the other party. The submission of the learned Counsel for the applicant that if Section 5 of the Indian Limitation Act is made applicable to proceedings instituted under order 9 Rule 13, C. P. C. then it would leave no distinction between two contingencies provided under article 123 of the Indian Limitation Act is concerned, is misconceived. These provisions stand on different pedestals. In the first case the Court even without an application under Section 5 of the Limitation Act can set aside ex-parte decree, provided it is satisfied and records a finding that the summons were not served or were not duly served or were not served in accordance with law. These provisions stand on different pedestals. In the first case the Court even without an application under Section 5 of the Limitation Act can set aside ex-parte decree, provided it is satisfied and records a finding that the summons were not served or were not duly served or were not served in accordance with law. In such a case the limitation would start from the date of knowledge. In a case where the person says that summons were served upon him but for a particular reason on the date when the suit was taken up for hearing he could not appearing and thereafter he was prevented by further sufficient cause from making an application within limitation then in such a matter the Court finding a sufficient cause, after recording a finding to this effect can always condone the delay in making the application and may set aside the decree which was passed ex-parte. ( 20 ) AS no arguments were advanced on the factual foundations, it is not necessary to consider the same. ( 21 ) THE submission of the learned Counsel for the applicant runs contrary to the provisions of law. It cannot be accepted. The petition deserves to and is accordingly dismissed. Revision dismissed. --- *** --- .