CHUNILAL NATHUBHAI Vs. ABDUL RAZAK SHAIKH
HIGH COURT OF GUJARAT
ABDUL RAZAK SHAIKH
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(1.) . Mr. Sanjanwala who appears on behalf of the defendant has raised the contention that the learned trial Judge was in error in rejecting the application on the ground that it was barred by time as if he had no jurisdiction to condone the delay. The order which the learned trial Judge wrote below application for setting aside the ex parte decree was fairly long. However nothing turns upon that order because having rejected the application for condoning delay he was necessarily obliged to reject the application for setting aside the ex parte decree. What he stated in his order below application for condoning delay was as follows:
"Time cannot be condoned as Art. 123 Limitation Act, is specific."
(2.) . Mr. Sanjanwala has argued that the order made by the learned trial Judge suffered from want of jurisdiction inasmuch as the learned trial Judge felt that he had no jurisdiction to condone delay on account of the express language used in Art. 123 of the Limitation Act. This contention was canvassed before the learned appellate Judge. The learned appellate Judge recorded a finding which appears to be slightly different from what was argued before him. He dealt with the contention relating to the commencing point for the period of limitation under Art. 123. It was argued before him on behalf on the plaintiffs that the period of limitation for making application for setting aside the ex parte decree began to run from the date of the decree. On the other hand it was argued before him on behalf of the defendant that the period of limitation began to run from the date of the defendants knowledge of the ex parte decree passed against him. The learned appellate Judge found that the defendant had appeared in the suit in the first instance but had failed to do so at the subsequent stages of the suit. According to him therefore the time in the present case began to run not from the date of the defendants knowledge of the ex parte decree passed against him but from the date of the decree itself. In my opinion the finding recorded by the learned appellant Judge is very well-founded. If on account of non-service of summons or notice a defendant does not appear in the suit and an ex parte decree is passed against him time begins to run against him for the purpose of making an application for setting aside the ex parte decree from the date on which he knew that an ex parte decree was passed against him. However if the defendant is served with the summons and has appeared in the suit then it is his duty to attend the Court on all subsequent dates of hearing. If he does not appear on subsequent dates of hearing and allows an ex parte decree to be passed against him it is not open to him to plead that the commencing point for the purpose of limitation is his knowledge and not the date of the decree. Once he has appeared in the suit and filed his written statement as the defendant did in the present case it is his duty to keep track of all subsequent proceedings and to post himself with all knowledge and information about the subsequent proceedings. If he does not do so he is guilty at least of gross negligence. He cannot be allowed to take advantage of his own negligence and to plead that he did not know when the ex parte decree was passed against him and that therefore the period of limitation had begun to the run from the date of his knowledge. Art. 123 of Limitation Act itself contemplates this position. In my opinion therefore the finding recorded by the learned appellate Judge on this aspect is very well founded. Appeal allowed.;
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