Food Corporation Of India v. Baldev Kaur And Others

Surinder Singh, J.:— The petitioner-Food Coropration of India was proceeded against ex parte and an exparte decree was passed against it on April 9, 1973. The Corporation applied for setting aside the ex parte decree on February, 2, 1974, which was resisted by the respondent. It is not disputed that the Corporation came to know about the ex parte decree on January 3, 1974 when summons for the execution of the above decree was received by it.

2. The trial Court framed the following three issues to decide the matter.

(1) Whether there are sufficient grounds for the setting aside of ex parte decree dated 9.4.1973? O.P.J

(2) Whether the application has been filed by a competent person? O.P.J

3. Whether the application has been filed within limitation?

3. The trial court decided issue No. 1 in favour of the Corporation, but the remaining issues Nos. 2 and 3 were decided against it. In consequence of the same, the application for setting aside the ex parte decree was dismissed. An appeal was preferred by the Corporation which was also dismissed by Senior Subordinate Judge, and hence the present Revision petition.

4. A preliminary objection has been raised by the learned counsel for the respondent that in the absence of any objection in regard to back of jurisdiction of the two Courts below, the present Revision petition is incompetent as this Court was not called upon to assess qestions of fact, or law which may even have been decided wrongly. In this behalf, reference is made to D.L.F Housing and Construction Co. (P) Ltd., v. Sarup Singh . 1969 3 SCC 807. Indeed, section 115 Code of Civil Procedure, as amended, provides that the High Court shall not vary or reverse any order made in course of the suit or other proceedings except in a case where if the order is allowed to sta id, it would occasion a failure of justice or cause irreperable injury to the party against whom it was made. No such contingency is, however, forthcoming in the present case Both the Courts below have recorded concurrent findings on the two crucial issues Nos. 2 and 3, by holding that the application for setting aside the ex parte decree was not filed by a competent person and even otherwise the application was barred by limitation. There is no effective answer to these points on behalf of the petitioner.

5. As regards the question as to whether the District Manager of the Food Corporation was competent to conduct the case on behalf of the Corporation, the learned counsel for the petitioner has referred to the provisions of Order XXIX, rule 1, Code of Civil Procedure, which prescribe that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. This provision no where empowers such an officer to conduct the case on behalf of the Corporation. In fact, only the limited power to sign and verify the pleadings has been conferred up on the officer. The Courts below were, therefore, quite correct in setting issue No. 2 against the petitioner.

6. Coming to the question of limitation, the learned counsel has reiterated the same argument as was advanced before the Courts below that the Corporation learnt about the proceedings on January 3, 1974, when it received summons for execution of the decree. The Courts be low have gone into this matter and have held that the Corporation did not lead any evidence whatsoever to prove this allegation. In the absence of cogent evidence to this effect, the mere oral statement of the officer in this behalf could not be accepted. The petitioner, therefore fails on the question of limitation also and the relevant issue No. 3 has been correctly decided against it by the Courts below.

7. There being no material irregularity, nor an allegation about the lack of jurisdiction vesting in the Courts below, the present Revision petition is without merit and is consequently dismissed. In the circumstanes of the case, however there will be no order as to costs.

R.M.S

Petition dismissed