SESHAINGAR RAJAGOPALAN Vs. UNIQUE ASSURANCE CO LTD

JUDGEMENT

(1.) This is an application to set aside a decree passed ex parte. The suit was filed in August 1936 for the recovery of a sum of Rs. 5330-12-9. The defendant filed his written statement and thereafter there was discovery and inspection by both sides. The suit appeared on the special list on 5 May 1938 and it was then directed to be placed on the prospective list. Eventually the suit appeared on the peremptory list on 31 March 1939 and it was decreed ex parte on 5 April 1939. The defendant has applied by way of motion to have this decree set aside, the application being endorsed by the Assistant Registrar of this Court as being made on 5 May 1939. The notice of motion was served on 9 May and the returnable date was 15 May 1939. The defendant states that he is a resident of Madura some 1400 miles away from Calcutta. He left instructions with his attorney Mr. P.C. Palit to instruct counsel and to let him know in time when the suit would be taken up for hearing. He waited for some time but as he received no intimation he asked his brother to write to Mr. Iyengar, a pleader who had come to Calcutta on some business of his own, to make enquiries. Mr. Iyengar made enquiries and discovered that the attorney of the defendant had died before the suit could be heard and that the suit had been decreed ex parte on 5 April 1939. The defendant then came to Calcutta and found out that his attorney had died some time in March and that he had been seriously ill for some time before. He made further enquiries and then presented the present application; in Court on 5 May 1939. He asked the Court to treat the application as being made on that day and an endorsement to that effect has been made on the petition. He contends that he could not appear on the date fixed for hearing because his attorney had not informed him of the date owing to the attorney being on his deathbed at the time.

(2.) On behalf of the plaintiff most of the facts alleged by the defendant are admitted. A clerk in the employ of the plaintiff company states however that a solicitor, Mr. L.M. Dutt, told him that one Mr. B.G. Bose, the articled clerk of the defendant's solicitor, Mr. Palit, had told him that Mr. Palit had sent several letters to the defendant asking for funds and that the defendant had neglected to comply with this request. Mr. Bose had also said, that it was uncertain whether the suit would be defended or not. It is argued that the story of the defendant that he was prevented from appearing because his solicitor had not communicated with him is untrue and that therefore this application should be dismissed. The next point taken is that this application has been made more than 30 days after the passing of the decree and that it is barred by limitation. I shall consider first whether the defendant was prevented by sufficient cause from appearing. Upon the affidavits and correspondence before me, I accept the defendant's explanation as being true. It is admitted that the defendant took all the necessary steps to defend the suit. He applied for discovery and inspection and also inspected the plaintiff's documents. It is admitted that the attorney did die some time in March 1939. The suit was decreed on 5 April 1939. The case of the plaintiff about the defendant's knowledge that the suit was on the hearing list is in my opinion not established. The clerk of the plaintiff company has no personal knowledge of the facts alleged by him, He heard it from some one who again heard it from some one else. Neither of these persons have sworn to these facts. On the other hand the defendant has produced a telegram and a letter which support his case that he had no knowledge about the date fixed for the hearing of the suit. I am satisfied that the defendant was not informed about the progress of the suit by his attorney owing to the attorney's grave illness and subsequent death. There has been no serious negligence on the part of the defendant. He has shown sufficient cause for not appearing on the date the suit was taken up for hearing.

(3.) The next point for consideration is whether this application is barred by limitation. In this connexion I must first determine when the application was made. On behalf of the petitioner it is pointed out that the application was made on 5 May 1939 when it was first presented in Court and when the Court treated the application as having been made on that date. The endorsement of the Assistant Registrar on the petition "noted as made today" is relied upon. On behalf of the plaintiff-respondent the contention is that the application was not made until 9 May when the notice of motion was served on the plaintiff and that the presentation of the application to Court cannot amount to a making of the application. Reliance is placed on the decision of Lort-Williams J., in Jnaneendra Kumar V/s. Amrita Krishna where he has reviewed the leading cases on this point and has held that an application by way of motion must be taken to be made on the date of the service1 of the notice of motion and that the period of limitation will cease to run from that date. This decision however can have no application to the present case inasmuch as the petitioner has got an order from this Court to the effect that this application was to be treated as having been made on 5 May 1939. I must hold therefore that the application was made on 5 May 1939, that is to say within 30 days of the date of the decree. That being so, no question of limitation arises. It is therefore not necessary for me to deal with the vexed question whether this is an application which is governed by Art. 164, Limitation Act, or not.