Citation Codes

Equivalent Citations

citation codes

Case Number

Letters Patent Appeal No. 13 of 1952.

Advocates

S.L Puri,
M.L Sethi,

Judges

Hon'ble Mr. Justice G.D. Khosla
Hon'ble Mr. Justice Amar Nath Bhandari

Acts

section 122 of the Civil Procedure Code extending the provisions of section 6 of the Limitation Act
provisions of section 5 of the Limitation Act to Article 164.
provisions of Article 164 of the Limitation Act.
SECTION 5 LIMITATION ACT
Order IX, Rule 13, Civil Procedure Code.10.
SECTION 10 CIVIL PROCEDURE CODE
SECTION 24 CIVIL PROCEDURE CODE
Order IX, Rule 13, Civil Procedure Code,
Order V, Rule 20. Civil Procedure Code.
Article 164 of the Limitation Act
provisions of Article 164.3.
Order IX, Rule 13

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Smart Summary

Concise Analytical Summary of the Opinion (Khosla, J.)

Factual and Procedural Background

Harnam Singh brought a suit for recovery of Rs. 8,500 in the Court of the Senior Subordinate Judge, Ferozepore. The suit was transferred to another Subordinate Judge (Mr. Gambhir) and, on application under section 24 of the Civil Procedure Code by Sodhi Harnam Singh, the District Judge on 18th February 1950 ordered transfer of the suit to the Court of the Subordinate Judge at Fazilka, who visited Muktsar monthly. The District Judge's order directed the parties to appear before the Subordinate Judge at Muktsar on 18th March 1950.

On 18th March 1950 the case was taken up at Muktsar; the defendant did not appear. The case proceeded ex parte; evidence was taken on 10th April 1950 and an ex parte decree was passed the same day in favour of the plaintiff. On 9th June 1950 the defendant (judgment-debtor) applied under Order IX, Rule 13, Civil Procedure Code to set aside the ex parte decree. The trial Judge dismissed that application as time-barred under Article 164 of the Limitation Act. An appeal against that dismissal reached this Court where Kapur J. had earlier held the application was not barred by time. The present opinion considers an appeal under clause 10 of the Letter Patent against Kapur J.'s decision.

Legal Issues Presented

Whether the District Judge, when ordering transfer under section 24 CPC on 18th February 1950, informed the parties that they were to appear before the Subordinate Judge at Muktsar on 18th March 1950 (a question of fact).
Whether the defendant's application to set aside the ex parte decree is barred by time under Article 164 of the Limitation Act — specifically, whether the "terminus a quo" for limitation is the date of the decree or the date when the defendant came to know of the decree (and whether "summons" in Article 164 refers only to the first summons issued in the suit or also to subsequent notices after transfer).

Arguments of the Parties

Defendant / Judgment-Debtor (grounding the application to set aside)

The defendant's absence at Muktsar on the hearing date was due to ignorance of the date of hearing there (i.e., the defendant was not informed of the Muktsar date after transfer).
On the limitation point (as accepted by Kapur J.), the defendant argued that Article 164's reference to "summons" included subsequent notices issued by the court to which the suit was transferred, and because such notices were not sent, the period of limitation should run from the date the defendant came to know of the decree rather than from the decree date.

Counsel opposing the defendant's position (Mr. Shambu Lal Puri)

Contended that summons in the original instance had been served on the defendant; therefore Article 164 required the defendant to make the application within thirty days of the date of the decree (i.e., the application was time-barred).

Evidence / Plaintiff's factual assertions

Harnam Singh (the plaintiff) deposed that parties were informed of the date on which they had to appear at Muktsar and stated that Dev Raj, the Mukhtar of the defendant, was present when the direction was given. The Mukhtar did not give evidence from the witness box.
The plaintiff's counsel appeared at Muktsar on the date fixed for hearing, indicating knowledge of the date by the plaintiff's side.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lal Devi v. Amar Nath (A.I.R. 1920 Lah. 261)	Interpreting the word "summons" in Article 164 as referring to the summons for the first hearing of the suit; mere non-service of notice of an adjourned hearing does not extend the limitation.	Cited as authority supporting the proposition that Article 164's "summons" means the first-instance summons and that limitation runs from the decree where the first summons was duly served.
Surjit Singh v. Lt. Capt. C.J. Torrie (A.I.R. 1924 Lah. 666)	Followed the reasoning in Lal Devi that "summons" in Article 164 means summons in the first instance.	Followed Chevis J.'s interpretation; used to support the court's view that subsequent notices do not alter the terminus a quo for Article 164.
Sham Sundar Khushi Ram v. Devi Ditta Mal (A.I.R. 1932 Lah. 539)	Dealt with a suit transferred from one court to another; held that an application to set aside an ex parte decree made more than thirty days after decree was barred, even though notices after transfer were not duly served.	Quoted and relied on (through Bhide J.'s observations) to support the interpretation that transfer does not restart limitation and that "the summons" is significant and refers to the original summons.
Raghbir Bros. v. Daulat Ram (36 I.O. 32)	A contrary view where, on facts involving a stayed suit resumed without notice, Scott-Smith J. held that because no summons was sent when the case was restarted, the defendant was not bound to apply within thirty days of the ex parte decree (view that restarting may be treated as a new suit).	Noted as an exception; the court considered it but preferred the earlier Lahore decisions and interpreted Article 164 as referring to first-instance summons.
15 I.C. 549 (citation referenced)	Mentioned as earlier interpretation aligning Order IX, Rule 13 wording with service of first-instance summons.	Used to reinforce the position that similar language in Order IX, Rule 13 had been interpreted to mean service of summons in the first instance.

Court's Reasoning and Analysis

The Court addressed the two central questions (fact of notice of the Muktsar date; and the limitation point under Article 164) in sequence.

1. On the factual question whether the District Judge informed the parties to appear at Muktsar on 18th March 1950, the Court examined the District Judge's order which explicitly states: “Parties are directed to appear before the Subordinate Judge, Muktsar, on 18th March, 1950.” The sentence appeared separately on the reverse of the typed order but was signed; the Judge concluded it was added at the time because the District Judge had forgotten to include it in the main order. The Court relied on:

the clear wording of the order directing parties to appear;
the usual practice that parties present ask the court to fix a date for appearance;
the plaintiff Harnam Singh's deposition that parties were informed of the Muktsar date and that the defendant's Mukhtar (Dev Raj) was present (although he did not give evidence from the witness box); and
the fact that the plaintiff's counsel was present at Muktsar on the date fixed.

On these bases the Court found it difficult to accept Kapur J.'s view that the order was not made on the date and that parties were not informed; instead, Khosla, J. held that parties were informed of the Muktsar date.

2. On the limitation point, the Court examined Article 164 of the Limitation Act which says an application to set aside an ex parte decree must be made within thirty days of the decree or, where the summons was not duly served, within thirty days of the date on which the defendant came to know of the decree. The key legal question was whether the term “summons” in Article 164 referred only to the summons issued in the first instance or also to subsequent notices (for example, after transfer).

The Court reviewed precedent: three Lahore High Court decisions (Lal Devi v. Amar Nath; Surjit Singh v. Torrie; Sham Sundar Khushi Ram v. Devi Ditta Mal) had construed "summons" in Article 164 as meaning the summons in the first instance. The Court agreed with the reasoning in these cases (particularly Bhide J.'s observations in Sham Sundar) that the intention of Article 164 was to afford an extended period only where the defendant had no knowledge of the suit at all — not to allow extension whenever a later notice of hearing was not served. The Court observed that transfer of the suit does not start proceedings de novo; proceedings continue from the stage they had reached.

The Court also acknowledged the potential for hardship where a defendant is genuinely unaware of an ex parte decree but noted that section 5 of the Limitation Act does not apply to Order IX, Rule 13 applications. It recorded that some High Courts (Madras, Bombay, Nagpur) had addressed such hardships by framing rules under section 122 CPC to extend section 6 of the Limitation Act to such applications. The Nagpur High Court's proviso to its Rule 13 was quoted as an example of a local rule providing relief where, despite service of the original summons, the defendant did not know of a subsequent hearing due to no fault of his own.

The Court considered the solitary decision going the other way (Raghbir Bros. v. Daulat Ram) but regarded it as an exception; the Court concluded that Article 164 should be interpreted to refer to summons issued in the first instance and not to subsequent notices. The Court emphasized that it must give effect to the legislative wording and cannot, by judicial decision, supply lacunae that the legislature or rule-making bodies might remedy.

Holding and Implications

Holding: The appeal is allowed. The application to set aside the ex parte decree is dismissed with costs throughout.

Implications:

The Court held that, on the facts, parties were informed of the date to appear at Muktsar on 18th March 1950; accordingly, the defendant's absence did not arise from ignorance of the transfer date as found by Kapur J.
As a matter of law, the Court interpreted Article 164 of the Limitation Act to mean that "summons" refers to the summons issued in the first instance; therefore a defendant who was served in the original instance must apply within thirty days of the decree (unless local rules extending relief apply).
The Court declined to expand the statutory wording judicially to provide additional relief; instead it noted that the legislature or High Courts (by rule under section 122 CPC) are the appropriate bodies to extend limitation relief in deserving cases. The opinion does not purport to create a new legal principle beyond the interpretation adopted.

Disposition in the Court's words: Appeal allowed; the application to set aside the ex parte decree is dismissed with costs throughout.

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Sodhi Harnam Singh v. Sodhi Mohinder Singh .

Khosla, J.:— This appeal under clause 10 of the Letter Patent arises out of an application to set aside an ex-parte decree passed in favour of Harnam Singh appellant. The facts briefly are that Harnam Singh brought a suit for the recovery of Rs. 8,500 in the Court of the Senior Subordinate Judge, Ferozepore. The suit was transferred to the Court of Mr. Gambhir Subordinate Judge and then the appellant Sodhi Harnam Singh applied under section 24 of the Civil Procedure Code for the transfer of the suit to another Court. This application was allowed by the District Judge who on 18th February, 1950 ordered that the case be transferred to the Court of Subordinate Judge Fazilka at Muktsar. The Subordinate Judge at Fazilka used to visit Muktsar every month. Parties were also directed to appear before the Subordinate Judge Muktsar on 18th March, 1950 On that day the case was taken up by the Subordinate Judge at Muktsar but the defendant did not appear. The case was then heard ex parte and some evidence was taken on 10th April, 1950. On the same day an ex parte, decree was passed in favour of the plaintiff. On 9th June, 1950 an application was made by the defendant judgment-debtor for setting aside of the ex-parte decree under Order IX, Rule 13, Civil Procedure Code. This application was dismissed by the trial Judge on the ground that it was barred by time under the provisions of Article 164 of the Limitation Act. Against that order an appeal was brought to this Court and Kapur J. took the view that the application was not barred by time. He based this decision on the fact that the District Judge on 18th February, 1950 had not informed the parties that they were to appear in the Court of the Subordinate Judge Muktsar on 18th March, 1950 and the absence of the defendant was therefore due to his ignorance of the date of hearing at Muktsar. The further took the view that the expression ‘summons’ used in Article 164 included notices issued to the parties subsequently and that its meaning was not confined to the first summons issued in the case.

2. Against this decision of Kapur J. the present appeal has been preferred. There are two points for our decision. The first is a question of fact, namely whether the District Judge, while passing orders transferring the case under section 24 of the Civil Procedure Code, informed the parties that they had to appear in the Court of Subordinate Judge at Muktsar on, 18th March, 1950. The second point is whether the application is barred by time under the provisions of Article 164.

3. On the question of fact the learned Judge appears to have taken the view that the order of the District Judge dated the 18th February, 1959 was not made on that date and the parties were not informed of it. I find it difficult to accept this view since the order says: “Parties are directed to appear before the Subordinate Judge, Muktsar, on 18th March, 1950”. This is a categorical statement to the effect that parties had been directed and informed. This sentence was written separately on the reverse of the page on which the order transferring the Case was typed and signed, but I have no doubt that this order was also made at the same time. It was added subsequently because the District Judge in the original instance forgot to include it in the main order. Parties were present on that date and usually in such cases they ask the Court to fix a date for appearance in the lower Court, but whether they made a specific request to this effect or not, I have very little doubt that parties were told to appear at Muktsar on 18th March, 1950. The correctness of the record was deposed to by the appellant Harnam Singh himself who stated that the parties were informed of the date on which they had to appear at Muktsar and at that time Dev Raj, the Mukhtar of the defendant, was present. It is significant that the Mukhtar did not choose to appear in the witness-box. The plaintiff's counsel appeared at Muktsar on the date fixed and he, therefore, knew the date. I find it difficult to believe that the defendant was ignorant of this date. I, therefore, hold that parties were informed of the date on which they had to appear in Court of Muktsar.

4. With regard to the question of limitation, Article 164 of the Limita-Act provides that an application to set aside an ex-parte decree must be made by the defendant within thirty days of the date of the decree or, where the summons was not duly served, the date when he came to know of the decree. The only question for determination in this case is what is the terminus a quo for computing the period of limitation. Kapur J. has taken the view that summons does not mean summons issued in the first instance and that it means also notices sent by the Court to which a suit is transferred. In this view of the matter Kapur J. held that the application was within time because the summons or the notices were never sent by the Subordinate Judge Muktsar to the parties. It is, however, contended by Mr. Shambu Lal Puri that summons in this case were served on the defendant in the original instance and therefore the application should have been made within thirty days of the date of the decree.

5. An application to set aside an ex parte decree is made under Order IX, Rule 13, and in that Rule the expression used is “summons was not duly served”. Courts have taken the view that this means the service of the first summons. There are three decisions of the Lahore High Court in which the word ‘summons’ in Article 164 of the Limitation Act was taken to mean summons in the first instance. The first of these is Lal Devi v. Amar Nath . A.I.R 1920 Lah. 261, in which Chevis J. took the view that an application to set aside an ex parte decree must be made within thirty days of the decree. In that case defendant had not received notice of an adjourned hearing and Chevis J. observed—

“The words in Article 164 ‘where the summons was not duly served’ seem to me to refer to the summons given for the first hearing of the suit, and I agree with Mr. Rustomjee: see his book on Limitation, Edition 2, page 546 that where, as in the present case, there has been due service of such summons, the mere fact that the defendant has not received notice of an adjourned hearing will not cause limitation to run from the date on which the defendant becomes aware of the decree having been passed.”

6. The second case is Surjit Singh v. Lt. Capt. C.J Torrie . A.I.R 1924 Lah. 666.. In this case Moti Sagar J., referred to the decision of Chevis J. cited above, and following it, held that the word ‘summons’ in Article 164 means summons in the first instance. The third decision Sham Sundar Khushi Ram v. Devi Ditta Mal . A.I.R 1932 Lah. 539., is even more in point. In this case a suit originally pending in one Court was transferred to another Court. Notices were sent by the second Court and service of the notices was effected under Order V, Rule 20. Civil Procedure Code. The defendant failed to appear and an ex parte decree was passed. The application to set aside this ex parte decree was made more than thirty days after the date of the decree. Bhide J. held that the application was barred by time. He referred to the two cases cited above and observed—

“To me also this seems to be the correct interpretation. The intention apparently is to give an extended period of limitation in cases where the defendant has no knowledge at all of the suit. But when he has knowledge of the suit, the mere fact that he did not get the due notice of a subsequent hearing can hardly be considered to be a ground for extension of the period. The words ‘the summons’ are significant.”

7. The learned Judge went on to say—

“If the intention was to allow an extended period in any case where a notice of the date of hearing is not duly served during the course of the suit, the wording would have been, I think, different. In this case the suit was no doubt transferred to another Court, but such a transfer has not the effect of starting the proceedings de novo. The suit is merely continued from the stage it had reached in the first Court. Following the interpretation accepted in the two rulings cited above, I hold that the learned Subordinate Judge had no jurisdiction to set aside the decree merely on the ground that the notice after the transfer was not duly served.”

8. With great respect I agree with these observations of Bhide J.

9. I have already observed above that a similar expression in Order IX, Rule 13, Civil Procedure Code, has been interpreted as meaning service of summons in the first instance. This was the view taken in 15 I.C 549 (?). There is one further argument which can assist us in interpreting the wording of Article 164. It is no doubt true that in some cases extreme hardship may result if summons means summons in the first instance only, for one can imagine cases in which through no fault of the defendant an ex parte decree is passed to his complete ignorance. There may even be a case in which in spite of vigilance on his part he may not know that an ex parte decree has been passed, and in such cases it may be impossible for him to make an application under Order IX, Rule 13, Civil Procedure Code, within thirty days of the passing of the decree. The provisions of section 5 of Limitation Act do not apply to applications under Order IX, Rule 13 and so the Courts cannot grant any indulgence to a defendant who has suffered a hardship of this nature. This was realized by some of the High Courts in India and at least three of the High Courts, namely Madras, Bombay and Nagpur have passed special rules under section 122 of the Civil Procedure Code extending the provisions of section 6 of the Limitation Act to applications made under Order IX, Rule 13, Civil Procedure Code.

10. In the Nagpur High Court a proviso has been added to Rule 13 in the following terms—

“Provided also that no such decree shall be set aside merely on the ground of irregularity in service of summons, if the Court is satisfied that the defendant knew, or but for his wilful conduct would have known of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim.”

11. This proviso clearly shows that the Nagpur High Court intended to limit the scope of Order IX, Rule 13, Civil Procedure Code, in case of non-service of summons in the first instance. In case summons had been served hardship was to be avoided by extending the provisions of section 5 of the Limitation Act to Article 164. A defendant could thus make an application more than thirty days after the passing of the ex parte decree against him even if he had been served in the first instance provided he could show that there was good ground for the delay occasioned in coming to Court.

12. There is only one case in which a slightly contrary view appears no have been taken. This was Raghbir Bros. v. Daulat Ram . 36 I.O 32. In that case a suit was stayed under section 10 of the Civil Procedure Code and no notice of the resumed hearing was given to the parties. An ex parte decree was passed and the defendant then applied to have the decree set aside. Scott Smith J. took the view that since no summons was sent to the defendant when the case was restarted he was not bound to make an application within thirty days of the ex parte decree. Scott-Smith J. appears to have taken the view that when the suit was restarted it was a new suit. It seems to me therefore that the wording of Article 164 refers to summons issued in the first instance and not to notices issued to parties subsequently whether such notices are necessary under law or not. This was the view taken by three Judges of the Lahore High Court in the three cases mentioned above and this is the view which appears to have moved the Madras, Bombay and Nagpur High Courts to frame a rule extending the provisions of section 5 of Limitation Act to an application of this type. It may be that there is a lacunae in the law but since the intention of the legislature as expressed in the statute is clear we must give effect to it. It is not the function of this Court to add to the law and we must confine ourselves to interpreting the law as it exists. Future hardship on parties can be avoided by adopting the course followed by some of the other High Courts. This appeal must be allowed and I would allow it with costs. The application to set aside the ex parte decree is accordingly dismissed with costs throughout.

13. Bhandari, C.J:— I agree.

14. Appeal allowed.

Sodhi Harnam Singh v. Sodhi Mohinder Singh .

Concise Analytical Summary of the Opinion (Khosla, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Defendant / Judgment-Debtor (grounding the application to set aside)

Counsel opposing the defendant's position (Mr. Shambu Lal Puri)

Evidence / Plaintiff's factual assertions

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sodhi Harnam Singh v. Sodhi Mohinder Singh .

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