Patna High Court
Mt. Bibi Rafiquan vs Gopi Mahton And Ors. on 15 May, 1953
Equivalent citations: AIR1953PAT399, 1953(1)BLJR442, AIR 1953 PATNA 399
ORDER Choudhary, J.
1. This application by plaintiff 2 is directed against the order of the Subordinate Judge, 2nd Court, Patna, setting aside an ex parte decree passed in favour of the plaintiffs.
2. The petitioner along with opposite second party Nos. 8 to 17 instituted a suit for 'bhaoli' rent against the defendants opposite 1st party for the years 1354 and 1355 Pasli. Before the institution of the suit the defendants had filed an application for commutation of rent under Section 40 Bihar Tenancy Act, and the commutation proceeding was pending at the time the suit was filed. The defendants having failed to obtain an order in the Court below for stay of the hearing of the suit till the decision in the commutation case, moved this Court and obtained an order for stay of the suit, but this Court gave a direction that in case the defendants did not prosecute the commutation case diligently, this Court would reconsider the stay-matter.
Ultimately, however, as it appears from the order of the learned Subordinate Judge, the stay-order was vacated. On 12-2-1952, the learned Subordinate Judge received an intimation that the commutation case had been disposed of, and he, therefore, passed an order to put up the case on 18-2-52. On that date, that is, on 18-2-1952, the lawyers of the parties were informed that the suit would be taken up for hearing on 28-2-1952, and their signatures were taken on the order-sheet in token of the information being given to them. On 28-2-1952, however, the defendants did not appear, and the suit was decreed 'ex parte'.
On 1-5-1952, the defendants filed an application under Order 9, Rule 13, Civil P. C., for setting aside the ex parte decree alleging that they got knowledge of the decree on 23-4-1952. The learned Subordinate Judge accepted the contention of the defendants and set aside the ex parte decree. Against that order plaintiff 2 alone has come up to this Court in revision making the other plaintiffs as opposite party Nos. 8 to 17.
3. Mr. Ismaili appearing for the petitioner has contended that the 'ex parte' decree having been passed on 28-2-1952, the application filed by the defendants for setting aside that decree on 1-5-1952, was much beyond time, and the court below was wrong in holding that the application was not time-barred. The relevant article applicable is Article 164, Limitation Act, which provides that limitation for an application by a defendant for an order to set aside a decree passed 'ex parte', is of thirty days to be counted from the date of the decree or, where the summons was not duly served, when the applicant has knowledge of the decree.
In this case there is no dispute about the service of summons on the defendants and the parties proceeded on the assumption that summonses were duly served on the defendants. That being so, the contention of the learned Counsel for the petitioner is that limitation in this case will not be counted from the date of the knowledge of the decree, or, in other words, the second part of Article 164 will not apply to that case and the application should have been filed under the first part, namely, within thirty days from the date of the decree.
In support of his contention he relied on --'Rajashwari Prasad Singh v. Brahmanand Lal, AIR 1933 Pat 279 (A), but in this case there was a finding that summonses were not served on the defendants and their Lordships held that limitation would run from the date of the knowledge of the decree. Their Lordships did not decide what would happen if the summonses had been found to have been duly served.
The next case on the point is -- 'Tara Sankar Ghose v. Nasaruddi'. AIR 1916 Cal 651 (B) in which a Division Bench of the Calcutta High Court held in circumstances similar to those in the present case that limitation would be counted from the date of the decree and not from the date of the tnowledse. Their Lordships observed that "Article 164 of the first schedule to the Limitation Act provides that an application by a defendant for an order to set aside a decree passed 'ex parte' may be made within thirty days from the date of the decree or, where summons was not duly served, when the applicant had knowledge of the decree."
A similar view was taken in -- 'Manindra Chandra v. Churamani Thapa', A. I. R. 1949 Assam 5 (C). In this case their Lordships held:
"In this case it is admitted that the defendants were duly served with notice. Therefore, the second or alternative date mentioned in Article .164, Limitation Act, is inapplicable here and limitation began to run in this case from the date of the decree itself."
There is an unreported decision of this Court in the case of -- 'Jogia v. Commr. of the Darbhanga Municipality', C. R. 605 of 1950, decided by Rai, J. on 8-5-1951 (Cal) CD), which has taken, the same view about this matter. In my view, the point is settled that in a case like this where the summons had been duly served on the defendants an application to set aside un 'ex parte' decree must be made within thirty days from the date of the decree under the first part of Article 164 and not within thirty days from the date of the knowledge of the decree as provided in the second part of that article.
4. Mr. Rameshwar Prasad appearing for the opposite party has contended that the court had jurisdiction to decide rightly or wrongly and it having decided that the application was not time-barred, acted within its jurisdiction, and this Court cannot interfere in revision. In support of his contention he has relied on -- 'Amir Hassan Khan v. Sheo Baksh Singh', 11 Calcutta 6 (E) and --'N.S. Venkatagiri Ayyangar v. The Hindu Religious Endowments Board, Madras', AIR 1949 PC 156 (P).
There is no doubt that the proposition of law enunciated by the learned Counsel gets support from these two decisions. There is, however a later decision of the Judicial Committee in -- 'Joy Chand Lal v. Kamalaksha Chaudhury', A. I. R. 1949 PC 239 (G). Sir John Beaumont in delivering the judgment, observed:
"If the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under subsection (a) or Sub-section (b) (of Section 115, Civil P. C.), and Sub-section (c) (of the said section) can be ignored. The cases of -- 'Bahu Ram v. Munna Lal', AIR 1927 All 358 (H) and-- 'Hari Bhikaji v. Naro Vishvanath', 9 Bom 432 (I) may be mentioned as cases in which a subordinate court by its own erroneous decision (erroneous that is in the view of the High Court), in the one case on a point of limitation and in the other on a question of 'res judicata' invested itself with a jurisdiction which in law it did not possess and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result."
It is thus clear that their Lordships of the Judicial Committee favoured the view of interference in civil revision if the court below had assumed jurisdiction by deciding wrongly the question of limitation. I, therefore, hold that, in the circumstances of the present case this Court has jurisdiction to interfere in revision.
5. The next point contended by Mr. Ismailee for the petitioner is that the findings of the Subordinate Judge are not based on evidence. There seems to be no merit in this contention. There is the evidence of A. W. 1 Ishwar Mahton and A. W. 2 Jadunandan Prasad, and relying on their evidence the court below has come to a finding that the defendants had no knowledge of the 'ex parte' decree prior to 23-4-1952. This is a finding of fact which is binding on me in civil revision.
In view of my finding on the first contention raised by Mr. Ismailee, it appears that the court below acted without jurisdiction, and this Court ordinarily should have interfered with that order, but the circumstances of the present case, as will be discussed presently, are such that I am not inclined to exercise any revisional power to interfere with the order of the learned Subordinate Judge. From the rent schedule Ext. 2 filed in the case it appears that the rent of the holding was commuted to Rs. 115/6/- and, therefore, the claim for two years' rent would amount to Rs. 2307127-besides costs and interest. But the plaintiffs had obtained an ex parte decree on the bhaoli basis for a sum of Rs. 1800/- for the two years.
Mr. Ismailee contends that the order passed in the rent commutation case is 'ultra vires' and without jurisdiction as all the landlords were not made parties to the proceeding. This is a matter on which I express no opinion, and it will be decided by the court below when the case goes back on remand. In view of the fact that instead of about Rs. 2307- the plaintiffs had obtained a decree for Rs. 13007 and in view of the fact that the case now goes back on remand, the parties are perfectly entitled to support their respective claims without prejudice to any one, and I think, the order, though erroneous, has only prevented an injustice, and I do not now wish to perpetuate an injustice by setting aside that order. Where justice has been done between the parties and no prejudice to their respective claims has occurred, it is not proper for me to exercise my revisions jurisdiction to interfere with that order.
6. I would accordingly dismiss the application, but, in the circumstances of the present case, there will be no orders as to costs of this Court.