KAPILESWAR MAHARANA Vs. ABDUL RAHMAN

JUDGEMENT

(1.) The petitioner brought a suit against the opposite party in the Court of the Munsif at Jamshedpur and summons was served upon the defendant. At the defendant's instance the suit was transferred from Jamshedpur to Purulia where it was registered on 15 August 1934, and 18 September was fixed for hearing. At the hearing the defendant did not appear and the suit was decreed ex parte. On 23 May 1935, the defendant applied under Order 9, Rule 13 to set aside the ex parte decree on the ground that he had no notice of the date fixed for hearing, his pleader who had appeared in the transfer matter before the District Judge having informed him that notice would be issued on him from the Court of the Munsif of Purulia. No notice had been issued, and he knew nothing of any proceedings or the ex parte decree until 9 May when he found his pay attached by the order of the Court.

(2.) The Munsif of Purulia found that the defendant was led away by the advice of his pleader that he would receive notice from the Purulia Court of the date fixed, but that he ought to have made inquiries both at Jamshedpur and at Purulia in regard to what was happening and he must have been aware of the date. His gross negligence in not appearing could not be excused because of his reliance upon the wrong advice of his pleader. On appeal by the defendant the learned District Judge found that there was sufficient ground for the appellant's non- attendance on 18 September which date had been fixed on a date which was not even fixed for the attendance of parties; the defendant could have had no knowledge of any order passed on 15 August and it was not the duty of a party to attend daily in order to ascertain when his case is going to be taken up. He accordingly allowed the appeal and restored the suit to the file. The order of the District Judge on the facts is not and cannot be gainsaid. It is also incredible that the defendant who moved for a transfer of the suit to Purulia should not appear at the Court to which the suit had been transferred at his instance. The Munsif of Purulia was not well advised in the circumstances in hearing the suit ex parte.

(3.) But the point upon which the revision is sought is limitation. Neither of the Courts below dealt with it. Reliance is placed by the petitioner on Art. 164, Lim. Act, which provides limitation of 30 days from the date of the decree or, where the summons was not duly served, from the date when the applicant has knowledge of the decree. It is urged that the summons having been duly served on the defendant the period of limitation is 30 days from the date of the decree. The opposite party urges that by reason of the justice of his case, this Court in the exercise of a proper discretion will not interfere in revision. The petitioner's reply is that it cannot be said that the case does not come under Section 115, Civil P.C., inasmuch as the Courts below did not merely decide the question of limitation wrongly but did not decide it at all. The circumstances of the present case are altogether peculiar, and I am not prepared to interfere in revision. The action of the learned Munsif bears a close analogy to proceeding ex parte when the defendant is absent because the summons has not been served upon him. It is not unreasonable to treat the present case as practically one of non-service of summons on the defendant. Accordingly I discharge the rule. I direct that the costs of the application, the appeal and revision (pleader's fee in the High Court, one gold mohur) shall follow the event.