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Civil Revision Application No. 306 of 1960, decided on 29th September 1961.
‑Not confined necessarily to ex parte decrees under O. IX, Civil Procedure Code (V of 1908)‑Article 164 of general import.
---‑Time‑barred suit- Court bound to dismiss‑Wrong decision that suit is not time‑barred amounts to wrong assumption of jurisdiction‑Decision, however, stands until set aside in appeal, revision or review.
Appellate Court requisitioning record of suit in appeal against discharge of temporary injunction‑No stay order passed by appellate Court‑Lower Court not debarred from proceeding with suit nor does it lack jurisdiction.
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Holiday‑Court closed‑Litigant to appear next day.
‑Clerk of another Court not an agent of Court seized of case‑Recourse of counsel to such clerk by mistake for information about case resulting in ex parte decree being passed by Court seized of case‑Blame for such result does not lie with Court but with counsel.
‑Ex parte‑Application to set aside an ex parte decree‑Must be in substance an application " to set aside " such a decree‑Merely attacking order' permitting ex parte proceedings not enough‑Civil Procedure Code (V of 1908), O. IX, r. 9.
40 I A 151; PLD 1958 PC 79 and AIR 1945 PC 48 not applicable.
Paul William's case P L D 1960 Kar. 174 distinguished.
Azmatullah for Applicant.
Sadique Ghulamali for Respondent.
Dates of hearing : 18th and 19th September 1961.
The applicant in revision, plaintiff fn the suit, contends that the Second First Class Sub‑Judge (Mr. Moazzam Ali) should have dismissed as barred by limitation an application made under section 151, C. P. C., by the opponent, defendant in the suit, to set aside an ex parte decree passed by him on 27‑4‑1960.
The relevant history of the case and the substance of the application under section 151 and the supporting affidavits is well stated by the learned Sub‑Judge as follows:‑
"The case was originally fixed for 16‑3‑60 for parties' evidence. On that day, the plaintiffs' counsel moved an application for adjournment on the ground that he was busy before the Hon'ble High Court. So the matter was adjourned by consent for 21‑4‑60 for the same purpose. In the meantime, that day was declared to be a closed holiday. Consequently the matter was taken up on 22‑4‑60, being the next working day. On the case being called, the defendants and their counsel failed to put in an appearance. So the matter was adjourned to 27‑4‑60 for ex parte proof and orders. The defendants and their counsel again failed to appear and suit was decreed ex parte‑
3. The present application under section 151, C. P. C., was filed on 29‑7‑60 Le. about 3 months after the date of the afore said ex parte decree. It is supported by an affidavit, sworn by the junior of the defendants' counsel. It is alleged therein that the deponent had, by mistake, noted the designation of the Court as 1st Sub‑Judge, being the Court where the case was previously pending. So, on 22‑4‑60, he made enquiries in the Court and learnt that the file had been sent to the Appellate Court. As a matter of fact, a requisition from the Appellate Court had actually been received in that Court before the file was transferred to this Court. Consequently, the deponent did not make any further enquiry about the date of hearing of the original suit. It is further alleged that all this was done through a bona fide mistake. Swaleh Muhammad being one of the defendants, has also sworn an affidavit to the above effect. It is further alleged in his affidavit that the ex parte order, having been passed on a date not fixed for hearing, is illegal, void and without any effect."
The learned Sub‑Judge held that the case had not been ad journed to the 22nd as contemplated by Order XVII, rule 2, relying on Ramlal Gope and others v. Kali Prasad Sahu and others (A I R 1929 Pat. 609), which covered the point of a case fixed on a public holiday and taken up without notice on the next working day, and distinguishing S. M. Raja Goundar and others v. Choolai Sabapathi Mudaliar (A I R 1952 Mad. 798), where in the absence of the presiding officer on leave on the date fixed, the Chief Ministerial Officer fixed the date for the next hearing.
The learned Sub‑Judge held that the ex parte order had been passed without jurisdiction, and was therefore a nullity, and therefore the proper remedy was an application under section 151, and therefore Article 181, and not Article 164 of the Limitation Act, applied.
The question whether Article 164 applies in this case depends firstly upon the meaning of this Article which reads as follows:
| Description of application | Period of Limitation | Time from which period of limitation runs. |
| 164. By a defendant for an order to set aside a decree passed ex parte. | Thirty days. | The date of the decree or, where the sum mons was not duly served, when the applicant has know ledge of the decree. |
If upon a correct interpretation of the Article it applies to the present application, then section 151 cannot prevent its application.
The defendant contends that, the Court not having followed the provisions of Order XVII regarding adjournment, its pro ceedings purporting to be under Order IX read with Order XVII were not in fact such proceedings, and hence the provision made in Order IX for an application to set aside an ex parse decree does not apply. He argues that Article 164 upon its true construction applies only to an application falling under Order IX. and does not apply to an application not falling under Order IX. Here I think the defendant is wrong. The Article speaks simpliciter of an application to set aside an ex parte decree, and to adopt the defendant's interpretation would involve reading A into the generality of that expression a limitation not expressed. Now it is true that a limitation may be so imported into a provision of the Limitation Act to prevent an absurdity: the Privy Council decided regarding section 19 that the transferer's acknowledgement must be limited to the period before the transfer. But here I can see no absurdity requiring a limitation on the generality of the words of the Article. If a defendant has not been served or no summons issued, limitation runs from the date of his knowledge. If he has been served, then a defendant must keep himself informed of the progress of the case.
The second point is whether the application was in substance an application to set aside an ex pane decree : it is true that it also impugned the order of the 22nd directing ex parte proceedings, but that order was merely a step in the process of issuing an ex pane decree. This is not a case of an ex parte decree passed against a dead man, whose legal representatives need only take proceedings for substitution (40 I A 151). Still less is it a case
of a decree passed by a person who was not a Court (Vide Chief Kofi Farfie v. Barima Kwabena Seifah P L D 1958 P C 79 and A I R 1945 P C 48 and thus a nullity. The case decided by myself in P L D 1960 Kar. 174 (second paragraph) is also distinguishable : in that case restoration of a dismissed suit was made without notice to the defendant and an ex parte decree was passed. I held that the Court was right in setting aside its restoration order ; the further proceedings were a superstructure built upon an act of the Court, which, having harmed the defendant, could be set aside In Its Inherent jurisdic tion. Unless the suit was duly restored, the previous decree of dismissal was in force.
Counsel argued that the ex parte proceedings was a nullity on the ground that the Court had no power to take up the case on the 22nd. Assuming as held by the Patna High Court that the Court was not "justified," yet that is a very different, matter from committing a nullity. It is implicit in the Court's order that the Court held that the defendant should have appeared on the 22nd ; its decision may be right or wrong, but it had jurisdiction to make that decision. For instance, a Court is bound to dismiss a suit which is time‑barred, and if its decision that the suit is not time‑barred is wrong, then it has in fact wrongly assumed jurisdiction, but until its decision is set aside in revision, appeal or possibly review, that decision stands. Secondly with great respect I do not consider that the Court was "unjustified" in taking the case up on the 22nd; if a Court is closed for a holiday, the litigant must appear the next day. The normal rule is that a case proceeds de die in diem.
The further argument taken in this Court depends upon the plea in the affidavit that the Counsel was informed that the record and proceedings had been requisitioned. It is true that the Appellate Court had requisitioned the Record and Proceedings in the matter of an appeal against the discharge of a temporary, injunction. No order of stay, however had been passed. Thus the Sub‑Judge was not debarred from proceeding with the suit, and did not lack jurisdiction. Further by mistake the junior counsel, so he swears, went to the Court of the First Sub‑Judge where the suit had originally been pending, and it was the clerk of that Court who informed him that a date would be fixed only after it was received back from the Appellate Court. Now it seems incredible that that clerk would not inform the Advocate that the case had been transferred to the Court of the Second Sub‑Judge and the counsel should have gone to the proper Court to inquire; assume however that that clerk did not so inform the Advocate, yet he had no authority in the case; for he was not an agent of the Court seized of the case. Thus this is not a case where the Court itself is to blame: the negligence of counsel is responsible.
Thus the proceedings of the Court were neither without jurisdiction nor had the defendant been deceived by the Court. I therefore grant this petition with costs and set aside the order of the learned Sub‑Judge setting aside the ex parte decree.
A. H.
Petition accepted.
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