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Union Of India v. V.P Kochhar .
Structured Summary of the Opinion
Factual and Procedural Background
(Based exclusively on the information contained in the provided opinion.)
The petition arises from a revision against an order dated 23 February 1982 of the Additional District Judge, Delhi, which dismissed an appeal by the Union of India. The appeal had been filed against a trial court judgment dated 3 December 1981 that dismissed an application by the Union of India under Order IX, Rule 13 of the Civil Procedure Code (to set aside an ex parte decree).
The plaintiff (respondent) had been dismissed from service in 1979 and filed a suit around 3 December 1979 seeking a declaration that his dismissal was illegal and for money claims. The defendants were stated as the Union of India to be served through (a) Secretary, Ministry of Railway (Railway Board), and (b) General Manager, Northern Railway. Summons addressed to (a) Railway Board was served on 24 December 1979 and to (b) General Manager, Northern Railway was served on 7 December 1979. No one appeared for the Union of India at the hearing and the trial court recorded ex parte evidence and passed an ex parte decree on 26 May 1980.
The Union of India filed an application under Order IX, Rule 13 on or about 15 September 1980 seeking to set aside the ex parte decree, alleging that summons had been misdirected within railway offices and misplaced in transit so that the officials who deal with legal cases never received or noted the hearing date. Affidavits and oral evidence were led; the trial court found the loss of summons was not sufficient cause and doubted proof of loss. The appellate court dismissed the Union's appeal, holding that although service was admitted, the Union could not take advantage of misfeasance/non-feasance of its officers; the appellate court did not decide whether loss in fact occurred or whether it would amount to sufficient cause. The present revision proceeded to examine those findings.
Legal Issues Presented
- Whether the loss or misplacement of summons within government railway offices (i.e., summons received by clerks but not reaching the officers who deal with court cases) constitutes "sufficient cause" under Order IX, Rule 13, Civil Procedure Code to set aside an ex parte decree.
- Whether the Union of India's application under Order IX, Rule 13 was time-barred, and if so, whether the delay should be condoned under Section 5 of the Limitation Act.
- Whether the courts below committed error or material illegality in refusing to set aside the ex parte decree by effectively permitting the Union to be prejudiced by the misfeasance or non-feasance of its officers without adequately addressing evidence of loss in transit.
Arguments of the Parties
Union of India (Petitioner)
- The summons addressed to the General Manager, Northern Railway and to the Railway Board were received at initial points but were forwarded within railway offices and then misplaced in transit, never reaching the Personal Branch or the official who deals with court cases (evidence and affidavit of Shri Raja Ram and other clerks were led to this effect).
- The non-appearance on 10 January 1980 was not intentional or mala fide; it was due to the summons being misplaced and therefore amounted to "sufficient cause" under O. 9, R. 13 CPC for setting aside the ex parte decree.
- Letters by the plaintiff sent to the Railway Board (Railway Board being a different entity from the Ministry of Railways) did not impart effective knowledge to the appropriate officers; the Railway Board is not the same as the Ministry (supporting evidence and a cited precedent were relied upon to draw the institutional distinction).
- Even if there had been some delay in filing the application, the Union sought condonation of delay under Section 5 of the Limitation Act in the circumstances described.
Plaintiff (Respondent)
- Contended that there was no "sufficient cause" for non-appearance despite service of summons and disputed the claimed misplacement of summons.
- Asserted that the Union of India's application was barred by time (i.e., time limitation objection).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K.N. Shukla v. Navnit Lal Manilal Bhatt, AIR 1967 SC 1331 (at p. 1334) | To show the institutional distinction between the Railway Board and the Ministry of Railways (i.e., that Railway Board is different from the Ministry and the executive authority vests in the Central Government/Ministry). | The court relied on this distinction to conclude that letters sent to the Railway Board did not necessarily impart knowledge to the appropriate Ministry or the relevant railway authority responsible for legal matters; therefore the plaintiff's correspondence to the Railway Board could not be treated as effective notice to the Union for the purpose of barring the Union's application or charging them with knowledge of the decree. |
Court's Reasoning and Analysis
The court began by noting the limited scope of revision jurisdiction—normally not concerned with reappreciation of pure facts but with errors of jurisdiction, material illegality or irregularity. The dispute in this case, however, turned on whether there was sufficient cause under Order IX, Rule 13 CPC for non-appearance despite admitted service.
The court examined the evidence adduced by the Union of India. The chronology and evidence the court recorded included:
- Service dates were admitted: General Manager, Northern Railway — 7 December 1979; Railway Board — 24 December 1979.
- Witnesses called by the Union (seven in number) testified that the summons received at headquarters/branch levels were forwarded (documentary references: Ext. AW 1/1 and AW 1/2), but that the forwarding did not lead to the summons reaching the Divisional Railway Manager's Personal (Pivot) Branch or the Law Department officer who normally handles court cases (Shri Raja Ram, A.W.6, stated he never received the summons).
- The Receipt and Despatch register showed no entries between 25-12-1979 and 1-1-1980; evidence from clerks suggested certain dak (dispatch) entries were missing, supporting a finding of loss in transit for some material.
- The plaintiff did not call the register that Shri Raja Ram said he had not taken with him; the court noted the plaintiff also failed to produce that register.
- The appellate court had earlier held that the Union could not take advantage of misfeasance/non-feasance of its officers but did not make factual findings as to whether the summons were actually lost or whether such loss would amount to sufficient cause.
On the basis of the witness testimony and documentary evidence, the court accepted the petitioner's account that summons did not reach the officials responsible for legal proceedings because they were misplaced in transit. The court expressly stated it had "no reason whatsoever to disbelieve any of the witnesses" produced on behalf of the petitioner.
The pivotal legal question became whether such loss/misplacement of summons caused by departmental officers amounts to "sufficient cause" within O. 9, R. 13 CPC. The court found the approach of the courts below erroneous: the loss in transit, even if attributable to the negligence of a peon or clerk (i.e., misfeasance or non-feasance), could amount to sufficient cause. It reasoned that government departments act through their officers; if the summons were lost in transit (without allegation of deliberate misplacement or mala fides), that justified setting aside the ex parte decree.
Regarding the objection of delay/time-bar, the court examined the plaintiff's letters to the Railway Board (dated 14-7-1980, 12-8-1980 and 25-8-1980). It observed that suing the Union of India in railway matters through the General Manager, Northern Railway, was appropriate and that sending letters to the Railway Board did not necessarily impart effective knowledge to the correct authority. Citing the K.N. Shukla precedent for the institutional distinction, the court concluded that the Union was not properly charged with knowledge by reason of letters sent to the Railway Board. Even if knowledge had been acquired, the court exercised its discretion to condone the delay under Section 5 of the Limitation Act in the circumstances.
Holding and Implications
Core Ruling: Revision allowed; the ex parte decree dated 26 May 1980 and the ex parte proceedings are set aside.
Direct consequences and implications:
- The ex parte decree (trial court decree dated 26-5-1980) is set aside and the Union of India is permitted to contest the suit on merits.
- Parties were directed to appear before the trial court on 21 February 1983.
- There was no order as to costs in the present revision proceedings.
- The court expressly found that loss of summons in transit, without proof of deliberate misplacement or mala fides, constituted sufficient cause under Order IX, Rule 13 CPC to set aside an ex parte decree; therefore, lower courts' contrary approach was characterized as erroneous in law and on appreciation of evidence in this instance.
- The court condoned delay under Section 5 of the Limitation Act given the factual circumstances (including misdirected letters to Railway Board and delayed receipt by the relevant General Manager's office).
- No broader new legal principle beyond this application of O. 9, R. 13 and the exercise of discretion under Section 5 Limitation Act was declared; the immediate practical effect is to restore the Union of India's right to be heard in the underlying suit.
Revision allowed.
This revision petition is directed against an order of Additional District Judge, Delhi dated 23rd Feb. 1982 whereby the learned Additional District Judge dismissed an appeal filed by the Union of India against the judgment dated 3rd Dec. 1981 passed by the learned trial Court dismissing an application filed by the petitioner-Union of India under the provisions of O. 9, R. 13 of the Civil P. C.
2. The plaintiff-respondent herein was dismissed from service during 1979. He filed a suit on or about 3rd Dec. 1979. The suit was filed for declaration that the dismissal of the plaintiff was illegal and ultra vires and also there was a claim of money. In the plaint the respondent-plaintiff made the defendants as under:—
1. Union of India (to be served through).
(a) The Secretary, Ministry of Railway (Railway Board), Rail Bhavan, New Delhi.
(b) General Manager, Northern Railway, Baroda House, New Delhi.
3. Two summons were issued to the defendants as detailed above. Summons addressed to authority at 1 (a) was served on 24th Dec. 1979 whereas the summons to authority at 1 (b) was served on 7th Dec. 1979. In spite of service nobody appeared on behalf of Union of India and after recording ex parte evidence, the learned trial Court passed a decree dated 26th May, 1980.
4. On or about 15th Sept. 1980 the Union of India filed the aforesaid application under O. 9 R. 13 of the Civil P.C for setting aside the aforesaid ex parte decree. In this application it was inter alia alleged that after the service of the defendants on a clerk of Railway Board, the Railway Board wrote a letter to the Senior Sub-Judge on 18th Dec. 1979 that as the case related to the General Manager, Northern Railway, summons be sent to him for necessary action. A copy of the summons was also sent by the Railway Board to the office of the General Manager, Northern Railway. It was also stated that the summons was also served on the clerk of the office of the General Manager, Northern Railway, directly. It was further averred that the office of the General Manager, Northern Railway, then sent the summons to the office of the Divisional Railway Manager. Northern Railway, New Delhi, as the case did not relate to the headquarters office of the Northern Railway. It was then averred that the summons were misplaced somewhere in the office of the Divisional Railway Manager and consequently they could not reach the concerned official who deals with the legal cases on behalf of the Northern Railway. It was then pleaded that the summons having been misplaced without their having reached the Legal Branch of the Divisional Railway Manager, no date of hearing was noted by anyone and consequently none appeared in the Court on 10-1-1980 when the case was fixed. It was further stated that the plaintiff (respondent herein) wrote a letter dated 25-8-1980 to the Secretary, Railway Board, which was received by the said office on the same date and it was on receipt of that letter that the Railway Board came to know about the ex parte decree having been passed by the Court on account of non-appearance of any of the defendants. It was also stated that thereafter the Railway Board immediately approached the office of the General Manager, Northern Railway and informed him of the passing of the ex parte decree against the Union of India. A copy of the judgment was also sent by the plaintiff (respondent) along with the letter dated 25th Aug. 1980. It was pleaded that the non-appearance of anyone on behalf of the defendants 10-1-1980 was not intentional and was for the reasons that the summons which had been sent by the office of the General Manager, Northern Railway, to the office of the Divisional Railway Manager, Northern Railway. New Delhi, was misplaced somewhere and nobody knew about the date of hearing and thus there was sufficient cause for non-appearance of anyone on behalf of the defendants on 10-1-1980. It was in these circumstances that the defendant prayed for setting aside of the ex parte decree.
5. Along with this application an affidavit was filed by Shri Raja Ram. Superintendent, Legal Branch of the Divisional Railway Manager's office. Northern Railway, New Delhi, stating inter alia that the summons were sent by the office of the General Manager to the office of the Divisional Railway Manager vide entries Nos. 86 and 91 but the same were misplaced in the office of the Divisional Railway Manager and they never reached him. He also stated that he is a concerned official who deals with legal cases in the Divisional Railway Manager's office and neither the summons nor the plaint of the above case reached him. As the summons did not reach him the date of hearing was also not noted by him and consequently none appeared on behalf of the defendants on the date the suit was fixed for hearing.
6. The application was opposed on behalf of the plaintiff and he disputed that there was any sufficient cause for non-appearance of the defendants in spite of service. The plaintiff also pleaded that the application was barred by time.
7. Normally such applications are decided on affidavits but it appears that the matter was set to trial by leading evidence.
8. In support of their case, the Union of India examined as many as seven witnesses.
9. The first witness examined was Shri Birbal (A.W 1), a clerk in the office of Northern Railway, Headquarters Branch. He deposed that both the summons issued to Union of India (i) in the office of the Railway Board and (ii) in the office of General Manager, Northern Railway, were received on 24th Dec. 1979 and 7th Dec. 1979 respectively and these were sent to the office of the Divisional Superintendent, Northern Railway, vide documents A.W 1/1 and A.W 1/2. The summons which was served on the General Manager. Northern Railway, was despatched on 10th Dec. 1979 whereas the summons sent to the Railway Board was despatched on 24th Dec. 1979.
10. Thereafter, Sh. Pyare Lal (A.W 2), a Senior Clerk in the office of the Divisional Railway Manager, Receipt Branch, was examined. He inter aila stated that only one summons was received on 26th Dec. 1979 which was sent by him vide a dak slip A.W 2/1 to the Personal Branch and this was the summons which had been received from the office of the Railway Board. He also deposed that no other summons was received in the office of the Divisional Railway Manager in relation to any case of the plaintiff.
11. The Union of India then examined one Smt. Pinki Sabharwal (A.W 3), a clerk in the office of the Divisional Railway Manager. She inter alia stated that she receives dak from the Receipt Branch and on 26th Dec. 1979 she was on leave. She stated that she has brought the dak register. She also stated that in her absence somebody else was working. She also deposed chat in the dak register there is no entry whatsoever of the dak receipt from 25-12-1979 to 1-1-1980. The entries are only up to 24-12-1979. She also deposed that the dak in respect of entries Nos. 240 to 293 dt. 17-12-1979 was received but the entire dak was missing.
12. The next witness examined was one Smt. Indu Chopra (A.W 4), clerk in the office of Divisional Railway Manager working in Pivot Section (Personal Branch) from 1-1-1980. She stated that there is no entry of 26th Dec. 1979 at all. She also stated that, she received the summons of 24-12-1979 at entry No. 439 and she got it entered with the Bills (4) Branch on 10-1-1980. Of its own this witness was not necessary to be produced but the next witness (A.W 5) was Smt. Kamla Topo. H. C., Divisional Railway Manager's Office, Bill Section, she proved receipt of one summons on 24-12-1979 which was entered on 10-1-1980. The idea of producing A.W 4 and A.W 5 is to correlate a particular summons as relating to a case of Saharanpur and not relating to the case of the plaintiff.
13. Thereafter the Union of India examined Shri Raja Ram (A.W 6). Chief Law Assistant, Divisional Railway Manager's office and he stated that he deals with Court cases and summons relating to staff, Delhi Section. He also stated that no summons was received by him in relation to the plaintiff.
The next witness examined on behalf of the Union of India was Shri. H.L Bajaj (A.W 7), Desk Officer, Establishment General Branch, Railway Board, New Delhi. He inter alia stated that whenever summons are received from the Courts, in case the name of Zonal Railways are mentioned in the same, they are sent to the concerned General Manager of that Zonal Railway for necessary action. He further stated that the summons pertaining to the case of the plaintiff was received in his office and it was forwarded to the General Manager. Northern Railway, on 18-12-1979 and the forwarding copy of the letter is Ext. A.W 7/1.
14. The plaintiff examined two witnesses (1) Pritma Ghosh and (ii) himself, and proved that he sent two letters dt. 14-7-1980 and 12-8-1980. Another letter addressed by the plaintiff to the Railway Board is dt. 25-8-1980.
15. I may mention that all these three letters were addressed to the Secretary, Ministry of Railways (Railway Board), New Delhi.
16. The Union of India admitted the receipt of letter dt. 12-8-1980 on 25-8-1980.
17. The learned trial Court held that the Office of the General Manager, Northern Railway, was served on 7-12-1979 and the office of the Railway Board was served on 24-12-1979. The learned trial Court also found that the loss of summons is not sufficient cause for non-appearance on the date fixed for hearing of the suit. The learned trial Court also cast doubt on the evidence which was led as to the proof of loss of summons.
As stated earlier the Union of India went up in appeal and the appellate court dismissed the appeal and held that there was service of summons (which was in fact admitted) but held that the Union of India cannot take advantage of misfeasance or non-feasance of its officers if they lost the summons. But, no finding was given whether if loss has in fact occurred of summons, it would construes sufficient cause or not. No finding was also given whether there was in fact loss of summons or not.
18. Normally speaking in revision this Court is not concerned with questions of fact. This Court is concerned if there is any error of jurisdiction or material illegality or irregularity, in exercise of jurisdiction.
19. Application under O. 9 R. 13 lies if the party is not served or he shows sufficient cause for non-appearance on the date for which he was served. There is thus two parts of O. 9, R. 13.
20. In this case it was admitted case that the defendants had been served. The only dispute is whether there was sufficient cause for their non-appearance on the date fixed or not. I have already noticed the evidence led by the Union of India and it transpires that after the summons which was addressed to the General Manager. Northern Railway was received by the clerk concerned on 7-12-1979 and he also forwarded the same to the Divisional Superintendent of Northern Railway vide letter Ext. AW. 1/1 but the same did not reach even the first step namely the office of the Divisional Railway Manager or Divisional Superintendent's office.
The summons which was served on the Railway Board was received by the office of the General Manager on 24-12-1979 and the same was also sent to the office of the Divisional Superintendent, Northern Railway, on the same date vide. Ext. AW. 1/2.
21. Shri Pyare Lal, who appeared as A.W 2 admitted the receipt of these summons from the headquarters. He stated particularly that he received no other summons. The Divisional Railway Manager's office. Receipt Branch, then forwarded the summons which was received vide Ext. AW. 1/2 to the Personal Branch vide Ext. A/W. 2/1. Thereafter the Union of India examined AW. 3 and A.W 4 and it transpires from their evidence that the Pivot Section (Personal Branch) of the office of Divisional Railway Manager did not receive the summons. It is also clear from the statement of Shri Raja Ram (AW. 6) that he never received any summons in this case which he normally receives as he is the person to whom the summons are being sent for attending the Court. It is true that Shri Raja Ram had not taken the register with him where these summons are regularly entered, but no effort was also made by the plaintiff to call that register to be produced.
22. I have no reason whatsoever to disbelieve any of the witnesses produced on behalf of the petitioner. It is not a personal matter of their that they would come to depose out of way against the plaintiff.
23. It is clear from their evidence that after the summons which was sent to the General Manager Northern Railway, the same was receipted by their clerk but it never reached the office of the Divisional Railway Manager. So far as the summons which was sent to the Railway Board is concerned it reached till the Divisional Railway Manager's office but from there it never reached the Pivot Section (Personal Branch). It is also clear that in the register of Receipt and Despatch Branch there is no entry of any summons or any documents from 25-12-1979 to 1-1-1980 and therefore it appears to have been lost in transit and it never reached to the Law Department.
24. It may be due to the negligence of one peon or the other but the question is whether it amounts to sufficient cause or not.
25. To my mind the approach of both the Courts below is totally erroneous. It certainly amounts to sufficient cause. The Government departments function through their officers. They may be liable for misfeasance or nonfeasance towards Government. It was nobody's case that the summons were deliberately misplaced or there was any mala fides. The summons were lost in transit and within the meaning of O. 9 R. 13 of the Civil P.C there was sufficient cause for non-appearance of the defendants on the date of hearing fixed in the suit.
26. It was then contended that the application was barred by time and in this connection Shri Ishwar Sahai, learned counsel for the respondent, brought to my notice three letters, which were addressed by his client to the Secretary, Ministry of Railways, (Railway Board), New Delhi.
It will be noticed that whenever Union of India is to be sued, it has to be sued through the Secretary of the Ministry concerned. In the case of Railways, parties are allowed to sue through the General Manager of the Railways concerned. In this case since the suit related to Railways. Union of India could be served through the General Manager. Northern Railway. There is no meaning of suing Union of India through Railway Board. Railway Board is different from the Ministry of Railways. Railway Board has a separate entity. The executive authority in connection with the administration of Railways in India vests in the Central Government in the Ministry of Railways by virtue of Indian Railways Act. Railway Board has merely been vested with certain, powers by the Central Government. In fact in the case of K.N Shukla v. Navnit Lal Manilal Bhatt, AIR 1967 SC 1331 at p. 1334 in para 8, the distinction of Railway Board and the Ministry of Railways has clearly been brought out.
27. All the three letters, even if I assume for the sake of arguments were sent by the plaintiff namely 14-7-1980, 12-8-1980 and 25-8-1980, they were sent at the wrong place. By sending these letters to the Railway Board, the Union of India cannot be fixed with knowledge of passing of the decree. In fact it is stated in the application that the letter dt. 12-8-1980 was received in the office of General Manager, Northern Railway, only on 25-8-1980 and therefore the authority concerned got merely an idea that the decree has been passed and as an ordinary citizen spent some time to find out how it has happened.
28. The Union of India had filed the application in Court on 17-9-1980. Even if there was knowledge acquired by them. I would condone delay under Sec. 5 of the Limitation Act in the circumstances of the case.
29. The result is that the orders of the courts below are set aside and the ex parte decree dt. 26th May, 1980 passed by the trial Court and the ex parte proceedings are set aside and the Union of India is allowed to contest the suit.
30. Parties are directed to appear before the trial Court on 21-2-1983. There shall be, however, no order as to costs of the present proceedings.
Revision allowed.
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