SOHONLAL NAGARMULL Vs. MANICK LAL SEAL

JUDGEMENT

(1.) The appellant, Sohonlal Nagarmull, who was the defendant in a suit decreed 'ex parte', has preferred the present appeal against an order of P. B. Mukharji J., refusing to set aside the 'ex parte' decree. The learned Judge did not deliver a judgment, but statements were made to us from the Bar regarding the ground on which, he dismissed the appellant's application. The learned junior Counsel for both parties, who were in the Court below, stated that a preliminary ground was taken on behalf of the respondent that the application was barred by time and the learned Judge dismissed the application on that ground without entering into its merits.

(2.) Mr. Deb, who appeared before us as the leading Counsel for the respondent, stated that if limitation was the only ground on which the application had been dismissed, he would concede at once that the point should be decided in favour of the appellant. He added that we might proceed to consider the application on its merits or send it back to the learned Judge for disposal by him. It was, however, brought to our notice that there was a reported decision of P. B. Mukharji. J. himself, given in another case, according to which the application in the present case would be time-barred. We, therefore, thought that it would not be proper for us to decide the issue of limitation in the appellant's favour merely on the concession of Counsel without giving due consideration to the reasons given by the learned Judge in support of the view held by him. Such consideration appeared to us to be all the more necessary, because we were informed that, on the identical point, there was also a decision by Bachawat J. in which a contrary view had been taken. As there is obviously a conflict of opinion on a question of law and procedure affecting applications made on the Original Side of this Court, we thought it proper to give a decision on it.

(3.) The facts are as follows. On 21-11-1950, the respondent, Manick Lal Seal, brought a suit against the appellant, Sohonlal Nagarmull, for recovery of possession of premises No. 85/2E Ripon Street, arrears of rent and mesne profits. The suit appeared in the Peremptory List of P. B. Mukharji J. on 19-2-1952 and was reached on 28-3-1952, when none being present on behalf of the appellant, it was decreed 'ex parte'. Thereafter, the appellant took out a Master's summons for an application to set aside the decree and made an application which, however, was dismissed on the ground that it was not a proper application. Then on 1-4-1952, the appellant took put a notice of motion in respect of an application to be moved on the 7th April following. On 7-4-1952, the application appeared in the list of P. B. Mukharji J. who gave the usual directions in regard to the filing of the affidavit-in-opposition and the affidavit-in-reply and adjourned the motion to 28-4-1952. On the 28th the motion was further adjourned to the next day at the instance of the respondent. On the next day, that is, on the 29th of April, the application was dismissed on the ground, as was admitted before us, of limitation. Thereupon, the present appeal was preferred.