CHHUTBAI Vs. MADANLAL

JUDGEMENT

(1.) This is a petition under Arts.226 and 227 of the Constitution of India.

(2.) The material facts leading to this petition, briefly, are as follows : The petitioners and respondent 2 Natthu Prasad were the tenants of Prahladdas. Prahlad Das filed a suit for ejectment under S.12(1)(a),(f) and (g) of the M. P. Accommodation Control Act, 1961, against the petitioner and respondent 2, in the Court of Civil Judge, Class-II, Mhow. Summonses were issued to the petitioners and respondent 2 intimating the date of first hearing as 16th of June, 1965. The summons accompanied with a copy of the plaint was served upon respondent 2 but the summonses on the petitioners were served without the copy of the plaint. On the date fixed, i.e. 16-6-1965, the petitioners did not appear. An ex parte decree was, therefore, passed on 19-6-1965, But Prahlad Das, the decree-holder, continued to realise the rent from the petitioners and respondent 2 for sufficiently long time i.e. for about 10 years without taking any action to execute the ex parte decree and for seeking eviction. For the first time, on 18-8-1975, Prahlad Das sent a vague notice stating therein that a decree for eviction has been passed against the petitioners and claimed possession of the suit premises. No particulars i.e, date of the decree and name of the Court was given in this notice. The petitioners sent a reply dated 16-6-76 and demanded the particulars of the decree, but the particulars were not given. On the other hand, the landlord decree-holder filed an execution application, notice of which was issued to the petitioners for appearing on 23-8-1976. On receipt of this notice of the Court, the petitioners inspected the file and obtained the material particulars and, thereafter filed an application on 4-9-1976 under O.9, R.13, C.P.C. within 30 days of the date of knowledge of the decree, to set aside the ex parte decree on the ground that the summonses were not duly served on the petitioners. This application was contested by the decree-holder. In between the decree-holder died and his son, respondent 1 Madanlal prosecuted the proceedings as his legal representative. The trial Court dismissed the application under O.9, R.13, C.P.C. on 23-6-1978. Against the said order, an appeal, which was registered as Misc. Appeal No. 127 of 1988, was preferred before the District Judge, Indore, which was heard by the 6th Additional Judge to the Court of District Judge, Indore. This appeal was dismissed. Against that order, the respondent 1 preferred a revision petition before this Court, which was registered as Civil Revision No. 188 of 1980. That revision petition was allowed by this Court on 15-3-1982 holding that if the summonses are not accompanied by a copy of the plaint, then it is not an irregularity in the service of summonses but it was not due service in view of the provision of O.5, R.2, C.P.C. and O.9, R.6, C.P.C. the case was remitted to the appellate Court to decide the appeal de novo in accordance with law, after giving a categorical finding on the question as to whether a copy of the plaint was served along with the summons or not and whether the petitioner had the knowledge of the decree. If so, whether the application filed by the petitioners was barred by time or not, in view of the provisions of Art.123 of the Limitation Act, 1963 as the words 'knowledge of the decree' are important. Article 123 of the Limitation Act contemplates 'knowledge of the decree' and not 'any decree'. This order of remand was not challenged by the respondent decree-holder. The appellate Court, vide order dated 17-1-1984 (Annexure-P 3), held that from the record and showing of the summons, it is evident that the summonses so served on the petitioners were not accompanied by a copy of the plaint. Hence, it cannot be said that the summonses were duly served on the petitioners. On the question of limitation, the appellate Court held that a notice Ex. P 4 was served by the landlord on the petitioners informing thereby that a decree for eviction has been passed in Civil Suit No. 35 of 1965. On this information, the petitioners could have obtained necessary information and gathered the knowledge by inspecting the Registrar of Civil Suits in the Court of the Civil Judge concerned. But having not done so, the petitioners would be deemed to have knowledge of the decree as notice of the decree is the knowledge of the decree. As such, the petition filed by the petitioners is barred by time and was dismissed accordingly. It is this order, which has been challenged in this petition under Arts.226 and 227 of the Constitution.

(3.) The respondent landlord, in the return, contended that in view of the second proviso to O.9, R.13, C.P.C. which has been inserted by the C.P.C. (Amendment) Act, 1976 (Act No. 104 of 1976), which came into operation with effect from 1-2-1977, it has been laid down that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in 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. Respondent 1 also relied upon the State Amendment under O.9, R.13, C.P.C. which is also to the same effect. Respondent 1 contended that though copy of the plaint did not accompany the summonses, yet when the defendants had the knowledge and had sufficient time to answer the plaintiff's claim, it would be merely an irregularity. In the facts and circumstances of the present case, such a decree cannot be set aside. The other contention raised in the return is that when the appellate Court has come to a finding of fact that the petitioners had the knowledge of the decree because of the notice sent by the landlord decree-holder, such an application under O.9, R.13, C.P.C. was barred by time. This being a finding of fact, cannot be interfered in a petition under Art.227 of the Constitution even it another view is possible.