Gauhati University Vs. Shri Niharlal Bhattacharjee  INSC 627 (3 November 1995)
K. Ramaswamy, K. Hansaria B.L. (J)
1995 SCC (6) 731 JT 1995 (8) 206 1995 SCALE (6)398
O R D
appellant-University was impleaded as a party defendant to the Title Suit No.
61/90 on the file of the Munsiff No. , 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.
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
question, therefore, is whether the appellant has been duly served.
5 Rule 6 CPC provides that :
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.
Procedure when only plaintiff 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;
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
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.
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.
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
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.