JUDGMENT
Bhaskar Bhattacharya, J.
1. This civil revisional application under Article 227 is at the instance of heirs and legal representatives of a deceased defendant and is directed against Order No. 4 dated 18th May, 2004 passed by the learned Civil Judge (Sr. Division), Sealdah in Misc. Appeal No. 24 of 2002 thereby affirming Order No. 67 dated 30th March, 2004 passed by the learned Munsif, Second Court, Sealdah in Misc. Case No. 48 of 1994 rejecting an application under Order 9 Rule 13 of the Code of Civil Procedure filed by the predecessor-in-interest of the present petitioners.
2. The following facts are not in dispute:
The opposite party filed a suit being Title Suit No. 175 of 1989 in the Second Court of Munsif, Sealdah for eviction of one Motilal Shaw, the predecessor-in- interest of the present petitioners on the grounds mentioned in the Section 13 of the West Bengal Premises Tenancy Act, 1956. The said suit was decreed ex parte on 30th November, 1993.
3. In the month of April, 1994, Motilal Shaw filed an application under Order 9 Rule 13 of the Code of Civil Procedure for setting aside such ex parte decree on the specific ground that the summons was not served upon him. The said application gave rise to Misc. Case No. 48 of 1994.
4. The opposite party filed written objection to the said application under Order 9 Rule 13 of the Code of Civil Procedure thereby denying the allegations made in the application and it was specifically asserted that summons was duly served upon the defendant both through Court bailiff and under registered post with acknowledgement due. It was further stated in the said written objection that the petitioner was aware of the date of hearing of the suit but deliberately decided to refrain from contesting the suit and allowed the same to be decreed ex parte only for the purpose of harassing the opposite party.
5. At the time of hearing of the said application under Order 9 Rule 13 of the Code of Civil Procedure, one of the heirs of the deceased defendant filed affidavit-in-chief on behalf of the substituted heirs and in such affidavit-in- chief he specifically stated that his father received a notice of show-cause under Order 21 Rule 97 of the Code of Civil Procedure on 8th April, 1994 and with the said notice he accompanied his father to a learned Advocate and from the said learned Advocate after enquiry his father came to know that an ex parte decree was passed on 30th November, 1993. In the said affidavit it was further stated that the suit for eviction was initially dismissed for default on 1st April, 1992 and on an application under Order 9 Rule 4 of the Code, the said suit was restored on 13th June, 1992 but even thereafter, no summons had been served upon the father of the said deponent.
6. It appears that the opposite party did not file any evidence on affidavit nor did he cross-examine the deponent of the affidavit-in-chief given on behalf of the present petitioners.
7. The leaned Trial Judge by Order No. 67 dated 30th March, 2004 was pleased to dismiss the application under Order 9 Rule 13 of the Code filed by the original defendant on the ground that although the suit was decreed ex parte in the month of November 1993 and the application under Order 9 Rule 13 was filed on 20th April, 1994, no application under Section 5 of the Limitation Act was filed and the petitioner did not offer any explanation which prevented the defendant from filing the Misc. Case within time prescribed by law. The learned Trial Judge further held that evidence on affidavit was not supported by any corroborative evidence or document of the claim that due to ailment, the defendant could not contest the suit. The learned Trial Judge, thus, rejected the application mainly on the ground that the same was barred by limitation and in addition to such ground, stated that the summons issued to the defendant was duly served.
8. Being dissatisfied, the present petitioners preferred an appeal being Misc. Appeal No. 24 of 2004 before the learned First Appellate Court below and by the order impugned herein, the said Court has dismissed the appeal thereby affirming the order passed by the learned Trial Judge.
9. Being dissatisfied, the petitioners have come up with the present revisional application under Article 227 of the Constitution of India.
10. Mr. Ghosh, the learned Advocate appearing on behalf of the petitioners has made threefold submission in support of this application.
11. First, Mr. Ghosh has contended that the application under Order 9 Rule 13 of the Code having been filed on the ground of non-service of summons, the . said application was not barred by limitation inasmuch as the limitation starts- not from the date of passing of ex parte decree but from the date of knowledge of such ex parte decree. Mr. Ghosh contends that in evidence-in-chief one of the petitioners has specifically stated that his father had knowledge of such decree from the date of service of notice of the proceedings for police help and that such fact has not been controverted by either cross- examination of the deponent of the affidavit-in-chief or by giving any other evidence. Mr. Ghosh, thus, submits that both the Courts below acted illegally in holding, that the Misc. Case filed by the original defendant was barred by limitation.
12. Secondly, Mr. Ghosh points out that it appears from the records that the suit was initially dismissed for non-prosecution vide Order No. 18 dated 1st April, 1992 and thereafter on an application under Order 9 Rule 4 of the Code being Misc. Case No. 39 of 1992, the said order of dismissal was ex parte set aside and the suit was restored to file. Mr. Ghosh contends that even though no notice is required to be given before hearing an application under Order 9 Rule 4 of the Code, but after restoration of the suit, the defendant is entitled to a notice indicating that the suit has been restored and a date has been fixed for hearing. Mr. Ghosh submits that although the Court on restoration of the suit directed the plaintiff to take steps but the plaintiff without taking any step for giving notice to the defendant, prayed for fixing a date of ex parte hearing and the Court allowed such prayer. Mr. Ghosh, thus, contends that on that ground alone the subsequent ex parte decree should be set aside.
13. Thirdly, Mr. Ghosh contends that although, there is postal endorsement that the summons originally sent was refused by the original defendant and in the bailiffs report also, such fact is indicated but the original defendant having specifically denied service of summons, it was the duty of the plaintiff to examine either the postal peon or the process server who allegedly tendered the summons. Mr. Ghosh contends that in the absence of examination of either the postal peon or the process server of the Court, the learned Courts below could not rely upon the endorsement of the postal peon or process server. He, thus, prays for setting aside the orders passed by the learned Court below.
14. Mr. Chatterjee, the learned Advocate appearing on behalf of the opposite party has vehemently opposed the aforesaid contentions of Mr. Ghosh.
15. As regards the question of limitation, Mr. Chatterjee submits that it is the duty of an applicant under Order 9 Rule 13 of the Code to specifically allege in the application, the date of knowledge of the ex parte decree. In this case, Mr. Chatterjee continues, the defendant in the original application not having alleged such date of knowledge, the learned First Appellate Court below rightly refused to take into consideration the evidence of knowledge adduced on behalf of the defendants. Mr. Chatterjee contends that no evidence is admissible, unless there is supporting averments in the pleading of the parties. He, thus, justifies the reason assigned by the learned First Appellate Court below.
16. As regards the question of fresh service of notice upon the defendant after restoration of the suit under Order 9 Rule 4 of the Code, Mr. Chatterjee contends that once a suit is restored under Order 9 Rule 4 of the Code, the suit should commence from the stage when the suit was dismissed. Mr. Chatterjee submits that as the suit was dismissed for default when the same was fixed for ex parte hearing, there was no necessity of giving further notice upon the defendant.
17. As regards the findings of the learned First Appellate Court below that summons was served by registered post as well as by the process server, Mr. Chatterjee supports the reasons assigned by the learned First Appellate Court below and submits that in the case before us there was no justification of examining either the process server or the postal peon as the original defendant in the application under Order 9 Rule 13 of the Code mentioned that he had knowledge of pendency of suit and due to ailment he could not contact the lawyer.
18. Mr. Chatterjee, thus, prays for dismissal of this application.
19. The first question that arises for determination in this application under Article 227 of the Constitution of India is whether in an application under Order 9 Rule 13 of the Code on the ground of non-service of summons, a duty is cast upon the applicant to mention the date of knowledge of ex parte decree and whether in the absence of such averment, the Court can look into the evidence adduced by the applicant in support of the date of knowledge of such decree.
20. It is now well-settled that in proceedings under Order 9 Rule 13 of the Code, in view of Section 141 of the Code, the procedure provided with regard to suit shall be followed as far as practicable. Therefore, the rules of pleadings as mentioned in Order 6, Order 7 or Order 8 of Code will apply mutatis mutandis to the proceedings under Order 9 Rule 13 of the Code.
21. According to Order 7 Rule 1 of the Code, it is the duty of a plaintiff to state facts constituting cause of action and when it arose. Therefore, the same principle will apply to an application under Order 9 Rule 13 of the Code. The cause of action for filing an application under Order 9 Rule 13 arises on passing of ex parte decree. Therefore, a defendant in an application under Order 9 Rule 13 of the Code should disclose the fact that an ex parte decree has been passed and the date when such decree was passed. In the case before us, the defendant had disclosed such facts. According to Article 123 of the Limitation Act, the period of limitation for setting aside an ex parte decree is 30 days from the date of decree where summons has been served but in a case where allegation is that no summons has been served, that period of 30 days should run from the date of knowledge of the decree.
22. At this stage, we must not lose sight of the fact that the applicant has in this case not claimed any exemption from the law of limitation and as such, he was under no obligation to comply with the requirements of Order 7 Rule 6 of the Code. The provisions contained in Order 7 Rule 6 are to be complied with in the cases where the plaintiff admits that but for the exemption provided in the law of limitation, his claim is barred and that he is entitled to the exemptions mentioned in the Limitation Act or any other law for the time being in force, for instance, benefits conferred under Sections 14 to 20 of the Limitation Act. Even the proviso added to the said Rule 6 by the amendment of the Code in the year 1976 gives power to the Court to confer the benefit of exemption notwithstanding the fact that the plaintiff had not set out a particular ground in the plaint, if such ground is not inconsistent with the grounds pleaded in the plaint.
23. Once an applicant under Order 9 Rule 13 of the Code alleges that no summons has been served and an ex parte decree was passed on a particular date, it is for the plaintiff to specify in the written objection that the application for setting aside ex parte decree was filed beyond 30 days from the date of knowledge of such ex parte decree. If the plaintiff makes such allegation disclosing that the defendant had knowledge of ex parte decree beyond 30 days from the date of presentation of the application under Order 9 Rule 13 of the Code, it is for the defendant to lead evidence controverting such fact. At this stage, it may be profitable to refer to the provisions contained in Order 8 Rule 2 of the Code where a duty has been imposed upon the defendant to state in pleadings the fact showing that suit is barred by limitation. The aforesaid provision of Order 8 Rule 2 is quoted below:
“Rule 2. New facts must be specially pleaded.-The defendant must raise by his pleading all matters which show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality.”
24. In the present case, in the written objection to the application under Order 9 Rule 13 of the Code, the plaintiff in paragraph 6 has made a vague allegation that defendant was aware of the date of hearing but intentionally abstained from contesting the suit and allowed the same to be decreed ex parte but no definite date was given from which the defendant, according to the plaintiff, came to know about ex parte decree. It is to be borne in mind that under the provision of the Limitation Act, the period of limitation for setting aside an ex parte decree on the ground of non-service of summons runs not from the date of knowledge of pendency of a suit in which such decree has been passed but from the date of knowledge of that particular ex parte decree. If a defendant gets vague information that an ex parte decree has been passed against him, that knowledge will not be relevant for the purpose of calculating the period of limitation but on the basis of such vague information, if he further proceeds to ascertain and ultimately, gets the exact knowledge of a particular decree, limitation runs from that date. [See Kumud Nath Roy Chowdhury v. Rai Jatindra Nath Chowdhury, reported in 15 CWN 399 (DB)];
25. Be that as it may, in this case, in view of the vague allegation that the original defendant had knowledge of the pendency of the suit in the written objection to the application for restoration, the present petitioners gave evidence by affidavit-in-chief disclosing that the original defendant got knowledge of ex parte decree when summons of police help proceedings was served upon him in the month of April, 1994 and thereafter he contacted the learned Advocate and on enquiry, came to know the fact of passing the present ex parte decree. I have already indicated that the plaintiff did neither cross-examine the deponent nor did lead any evidence controverting such fact.
26. I, thus, find that learned First Appellate Court below acted illegally and with material irregularity in not considering the said ex parte uncontroverted evidence of the petitioners regarding the date of knowledge. I have already stated that an applicant under Order 9 Rule 13 of the Code is not required to plead the date of knowledge of ex parte decree and thus, there was no justification of excluding the evidence of the petitioners regarding the date of knowledge of ex parte decree on the ground that the said fact was not borne out by pleadings. It is now settled law that in pleading evidence is never pleaded and as such, only the requirements of Order 7 Rule 1 are to be complied with in the pleading of an applicant under Order 9 Rule 13 of the Code. Therefore, it is apparent that both the Courts below acted illegally and with material irregularity in holding that the application under Order 9 Rule 13 of the Code filed by the defendant should be held to be barred by limitation.
27. Next question is whether summons of the suit was served upon the defendant. The learned Trial Judge has not at all discussed this question. When specific evidence has been given on behalf of the petitioners alleging non-service of summons, onus shifts upon the plaintiff to rebut such evidence. Therefore, in the present case, it was the duty of the plaintiff to bring either postal peon or the process server to show that summons was really tendered to the deceased defendant but he refused. This is not a case where the assertion of the petitioners can be disbelieved on the basis of other materials on record. I have already pointed out that even the plaintiff himself did not give any evidence controverting the allegation of the defendant. The law is now settled that if the evidence of a witness in examination-in-chief is not disputed either by putting contrary suggestion in cross-examination or by giving any independent evidence, it should be presumed that the other side is not disputing such fact unless such fact on the face of it appears to be improbable or any other part of the evidence of the self-same witness belies the said fact.
28. I, thus, find that the petitioners have rebutted the presumption of correctness arising out of the postal endorsement and the endorsement of process server and in spite of such fact when neither the postal peon nor the process server was examined and the petitioners had no opportunity to cross-examine those persons, the Court below could not rely upon the report of the process server or the postal peon.
29. Once it is established that there was no service of summons, the second proviso to Order 9 Rule 13 of the Code is not attracted as the said proviso applies only to a case of irregularity of service and in such a case, the onus shifts upon the plaintiff to show that the defendant had knowledge of the date of hearing and had sufficient time to contest the suit. The present case being one of non-service of summons, the said proviso does not apply and at the same time, the plaintiff has not even adduced any evidence to show the aforesaid ingredients of the second proviso.
30. Apart from the aforesaid fact, it is now equally settled law that if a suit is dismissed for default under Order 9 Rule 3 of the Code, for restoration of such suit under Order 9 Rule 4 of the Code there is no necessity of giving notice of hearing of such application upon the defendant but once such application is allowed, the defendant is entitled to get a notice of restoration of suit and the date of fixation of further hearing. (See Long Life Carpet Industries & Ors. v. Keshar Jahan, ; Sishupal v. Manak Chand,
31. The defendant may have knowledge that a suit is pending against him but before entering appearance, the suit having been dismissed for default, he may decide not to keep further watch on the suit being assured that the suit has been dismissed for default. Therefore, principles of natural justice demand that once a suit already dismissed for default is restored, further notice must be given upon the defendant informing that the suit has been restored so that the defendant may, even if, the said suit was on ex parte board, come forward with an application for setting aside the date of ex parte hearing on showing sufficient cause. The defendant without filing written statement may even decide to pray for cross-examining the plaintiffs witnesses or participate in argument showing that on the basis of ex parte evidence the plaintiff is not entitled to get a decree or that the suit is liable to be dismissed on a pure question of law.
32. It was thus a fault on the part of the Court in not insisting on fresh service after restoration of the suit under Order 9 Rule 4 of the Code and such being the position, simply on the ground of mistake of the Court, the ex parte decree should be recalled by invoking inherent power once attention of the Court is drawn to such fault of the Court. For instance, if a Court fixes a particular day for hearing of a suit in the presence of a party but inadvertently dismisses the suit earlier for default or decrees the suit ex parte in the absence of the other party on an earlier date, the aggrieved party without taking recourse to Order 9 of the Code, can ask the Court to rectify its own mistake by invoking inherent power. [See Subodh Chandra v. Sudhir Kumar, ( DB)].
33. On consideration of the entire materials on record, I, thus, find that in this case, the application filed by the original defendant was well within the period of limitation and that on the basis of ex parte evidence given on behalf of the petitioners the learned Courts below were left with no other alternative but to accept the ex parte evidence of the petitioners and allow the application under Order 9 Rule 13 filed by the defendant.
34. I, therefore, set aside the orders impugned and allow the application under Order 9 Rule 13 of the Code filed by the original defendant on the ground of non-service of summons.
35. This application is, thus, allowed.
36. In the facts and circumstances, there will be, however, no order as to costs.