MAHABIR SINGH v. SUBHASH AND ORS

Citation: [2007] 11 S.C.R. 436

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

MAHABIR SINGH v. SUBHASH AND ORS.pdf

Judgment text

-r~ MAHABIR SINGH v. SUBHASH AND ORS. OCTOBER 12, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] ~ "f Limitation Act, 1963-Section 3 and Schedule Article 123- Limitation for filing application for setting aside ex-parte decree- Non-appearance ofdefendant despite delivery ofsummons-Ex-parte decree-Application for setting aside the decree after its execution- Defendant admitting to the effect that he had knowledge ofthe decree one and halfyears prior to filing ofapplication-Maintainability of the application-Held: Application was not maintainable-Defendant was unable to establish absence ofservice ofsummons-Application was also barred by limitation-Code ofCivil Procedure, 1908-0r. 9 r. 13. An ex-parte decree was passed on 19. 2. 1986, in a suit filed by the appellant, as the respondent-defendant did not appear in the court despite service ofsummons on him. An application for mutation on the basis thereofwas allowed on 7. 3. 1996.

Respondent filed application for setting aside ofthe ex-parte decree on 7. 2. 1997. The respondent in his cross-examination admitted that he had approached the appellant for not giving effect to the decree one and a halfyear prior to filing ofthe application. Trial Courtdismissed the application. Appeal thereagainst "'\was also dismissed. High Court allowed the Revision application, on the ground that summons were not properly served and the appellant had not taken recourse to publication in the Newspapers. Hence the present appeal. Allowing the appeal, the Court )..... HELD: 1. The approach ofthe High Courtwas not correct There ! MAHABIR SINGH v. SUBHASH 437 exists a presumption that the officialact has been done in ordinary course ofbusiness. Admittedly, an ex-parte decree was passed. Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the date fixed for hearing the suit ex-parte.

[Para 6J [440-E, F] 2. Article 123 ofthe Limitation Act, 1963 provides for30 days time j for filing such an application. Even assuming for the sake ofargument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service of summons was irregular, evidently, itwas for the defendant-respondent to establish as to when he came to know about the passing ofthe ex-parte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not givingeffectthereto one and halfyear prior to filing ofthe application, and, thus, he must be deemed to have knowledge about passing ofthe said ex-parte decree. The period oflimitation would, thus, be reckoned from that day.

As the application under OrderIX Rule 13 CPC was filed one and a halfyear after the first respondent came to know about passing ofthe ex-parte decree in the suit, the said application evidentlywas barred by limitation. In terms of Section 3 of the Limitation Act, 1963, no court shall have jurisdiction to entertain any suit or application ifthe same has been filed after expiry ofthe period oflimitation. The High Court could not have ignored the said jurisdictional fact. [Paras 7, 8 and 9] [440-F; 441-C, D, E, F] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4881 of _y 2007. From the Judgment and final Order dated 14. 02. 2005 ofthe High Court ofPunjab and Haryana at Chandigarh in Civil Revision Petition No. 5999 of 2003. A. Nehra, Gagandeep Sharma and Rameshwar Prasad Goyal for the Appellants. Manjit Singh, B. K. Satija and D. Mahesh Babu for the Respondents. The Judgment ofthe Court was delivered by {'- S. B. SINHA, J. 1. Leave granted. 2.

Appellant is before us being aggrieved by and dissatisfied with a judgment and order dated 14. 2. 2005 passed by the High Court ofPunjab and Haryana in Civil Revision Petition No. 5999 of2003 whereby and whereunder the Revision Application filed by the first respondent herein was allowed. 3. Appellant filed a civil suit on or about 6. 4. 1985. Summons ofthe suit were served upon the first respondent. He did not appear. An ex parte decree was passed against him on 19. 2. 1986. An application for mutation on the basis thereofwas filed which was allowed on 07. 03. 1996. Allegedly, the first respondent having come to know about passing ofthe said ex parte decree on 03. 02. 1997, filed an application on 07. 02. 1997 for setting aside the same, in terms ofOrder IX Rule 13 ofthe Code of Civil Procedure. The learned Trial Judge, by reason ofan order dated 28. 07. 2000, dismissed the said application, inter alia, holding that summons had been duly served upon the first respondent.

It was furthermore noticed that the first respondent herein, while examining himself in the said proceedings under Order IX Rule 13 of the Code of Civil Procedure in his cross-examination, admitted that one and a halfyear prior to filing ofthe said application, he and his brother approached Dharam Singh for getting the judgment and decree set aside but he negated their plea. 4. An appeal was preferred thereagainst. The Appellate Court also affirmed the said finding holding : "12. In this case, Ex. Al to Ex. A3 are the record of ownership "\'. which is not disputed. Ex. R3 I the copy ofsummon which clearly shows that Subhash refused to accept the service ofsummons. It also shows that the copy of summons was also affixed on his house. This report is duly attested by clerk ofCourt as per Ex. R4/ B and affidavit has also been given by Jogi Ram process server and affidavit has also been given by Jogi Ramprocess server and ~ Subhash was to appear in court on 7. 5.

85 but he did not appear in the court and then the coUit has ordered for substituted service. j But after munadi effected in the village also, the defendant failed to appear in court as per Ex. RI, Ex. R2 is the report of Ram Mehar, process server who got effected the munadi. No doubt Nand Lal Chjow'tcidar has denied his thumb impression but it carried no help to the defendant in view ofthe statement ofRW-1 Ram Mehar, process server. There is no report on the file that the summons does not bear the thumb impression of Nand Lal } Chowkidar. Statement ofPW2 Nand Lal is selfcontradictory as he has pleaded that he has no knowledge that the process server has affixed the copy ofsummons on the house of Subhas. He has also stated that he has no knowledge that about ten years back court officials brought this summon to him. He has shown his ' ignorance about the pendency ofthe case. He has also shown his ignorance about the munadi effected by him twelve years back.

He has even not been able to tell that he was shown as a witness. There is no reason to disbelieve the statement of Ram Mehar,, D process server with regard to the report of refusal of Subhas, appellant RW-2 Dilbag Rai Jain has also proved that the summon were duly executed upon the defendant who refused to accept the same. So there is no illegality or irregularity in thie service of summons. Rather the learned trial court has given doubl~ opportunity not only after the refusal by the defendant to appear in the court but as well as by getting the defendant served througq munadi. Since the defendant intentionally did not appear in the court so the learned trial court has rightly passed the exparte judgment and decree dated 19. 2. 86. 13. Admittedly the decree under challenge was passed in the year 1986 while the present application for setting aside the ex parte judgment and decree was filed on 6. 2. 97 i. e. almost after eleven years of passing of the impugned decree.

So far as the delay iμ filing the application is concerned, no doubt the defendant has trie~ to prove that he came to know recently about the decision oft~e case but this version is not tanable when PWl Ram Mehar, proce~ served has categorically stated that about 1-1/2 years back he alongwith his brother, went to Dharam Singh and Dharam Singh told them that they have got no concern with the plot in question and that he would not set aside the decree. He has also stated that he has told his relatives that 10/11 days prior filing this application. This clearly shows that the defendant was well aware ofthe decree in question and he can file the present application within one month of the passing ofthe decree. He is to explain each days delay. So it can be safely eld that the application is time barred. Thus, the findings ofthe learned trial court recorded under issue No.

1 and 2 are hereby affirmed and these issues are decided against the appellant-defendant a11d in favour ofthe respondentsplaintiffs. 5. The Revision Application filed thereagainst by the first respondent herein was allowed by the High Court. The High Court in the impugned judgment opined that the appellant had played fraud on the Court as neither the summons were properly served, nor the publication was made in the newspapers. Order V Rule 19A ofthe Code of Civil Procedure, which, according to the High Court, could have been taken recourse to, had also not been resorted to. Adverse comments were also made by the High Court in regard to the application for mutation filed by the appellant only after 10 years, i. e. , in the year 1996. 6. The approach ofthe High Court, in our opinion, was not correct. There exists a presumption that the official act has been done in ordinary course of business. Admittedly, an ex parte decree was passed.

Defendant for getting it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining absent on the _date fixed for hearing the suit ex parte. "1-- 7. Article 123 ofthe Limitation Act, 1963 provides for 30 days time for filing such an application. The said provision reads thus : Description ofapplication Period of Time from which Limitation period begins to run 123. To set aside a decree Thirty days The date of decree or passed ex parte or to where the summons re-hear an appeal decreed or notice was not duly or heard ex parte. Served, when the applicant had Explanation:- For the knowledge ofthe Purpose ofthis article, decree. Substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not Be deemed to be due service. 8.

Thus, even assuming for the sake ofargument that no proper step was taken by the appellant herein for service of summons upon the respondent and/or the service ofsummons was irregular, evidently, it was for the defendant-respondent to establish as to when he came to know about the passing ofthe ex parte decree. Even in his cross-examination, the first respondent has categorically admitted that he had approached the appellant herein for not giving effect thereto one and halfyear prior to filing of the application, and, thus, he must be deemed to have knowledge about passing of the said ex parte decree. The period of limitation would, thus, be reckoned from that day. As the application under Order IX Rule 13 of the Code ofCivil Procedure was filed one and halfyear after the first respondent came to know about passing ofthe ex parte decree in the suit, the said application evidently was barred by limitation 9.

In tem1s of Section 3 ofthe Limitation Act, 1963, no comi shall have jurisdiction to entertain any suit or application ifthe same has been filed after expiry of the period of limitation. The High Court could not have ignored the said jurisdictional fact. 10. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed with costs. The counsel's fee assessed at Rs. I0,000/- (Rupees ten thousand only). K. K. T. Appeal allowed.