SHANTABAI Vs. PREMALABAI AND OTHERS

JUDGEMENT

(1.) THIS revision petition arises from the judgment and order dated 3.2.1995 passed by the Civil Judge, Basavakalyan, in Miscellaneous Appeal No. 5 of 1994 whereby the Appellate Court had dismissed the Defendants' appeal and has affirmed the order of the trial Court dated 24.1.1994 passed in Miscellaneous Case No. 46 of 1992.

(2.) THE facts of the case in short are that suit No. 77 of 1976 was filed against the revision Petitioner and others in the Court of Munsiff, Humnabad, and later on it was registered as O.S. No. 73 of 1983 on being transferred to the Court of Civil Judge, Bidar. Later on when the pecuniary jurisdiction of the Munsiff was enhanced to Rs. 50,000.00, the suit was transferred to the Court of Munsiff, Bidar. In the suit an exparte decree was passed against the revision Petitioner by the transferee Court vide judgment and decree dated 12.7.1991. Thereafter the present revision Petitioner moved an application namely Miscellaneous Case No. 46 of 1992 and that application under Order 9, Rule 13 was delayed one. It was filed on 15.12.1992. The application for setting aside the exparte decree was made on 15.12.1992. The said application was barred by limitation. The revision Petitioner asserted that notice of transfer of the case was not served on the Defendant/Petitioner and he did not had the knowledge of the exparte decree till the second week of November, 1992. It was asserted that the application was moved in time from the date of knowledge. The trial Court rejected the application as time barred and on appeal being preferred, the learned Civil Judge maintained the order of the trial Court rejecting the application as being time barred. It opined that summons of the suit was served at the stage when suit was pending in the Court of Civil Judge and the Defendant had filed the written statement. It further opined that on this second occasion after transfer of the case to the Court of Munsiff, notice of transfer was issued and it was served by affixation of notice on 4.8.1990. But in spite of service by affixation, the Defendant/revision Petitioner did not appear before the Court below and so an exparte decree was passed. It opined that as summons had been served, the revision Petitioner's application was barred by time from the date of exparte decree. The two Courts below after having opined like that, rejected the application for setting aside exparte decree as well as appeal.

(3.) I have heard Sri Mohan Shanthanagoudar, learned Counsel for the revision Petitioner and Sri R. Mallikarjuna for Hegde Associates appearing for Respondents 1 to 4 for response Madras Act has to be filed before a Tribunal constituted under the Madras Act as per Section 8 and as such the Karnataka Appellate Tribunal constituted under the provisions of the Karnataka Appellate Tribunal Act, 1976 (hereinafter referred to as the 1976 Act) has no jurisdiction. The Karnataka Appellate Tribunal by the impugned order dated 9.12.1997 (Opining that the limitation had to be counted from the date of decree and not from the date of knowledge. The learned Counsel contended that when the case had been transferred from the Court of Civil Judge to the Court of Munsiff, the Defendant had been entitled to notice of transfer and for putting up of appearance before the transferee Court. The learned Counsel contended that no doubt notice was issued, but it was not served on the Defendant. As appears from the record and the judgment of the Court below, it was served by affixation under Order V, Rule 20. The learned Counsel revision Petitioner contended that use of expression "notice not duly served" includes the cases of the nature as present where the case is transferred and notice is required to be given thereafter by the transferee Court and it is also if notice is not duly served an on account of that the party fails to appear and suit is decreed exparte, then limitation has to be counted from the date of knowledge of the decree irrespective of the fact that originally summons was served of the suit before transfer. The learned Counsel contended that the Court below ought to have held that in the present case as the notice of transfer of the case from the Court of Civil Judge to the Munsiff Court was not duly served, and the application was within time. But by holding to the contrary erroneously, the Court below rejected the application as time barred and refused to exercise jurisdiction vested in it. 6. These contentions of the learned Counsel for the revision Petitioner have hotly been contested by the learned Counsel for the Respondents. 7. The Respondents' Counsel contended that in this case, summons of the suit had been served on the Defendant when the suit was before the Civil Judge and the Defendant had put in appearance and filed written statement. Therefore, when the summons for filing written statement had been served on the Defendant, the limitation had to be counted from the date of decree and not from the date of knowledge irrespective of notice from the Court from where the case was or had been transferred had not even duly served. The learned Counsel for the Respondent placed reliance on the Single Judge's decision of the Rajasthan High Court in the case of Badri Narayan Sharma Vs. Panchayat Samiti, Dhariawad, AIR 1973 Raj 29 . No doubt in that case a view has been expressed to the effect that expression "summons" under Article 123 refers to summons for first hearing and that if summons had been duly served, period will commence from the date of decree regardless of whether the notice for further hearing by the transferee Court was duly served or not. 8. I have applied my mind to the contentions raised by the learned Counsels for the parties. No doubt, Rajastan case supports the contentions of the Respondents' Counsel. But, with all due respects to the Rajastan High Court, I beg to differ. In my opinion, the view expressed by the Rajasthan High Court is based on those decisions which were given with reference to Article 164 of the Limitation Act, 1908. There is a marked difference between the language of Article 164 and that of Article 123. It will be appropriate at this juncture to quote Article 123 contained in Schedule to the Limitation Act, 1963 as well as Article 164 of Act No. 9 of 1908. Article 123 Description of suit, Period of limitation, Time from which period begins to run 123. To set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte. Explanation. - For the purpose of this article,, substituted service under Rule 20 of Order 5 of the Code of Civil Procedure,, 1908 (5 of 1908) shall not be deemed to be due service., Thirty days, The date of the decree or where the summons or notice was not duly served,, when the applicant had knowledge of the decree. Article 164 of Act No. 9 of 1908 Article 164. -By a Defendant, for an order to set aside a decree passed ex parte., Thirty days, The date of the decree or where the summons was not duly served,, when the applicant has knowledge of the decree. The date of the decree in appeal or,, where notice of the appeal was not duly served,, when the applicant has knowledge of the decree. 9. A perusal of these two articles will clearly reveals that the Legislature had made a modification and used the expression "summons or notice" in Article 123 instead of the expression "summons" used in Article 164. The case referred by the Respondent i.e., decision of the Rajasthan High Court as well as the decisions of the Allahabad High Court prior to 1963 are based on interpretation of expression "summons". If expression "notice" had not been added in Article 123, then no doubt, interpretation given by the Rajasthan High Court might have been applicable. But the language of Article 123 clearly reveals the legislative intent that in cases where summons is served and no further notice is required, in those cases the date of decree will be the starting date. But in cases where in addition to summons, notice had to be issued and were issued, then if the notice is not duly served, then also the benefit of knowledge of the decree will be the starting point. The cases where an appeal is filed, notice had to be served even if summons of the suit had been served. But if notice of the appeal had not been served and an exparte decree is passed in the appeal, then in that case, in the matter of application for setting aside exparte decree passed by the Appellate Court, it is the question not of service of the summons of the suit being taken into consideration, but the question for consideration would be, whether notice of the appeal issued had been served or not? Similar situation may also be in respect of cases where a suit is instituted in a Court, summons no doubt had been served, parties had taken part in the proceedings, but thereafter for some reason or another the suit is transferred from the Court to another Court, parties cannot be expected to run from wall to pillar, from one pole to another pole to find out the dates from the office or registry. Instead it is the duty of the transferee Court to serve a notice on the parties that the case has been received from the original Court to it and a particular date is fixed for appearance of the parties. If such a notice is issued and is not duly served, then also in that case, the date of exparte decree will not be the starting point in case exparte decree is passed by the transferee Court for counting of limitation for filing of suit. Instead the date of knowledge will be applicable. This interpretation also appears to be in consonance with the interest of justice and fair play. It is a well settled principle of law that if two interpretations are possible, one that is justice oriented and makes the remedy available should be adopted. But if only one interpretation is possible, then position might be different. In my opinion, as the service of notice after transfer was served by affixation, the same could not be deemed to be due service in view of explanation to Article 123. Once it is found that service of notice issued by the transferee Court was not duly made or in other words when the notice issued by the transferee Court had not been duly served as per explanation, the limitation for moving the application for setting aside exparte decree would have started from the date of knowledge and had to be counted from the date of knowledge and not from the date of exparte decree. 10. In the present case, the Courts below have erred in computing the limitation from the date of decree. The revision Petitioner/Defendant, beyond doubt, acquired knowledge of the exparte decree on 20.11.1992 and the application for setting aside exparte decree was made on 15.12.1992. The application was well within the period of 30 days i.e., period of limitation and the Court below erred in dismissing the same as barred by limitation instead of remanding the case for consideration afresh, as facts per se reveal that notice of transfer of the case from the Civil Judge Court to the Munsiff Court had not been duly served on the revision Petitioner/Defendant. There was a sufficient good cause for the Defendant's failure to appear in the transferee Court and as the sufficient cause appears to have been there, the application for setting aside exparte decree has also to be allowed and is being allowed herewith. 11. The revision petition, as such, is allowed. The application under Order 9, Rule 3 Code of Civil Procedure filed by the Defendant/revision Petitioner is allowed. Suit is restored to its original number. The parties are directed to appear before the Court below. Let the record be sent to the Court below. The trial Court will issue notice to the parties to appear before it. 12. Costs of the suit is made easy. 13. As the suit is old one of 1976, parties are expected to co - operate with the Court in expeditious decision of the case and the Court is expected to give its preference in deciding it expeditiously.