K. S. LODHA, J. - (1.) THESE two appeals can conveniently be disposed of together by a single order/judgment. Civil Misc Appeal No. 121 of 1981 is directed against the order of the learned Additional District Judge, Sriganga-nagar, dated 18 8. 81 by which the appellants' application for setting aside exparte decree has been rejected. First Appeal No. 65 of 81 is against the ex-parte decree itself.
(2.) THE plaintiffs Suratgarh Cotton Cinning and Pressing Factory had filed a suit against the Rajasthan State Electricty Board for the recovery of a sum of Rs. 13389. 42 alleged to have been recovered by the Rajasthan State Electricity Board in excess of the electricity charges actually due. This suit was originally filed in the court of the learned District Judge, Sriganganagar. Summonses were issued to the defendant No. 1 Raj. State Electricity Board and No. 2 the Assistant Engineer, Rajasthan State Electricity Board, Hanuman-garh. THE date fixed for hearing was 3. 2. 80. THE case was however transferred to the court of learned Additional District Judge, Sri Ganganagar and it was taken up by the learned Additional District Judge on 3. 12. 80. It was found that the summons on defendant No. l had been served but nobody appeared on behalf of the defendant No. l. Defendant No. 2 was not served. As the presiding officer of that court was on leave, the case was adjourned to 8. 1. 81. On 8. 1. 81, it was found that defendant No. 2 had also been served but none of the defendants appeared before that court on that day and, therefore, exparte proceedings were ordered against them. THE case was then adjourned to 18. 2. 81 for the plaintiff's evedence. On that day, the plaintiff's evidence was recorded and arguments wrie heard and on 20. 2. 81, the suit was decreed exparte against both the defendants THE defendants thereupon moved an application for setting aside the exparte decree on 29 6. 81. THEir case was that they appeared in the premises of the District Court on 3. 12. 80 but the case was not called by that court on that day and, therefore, they remained under the impression that summons had wrongly been sent to them. THE cause of this impression was mat the same plaintiffs had already filed another suit against these defendants before the Court of the Munsif, Sriganganagar, and it was pending. THEir case further was that they had no knowledge that the suit has been transferred to the court of learned Additional District Judge, Sriganganagar, nor did they receive any notice either before or after the transfer and, therefore, they could not appear before the learned Additional District Judge. Sriganganagar. It was further stated that it was only on 28th or 29th May, 1981 that the Officer-in charge of the defendant No. l came to know through Shri Satish Chandra Jain, Advocate, that the suit had already been decreed exparte against the defendants. THEreupon, further particulars about the case were gathered and the application for setting aside the exparte decree was filed on 29. 6. 81. An affidavit of Shri Suraj Bhan, Assistant Engineer, Rajasthan State Electricity Board, Hanumangarh, was also filed in support of the application. THE application was opposed on behalf of the plaintiff and after hearing the parties, the learned Additional District Judge, Sriganganagar, rejected the application by his order dated 18. 8. 81 on the ground that the application was barred by time, since the limitation started running from the date of the decree and not from the date of the knowledge. It is against this order that the miscellaneous appeal has been tiled. THE defendants have also challenged the exparte decree on merits by way of regular first appeal. It will be proper to first consider the miscellaneous appeal, because, if that appeal succeeds, the regular appeal automatically succeeds because the decree would already stand set aside. If, however, the miscellaneous appeal fails, then of course, the regular appeal will have to be considered on merits. I have heard learned counsel for the parties and have gone through the record. The learned counsel for the appellants has urged that even if it is held that the limitation for filing the application under O. IX r. 13. C P. C. , for setting aside the ex-parte decree started running from the date of the decree, the learned Additional District Judge ought to have examined the matter from the point of view whether there was any sufficient cause for the delay in filing the application. He further contended that although an application under Section 5, Limitation Act, had not been moved, but all the facts explaining the delay had been stated in the application under O. IX r. 13, C. P. C. itself and an affidavit in support of this application had been filed and, therefore, it was not only open to the learned Additional District Judge to consider the sufficiency of the cause for delay, rather it was his duty to have considered it. He also contended that since the appellants were bonafidely under the impression that the original summons received by them were by mistake and that those summons related to the earlier suit pending before the learned Munsif, and also because they did not receive any notice from the Additional District Judge, Sriganganagar, after the transfer of the case to that court, they did not make any further enquiries in respect of the summons and in these circumstances, there was sufficient cause for them for not having appeared before the learned Additional District Judge. In the alternative, it was also urged by him that even if the appellants are found to be guilty of some sort of negligence, that negligence should not entail the passing of an ex-parte decree against them and the opposite party can properly be compensated by awarding costs. On the other hand, the learned counsel for the respondent supported the order of the court below and also urged that when there was no application under Section 5, Limitation Act, nor had a prayer been made for condoning the delay even orally before the court below, there was no question of condonation of the delay. He also brought it to my notice that even in the memo of appeal before this Court, no prayer for condonation of delay in filing the application under O. IX r. 13 C. P. C. , has been made. I have given my anxious consideration to the rival contentions. The finding of the learned Additional District Judge that the application under O. IX r. 13, C. P. C , is barred by limitation is based on two decisions of this Court, namely, Badri Narayan Sharma vs. Panchayat Samiti, Dhariawad (1) and Deepchand vs Nandirara Sindhi (2 ). The ratio decidendi of these two cases is that where the first summons of the suit have been properly served on the defendants and they do not appear and an ex-parte decree is passed against them, then the limitation for filing an application for setting aside ex-parte decree would start running from the date of the decree and not from the date of know-ledge notwithstanding the fact that in the meantime the case has been transferred to some other court. The learned counsel for the appellant has not challenged this ratio decidendi and as at present advised, I also do not feel called upon to consider the correctness of this view because all that has been urged before me in the present case is that the court below should have considered the question of condoning the delay in filing the application. I shall, therefore, advert only to that aspect of the matter but before I come to it, a reference to some of the observations made in these two authorities will be necessary. In Badri Narayan's case (suora), Hon'ble Shri Jagat Naravan. C. J. while holding that the limitation shall start, for an application under O. IX r. 13, C P. C. , from the date of the decree when the summons in the suit had properly been served upon the defendant, had remanded the matter to the court below because the learned counsel for the defendant wanted to move an application under Section 5 of the Limitation Act. It is, therefore, clear that according to that decision also, the question of condonation of delay in filing the application was open to consideration. It may further be observed that in that case, reference was made to an earlier decision of this Court in Magraj vs. Harnarain (3), wherein it was observed, - "where the appellant had no notice of the date of hearing the dismissal of the appeal for default is not an order passed under O 41. r. 17 and, therefore, the provisions of 0. 41, r. 19 or Art. 168, Limitation Act, does not come into play, and the restoration of the appeal can be done in exercise of the powers under sec. 151 of the Code. " The learned Judge, however, did not agree with the view and observed that he was unable to subscribe to the view taken in this decision on account of overwhelming authorities to the contrary. It may be pointed out that the authorities referred to in Badri Narayan's case (supra) only deal with the question of the starting point of limitation for an application under 0,ix r 13, C. P. C. but not with an application for setting aside an ex-parte order or decree under the inherent powers of the Court. The ex-parte order or ex-parte decree presupposes that the defendant failed to appear despite due notice and if the notice itself was not at all served, the ex-parte order or decree itself would be on account of the mistake of the Court and, therefore, it is the duty of the Court to correct its own mistake because nobody should be allowed to suffer on account is of the mistake of the Court. This aspect of the matter does not appear to have been considered in Badri Narayan's case (supra ). As already stated above, in the present case, I am not required to go into the correctness of this decision and, therefore, even though I do not subscribe to the view taken in Badri Narayan's case and am in agreement with the view taken in Magraj's case (supra), I do not find it necessary to refer the matter to a larger Bench.
(3.) IN Deepchand's case (supra), the same Hon'ble Judge observed, - "the reasoning given by the learned Additional Munsif was that notice should have been served on the defendant before proceeding with the hearing of the case by the Additional Munsif No. 3, Kota, after the case had been transferred to his court. This argument is erroneous in my opinion. Once the summons of the suit is served on the defendant it is his duty to find out to which court the case has been transferred on administrative ground and what date has been fixed in it. " With great respect to the learned Judge, this view does not command itself to me and appears to be erroneous on the face of it. The learned Judge formed this view for the reason stated by him in para 7 of the same judgment which reads.- "it was held in Devichand vs. Rikhabchand (4) that "where the High Court transfers a proceeding on its own motion, it is not necessary for the High Court to give notice to the parties. " The same is applicable to an order of transfer passed by the District Judge on administrative grounds. " It may be stated that Devichand's case (supra) did not relate to a notice to the parties after the transfer. It was a case on the question whether a notice to the parties is necessary before ordering of transfer of a case from one court to another on administrative grounds. Reference in this connection may be made to para 4 of the decision on Devichand's case (Supra ). It was observed therein, - ". . . . . . Where the High Court transfers a proceeding on its own motion, it is not necessary for the High Court to give notice to parties. Transfer may be ordered on the application of a party. In such a case, notice is issued, parties are heard, and an order is passed. Secondly, a transfer may be ordered by the District Judge, or the High Court on its own motion. In such a case no notice to any party is required, and the transfer is generally for administrative reasons. . . . . . . " It would thus be clear that the notice referred to in this judgment was a notice before the order of transfer is made and not a notice of the bearing of the suit by the transferee court after the transfer has already been ordered. Now I may come to the question of the condonation of the delay, assuming that the application under O. IX, r. 13 C. P. C. , was barred by time from the date of the decree. It may at once be stated that in Firm Kaura Mal Bishan Dass vs. Firm Mathra Dass Atma Ram (5), Hon'ble LB. Dua, J. as he then was, observed, - "the discretion under S. 5 of Limitation Act has to be a judicial discretion and not an arbitrary one. Merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it. Procedure is meant for advancing and not for obstructing the cause of justice; and if the entire material is on the record, it cannot promote the ends of justice, if that material is ignoerd and the relief refused to the appellant, merely because he had not claimed it by means of a formal application in writing or that a formal affidavit was not filed. The language of S. 5 also does not provide that an application in writing must be filed before relief under the said provision can be granted. " I am in respectful agreement with this view and the learned counsel for the respondent has also not challenged it. ;