ITWARI Vs. BECHAN AND OTHERS

JUDGEMENT

(1.) This is a petition under Art. 227 of the Constitution. Bechan, the opposite party No. 1, had filed a suit against Itwari, the petitioner, and the Nyaya Panchayat Barahiya,. pargana Bewan, tahsil and district Hordoi claiming recovery of certain sum from him. It appears that summons was sent by the Nyaya Panchayat to the petitioner, but its service could not be personally effected on him. It was again sent to him with the same fate. Subsequently, the Nyaya Panchayat ordered that the service of the summons be effected on the present petitioner by beat of drum and the case was ordered to be put of on 25th Aug., 1970, before the Nyaya Panchayat. The order-sheet annexure 4 to the writ petition shows that the beat of drum was made accordingly. The order-sheet of 25th Aug., 1970 shows that the present petitioner, however, did not appear before the Nyaya Panchayat. The case was therefore ordered to be put up on 10th Sept., 1970. On that date also the present petitioner did not appear before the Nyaya Panchayat. The plaintiff appeared and made his statement. Then the case was adjourned to 25th Sept., 1970 for orders. On that date the judgment was delivered and an ex parte decree for a sum of Rs. 478.06 was passed against the present petitioner. Aggrieved by that decree, the present petitioner filed a revision petition under Sec. 8 of the Panchayat Raj Act in the court of Munsif West, Hardoi, on 17th May, 1972, He also alleged in para 8 of he revision petition that he came to know of the impugned decree only on 17th May, 1972, and, therefore, the revision was filed within limitation. On 20th Oct., 1972 an affidavit of Chhotey Lal, the 'son of Itwari, the present petitioner, was filed before the learned Munsif in the revision wherein it was averred that the knowledge of the decree was acquired only on 17th May, 1972. The learned Munsif, however, held that the grounds given in the application were not sufficient to prove that the applicant knew of the decree on 17th May, 1972. He, therefore, rejected the revision application under Sec. 89 of the Panchayat Raj Act. The petitioner has now come up to this court.

(2.) The petition is opposed and a counter-affidavit has been filed. A rejoinder-affidavit has also been filed. We have heard the learned counsel for the parties at great length.

(3.) For the petitioner it was urged that the period of limitation to file revision under Sec. 89 is sixty days which in the case of personal service of summon on the defendant would commence to run from the date of the order but in any other case the period would start running from the date of the knowledge of the order. It was hence urged that as the petitioner came to know of the impugned ex parte decree only on 17th May, 1972 and not before, his petition filed on that very date could not be rejected on the ground of limitation a id the learned Munsif erred in not deciding the revision petition on merits The learned counsel for the opposite party no 1, however, submitted that though personal service of summons had not been effected on the present petitioner by the Nyaya Panchayat, the petitioner did receive the knowledge of the hearing of the case when the beat of drum was resorted to. At any rate, he should be deemed to have acquired the knowledge of the pendency of the case against him before the Nyaya Panchayat and, therefore, he should have been vigilant and should have taken care to know what was going on in the case against him. Hence it would be incorrect to say that the petitioner acquired the knowledge of the ex parte decree only on 17th May, 1972. In support of his contention he also referred to the circumstance that the petitioner did not file any application which he could have filed before the Nyaya Panchayat for setting aside the ex parte decree.