Patna High Court
Mostt. Sundari And Anr. vs Sakal Sahni And Ors. on 1 September, 1972
Equivalent citations: AIR1973PAT150, AIR 1973 PATNA 150
ORDER G.N. Prasad, J.
1. The petitioners are the plaintiffs of Title Suit No. 191 of 1964, in which an ex parte decree was passed in their favour on the 5th February, 1970. On the 29th May, 1970, the defendant first party applied under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on the ground that he was prevented by sufficient cause from appearing in court when the suit was called on for hearing on the relevant date. The sufficient cause thus propounded by the defendant was to the effect that he had been relying upon the defendant second party to give him the requisite information for taking requisite steps on the different dates in the suit, but the defendant second party went in collusion with the plaintiffs and did not inform the defendant that the suit was going to be taken up for hearing or that an ex parte decree had already been passed therein. The case of the defendant further was that on the 2nd May, 1970, he filed a petition for inspection of the records and the records were inspected on the 5th May, 1970, when the defendant learnt for the first time that an ex parte decree had already been passed in the suit on the 5th February, 1970.
2. The learned Additional Munsif has accepted the case put forward by the defendant and has come to the conclusion that on account of betrayal of confidence reposed by the defendant in the defendant Second Party, he was prevented by sufficient cause from appearing in court on the 5th February, 1970, when the suit was called on for hearing. The learned Additional Munsif has further accepted the defendant's case to the effect that he derived knowledge of the ex parte decree as a result of the inspection of the records on the 5th May, 1970.
3. The learned Additional Munsif was then faced with the question of limitation which had to be decided under Article 123 of the Limitation Act 1963. That Article provides a period of thirty days for making an application to set aside an ex parte decree; the starting point of the period of limitation being "the date of the decree or where summons or notice was not duly served, when the applicant had the knowledge of the decree". The instant case was not one where the summons in the suit had not been served upon the defendants so that the starting point of limitation period of thirty days could not possibly run from the date of knowledge of the decree which, in the present case, as found by the trial Court Was the 5th May, 1970. The starting point of limitation in the present case was undoubtedly the 5th February, 1970, which was the date of the ex parte decree which was sought to be set aside under Order IX, Rule 13 of the Code of Civil Procedure. The learned Additional Munsif was conscious of the legal position as indicated above. So he proceeded to give relief to the defendant under Section 5 of the Limitation Act. It may be mentioned here that actually no formal petition for condonation of the delay in presenting the application under Order IX, Rule 13 of the Code of Civil Procedure had been filed on behalf of the defendant. Even then it was incumbent upon the defendant to satisfy the court that he was prevented by sufficient cause from making an application under Order IX, Rule 13, Civil Procedure Code within the period of limitation. Upon the finding that the defendant got knowledge of the ex parte decree on the 5th May, 1970, it may be assumed, that the learned Munsif was satisfied that the defendant had sufficient cause for not making the application prior to the 5th May, 1970. But the learned Munsif went a step further and from the mere circumstance that the defendant had no knowledge of the ex parte decree prior to the 5th May, 1970, he jumped to the conclusion that the defendant had explained the delay in filing the application right up to the 29th May, 1970. This conclusion of the learned Additional Munsif is due to a complete mis-appreciation of the scope of Section 5 of the Limitation Act. It is well settled that in order to avail of the benefits of Section 5, the party at default must satisfy the court that it had sufficient cause for not making the requisite application right up to the date on which the application is presented. In other words, the party at default must satisfactorily explain or account for each day's delay in making the application. Unless the Court is satisfied in respect of each day's delay in making the application, it has no authority in law to condone the the delay under the provisions of Section 5 of the Limitation Act. Reference in this connection might usefully be made to Sitaram Ram Charan v. M. N. Nagrashana, AIR 1960 SC 260 at p. 265, where their Lordships observed thus:--
"It cannot be disputed that in dealing with the question of condoning delay under Section 5 of the Limitation Act the party has to satisfy the court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this has always been understood to mean that the explanation has to cover the whole of the period of delay ........."
To the same effect is the decision of their Lordships in Ramlal v. Rewa Coal Fields Ltd., AIR 1962 SC 361. At page 364 of the report it was observed as follows:--
"..... In other words, in all cases falling under Section 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day precribed for filing the appeal and the day on which the appeal is filed. ........."
It is manifest, therefore, that the learned Additional Munsif could not condone the delay under Section 5 of the Limitation Act unless he was satisfied that even after the 5th May, 1970, the defendant had sufficient cause for not applying under Order IX, Rule 13, Civil Procedure Code Until the 29th May, 1970. In fact, there is nothing on the record from which it could legitimately be inferred that the defendant had explained the delay between the 5th May, 1970 and the 29th May, 1970. Therefore, the learned Additional Munsif could have no jurisdiction to extend the benefits of Section 5 of the Limitation Act to the defendant,
4. Learned Counsel for the Opposite Party has, however, relied upon two decisions, one of this Court and another of the Supreme Court, which I propose to notice. The decision of this Court upon which the learned Counsel relies is a Bench decision in Most. Nagina Devi v. Brij Nandan Pd. Sinha, AIR 1972 Pat 310, There the period of limitation was held to have begun to run from the date of knowledge of the proceeding in question. The reason obviously was that, that was a case in which notice had not been served upon the defendant. In other words, that was a case which was covered by the second part of the provision contained in the third column of Article 123 of the Limitation Act. The present is not a case in which the summons in the suit had not been served upon the defendants at all. The Bench decision of this Court is, therefore, of no avail to the defendants here. The Supreme Court decision relied upon by learned Counsel is Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336. The proposition there laid down was that in exercise of its revisional jurisdiction under Section 115 of the Code of Civil Procedure, it is not permissible to the High Court to question the findings of fact recorded by a Subordinate Court since Section 115 of the Code applies to cases which involves question of jurisdiction, i.e., questions regarding irregular exercise or non-exercise or illegal assumption of jurisdiction by a court. It is not directed against the conclusion of law and fact in which questions of jurisdictions are not involved. A perusal of the judgment of their Lordships of the Supreme Court, however, makes it abundantly clear that the High Court would be entitled to interfere in exercise of its revisional jurisdiction where a question of limitation has been decided upon a wrong view of the law. The High Court would not enter into the findings of fact on the question of sufficient cause so long as it has been arrived at in accordance with law. But where the very scope of Section 5 of the Limitation Act has been mis-appreciated, as in the instant case, it would be legitimate for this court to interfere under Section 115 of the Code of Civil Procedure. A perusal of the impugned order gives me the impression that the learned Additional Munsif felt satisfied that the defendant had made out a sufficient cause within the meaning of Section 5 of the Limitation Act from the very circumstance that he had no knowledge of the ex parte decree prior to the 5th May, 1970. This finding has been arrived at in contravention of the principle underlying the applicability of Section 5 of the Act as explained in AIR. 1960 SC 260 and AIR 1962 SC 361. That being so, in my opinion, it is permissible for this Court to interfere with the decision of the learned Additional Munsif in exercise of its revisional jurisdiction,
5. Learned Counsel for the Opposite Party drew my attention to the fact that since after the passing of the impugned order the title suit in question had been dismissed for default, and a petition filed by the plaintiffs for its restoration is pending in the court below. This circumstance can have no bearing to the question which I am called upon to decide, namely, whether the learned Additional Munsif was justified in setting aside the ex parte decree passed on the 5th February, 1970, in the circumstances of the present case.
6. For the aforesaid reasons, I have come to the conclusion that the learned Additional Munsif had no jurisdiction to set aside the ex parte decree even upon the acceptance of the defendants' case as presented before him. I, therefore, set aside the impugned order and allow this application. In the circumstances of this case there will be no order as to costs.