GH MOHI-UD-DIN Vs. JAMAL SHAH

JUDGEMENT

(1.) THIS is an application in revision by the plaintiff against an order passed in appeal by learned District Judge, Srinagar setting aside the ex parte decree passed in his favour by the Second Additional Munsiff, Srinagar.

(2.) THE facts which gave rise to this revision application briefly stated are these: The plaintiff brought a suit in the court of Second additional Munsiff, Srinagar for possession of land described in the plaint on 9 -11 -1961. On 9th May, 1962 the defendants attended the Court and they were supplied with a copy of the plaint and the next date of hearing was fixed on 30 -5 -1962. It appears that on date public holiday was declared and the case came up for hearing on the 31st of May, 1962. The defendants were not present and a notice was issued to them to attend the Court on 17th July, 1962 which was the date and on 29th September, 1962 the successor passed an order on 5th November, 1962 that the defendants be served by substituted service and the case was fixed for hearing on 28th February, 1963. On that date the defendants were not present and date the defendants were not present and the case was fixed for hearing on the 31st of May, 1963. The defendants did not turn up on that date and ex parte proceedings were taken against them. An ex parte decree was passed on 4th March 1964 against the defendants. An application for setting aside the ex parte decree was made by Jamal Shah defendant on 21st July, 1964. The learned trial Judge dismissed the application holding it to be barred by time under Art. 164 of the Limitation Act. The defendant appealed and the learned District Judge set aside the order of the trial Court dismissing the application for setting aside the ex parte decree and directed that the suit be restored to its original number and disposed of in accordance with law.

(3.) IT is argued on behalf of the petitioner that the learned lower appellate court had erred in setting aside the order of the trial court, holding that he application for setting aside the ex parte decree was barred by time and my attention has been drawn to article 164 of the Limitation Act which reads as under: Description of application Period of Limitation Time from which period begins to run By the defendant to an order to set aside a decree passed exparte. Thirty Days The date or decree or where the summons was not duly served when the applicant has knowledge of the decree. It is contented that the defendants were duly served in the suit and they put in appearance before the trial court on 9th May, 1962: therefore limitation would run from the date of the decree and not from the date when the defendants respondents had knowledge of the decree. I have gone through the judgment of the learned District Judge and have heard counsel for the respondents in reply. The learned District Judge has relied upon a ruling of the Allahabad High Court reported as AIR 1957 All 805 in which it has been held: In case there is no interruption in the hearing of the suit and the suit proceeds in ordinary course, then the word Ëœsummonsâ„¢ in Art. 164 refers to the sommons issued in the first instance. But if there is an interruption in the hearing and there is stay on account of an order of the suprior Court the case assumes a different character. The first hearing in that instance is the first date on which the case again starts after the case is sent back from the High Court and the hearing is again resumed. And in such a case whenever a date is fixed for the hearing or a date is adjourned it is bounded duty of the Court to inform parties or their counsel or their representatives of such dates. If they are not so informed, the party not informed will not be bound by the proceedings.  This case has no application to the instant case. In the Allahabad case there had been interruption in the hearing while the suit was going on. The proceedings in the suit were stayed by the order of the High Court and the case was sent back by the High Court to the trial court. It was held that it was the duty of the court to inform the hearing of the suit and if they are not so informed the party not informed will not be bound by the proceedings. In the present case the defendants put in appearance before the Court on 9th May, 1962. The next date fixed in the suit was 30th May, 1962 which was declared a public holiday. It was the duty of the defendants to find out as to what was the next date fixed for hearing in the suit. The case was taken up on 31st May, 1962. The defendants were not present on that date and the Court as a matter of abundant caution issued notice to the defendants informing them about the next date of hearing. That notice was not served. The defendants never took the trouble to find out the date fixed for hearing in the suit. Finally ex parte proceedings were taken on 31 -5 -1963 and ex parte decree was passed on 4 -3 -1964. Under these circumstances it cannot be said that the defendants had no knowledge of the suit. They put in appearance in Court soon after the suit was filed against them and then they absented themselves till the ex parte decree was passed against them, fn the circumstances limitation would start against them from the date of the decree and under Article 164 referred to above they should have put in an application for setting aside the ex parte decree within 30 days from the date of the decree. The same view has been taken in AIR 1953 Pat 399 in which it has been held that where summons is duly served limitation of 30 days starts from the date of the decree and not from the date of the knowledge of the decree. The trial Court had rightly dismissed the application filed by the defendant for setting aside the ex parte decree and the learned District Judge had erred in oversetting that order. I allowed this revision application set aside the order of the learned District Judge and restore that of the trial Court but in the circumstances of the case. I make no order as to costs in this Court.