Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
PETITIONER:
GAUHATI UNIVERSITY
Vs.
RESPONDENT:
SHRI NIHARLAL BHATTACHARJEE
DATE OF JUDGMENT03/11/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1995 SCC (6) 731 JT 1995 (8) 206
1995 SCALE (6)398
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
The appellant-University was impleaded as a party
defendant to the Title Suit No. 61/90 on the file of the
Munsiff No. [1], District Karimganj in Assam. The suit was
posted for appearance on May 29, 1990 but the summons were
served on the appellant on May 28, 1990. He sent a letter to
the Court seeking adjournment. Though the case was adjourned
to July 19, 1990, the adjourned date was not intimated to
the University. In consequence, the University did not enter
appearance and the suit was ultimately decided ex-parte. The
appellant filed an application under Order 9 Rule 13 CPC to
set aside the ex parte decree. The Trial Court held that it
was barred by limitation under Article 123 of the Schedule
to the Limitation Act, 1963. On appeal, the High Court
confirmed the order. Thus, this appeal by special leave.
Column 3 envisages that limitation would run from the
date of the decree, or where the summons or notice was not
duly served, when the applicant had knowledge of the decree.
The question, therefore, is whether the appellant has been
duly served.
Order 5 Rule 6 CPC provides that :
"6. Fixing day for appearance of
defendant. - The day for the appearance
of the defendant shall be fixed with
reference to the current business of the
Court, the current business of the
Court, the place of residence of the
defendant and the time necessary for the
service of the summons; and the day
shall be so fixed as to allow the
defendant sufficient time to enable him
to appear and answer on such day."
Order 9 Rule 6 speaks of due service.
"6. Procedure when only plaintiff
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
appears. - (1) where the plaintiff
appears and the defendant does not
appear when the suit is called on for
hearing, then -
(a) When summons duly served.- if it is
proved that the summons was duly served,
the Court may make an order that the
suit be heare exparte;
(b) When summons not duly served. if it
is not proved that the summons was duly
served, the Court shall direct a second
summons to be issued and served on the
defendant;
(c) When summons served but not in due
time - if it is proved that the summons
was served on the defendant, but not in
sufficient time to enable him to appear
and answer on the day fixed in the
summons, the Court shall postpone the
hearing of the suit to a future day to
be fixed by the Court, and shall direct
notice of such day to be given to the
defendant."
It would thus be seen that when the summons is proved
to be duly served, then the limitation begins to run under
Article 123 from the date of decree. But when the summons,
though served, but the defendant had not had due time,
clause (c) Rule 6 of Order 9, envisages further notice to be
given, fixing a future date and the court shall direct
notice of such date to be given to the defendant. In this
case, admittedly, no such step had been taken.
It is seen that though notice was served on the
appellant on May 28, 1990 and the date fixed for appearance
was May 29, 1990, there was no time much less sufficient, to
reach the court for appearance on that date. While
adjourning the suit to July 19, 1990. the said date was not
communicated to the appellant, as envisaged in clause (c) of
Rule 6 of Order 9. Thus, the summons was not duly served.
The limitation began to run only when the appellant had
knowledge of the ex parte decree. From the date of the
knowledge, admittedly, the application was filed within 30
days. The courts below had not adverted to this aspect from
this perspective.
The appeal is accordingly allowed. The exparte decree
is set aside. The matter is remitted to the Trial Court. The
appellant shall appear on December 4, 1995 before the Trial
Court which would take such steps as are needed for filing
the written statement etc. No costs.