- (1.) THIS is a revision by the plaintiff against the judgment of the learned District Judge, Pratapgarh in appeal dated 18th January, 1958 setting aside the exparte decree passed on 31st May, 1955 and arises under the following circumstances.
(2.) THE petitioner filed a suit for recovery of Rs. 3100/- in the court of the Civil Judge, Pratapgarh on 29th August, 1952 against the non-petitioner. After the issues had been framed and part of the plaintiff's evidence was recorded the case was fixed on "25th May, 1955 for the remaining evidence of the plaintiff. On this day neither the defendant nor his counsel appeared and the learned Civil Judge ordered that the suit shall be heard exparte against him. On 26th May, 1955 the plaintiff after examining one witness closed his evidence. Arguments were heard and on 3lst May, 1955 an exparte decree was passed against the defendant. On 7th July, 1955 an application for setting aside the exparte decree was presented on behalf of the defendant on these grounds that he was a resident of Mandsor a place 15 miles away from Pratapgarh where the suit was pending and on 25th May, 1955 he had to go to Indore to attend his brother's marriage and had asked his counsel Shri Sadiq Ali who also hailed from Mandsor by a telegram Ex. 1 to attend the hearing. On 25th May, 1953 Shri Sadiq Ali did not go to Pratapgarh as he was told by Shri Umaidmal Pachawat counsel for the plaintiff that the Civil Judge, Pratapgarh was on leave and would come back on 2nd June, 1955. Defendant on his return from Indore met Shri Sadiq Ali on 31st May, 1955 who explained to him the reason of his not going to Pratapgarh on 25th May,1955 and asked him to go to Pratapgarh on 2nd June, 1955 to find out as to what orders had been passed on that date. He. accordingly went to Pratapgarh on 2nd June, 1955 and met Shri Shiv Narain Gupta a petition writer of that place and requested him to find out as to what had happened in his case on 25th May, 1955 and also the next date fixed in the case. Shri Shiv Narain Gupta told him that the Civil Judge had not gone on leave on 25th May, 1955 and further told him after going towards the court that statement of one witness was recorded on that date and that the rest of the witnesses would now be examined on 2nd July, 1955. He therefore, came back to Mandsor and apprised Shri Sadiq Ali his counsel of what he had learnt from Shri Shiv Narain Gupta. Shri Sadiq Ali then asked him to obtain copies of the statements of the witnesses who had been examined in the case, and also advised him to engage a counsel for Pratapgarh. THE petitioner left these arrangements to Shri Sadiq Ali. Shri Sadiq Ali then went to Pratapgarh on 16th June, 1955 and approached Shri Shiv Narain Gupta and asked him to obtain copies of the statements of the witnesses and further asked him to suggest the name of a lawyer who might be engaged on behalf of the petitioner. Shri Shiv Narain Gupta promised to supply copies of the statements by Sunday next and also suggested the name of Shri Chand Mal Salkhia. Shri Sadiq Ali was also informed By Shri Shiv Narain Gupta that the next date of hearing in the case was 2nd July, 1955. Shri Sadiq Ali then came back to Mandsor. THE petitioner then got a letter written by Shri Sadiq Ali for Shri Jawahar Lal Gandhi a lawyer practising at Pratapgarh and sent a Vakalatnama and Rs. 15/- towards his fees along with one Chhaganlal a clerk of the office of the S. D. O. , Pratapgarh so that Shri Gandhi may appear in the case on his behalf on 2nd July, 1955. It is said that Shri Gandhi on 2nd July, 1955 waited in the court for the case to be called but subsequently he came to know that an exparte decree had already been passed in the case on 31st May, 1955. He therefore, intimated Shri Sadiq Ali vide Ex. 2 that an ex-parte decree had already been passed on 31st May, 1955. This letter Ex. 2 reached the petitioner on 4th July, 1955 and the petitioner thereafter came to Pratapgarh and moved an application for setting aside the exparte decree out of which this appeal has arisen. In the application it was specifically stated that a fraud was practised upon him by Shri Saiv Narain Gupta who was in collusion with the opposite party. It was prayed that he may be given either the benefit of sec. 5 of the Limitation Act or the case may be restored under the inherent powers of the court. This application was opposed on behalf of the opposite party and it was contended that it was on the face of it barred by limitation, under Art. 164 of the Limitation Act. The learned Civil Judge after framing an issue as to whether there was sufficient cause for setting aside the exparte decree and after evidence of the parties rejected the petitioner's application as being time barred holding that neither sec. 5 of the Limitation Act nor sec. 151 of the Code of Civil Procedure were applicable to the facts of the case. On appeal the learned District Judge remanded the case and directed the learned Civil Judge to decide the application afresh after taking into consideration the provisions of sec. 18 of the Indian Limitation Act if they were applicable to it. The learned Civil Judge again by his judgment dated 14th May, 1957 dismissed the application as barred by limitation holding that the alleged fraud was not committed by the plaintiff and the petitioner cannot therefore, invoke the provisions of sec. 18 of the Limitation Act. His findings however were that there was sufficient cause for the nonappearance of the petitioner on 25th May, 1955 as he had gone to Indore and informed his lawyer Shri Sadiq All to attend the court on that date vide Ex. 1. As regards Shri Sadiq Ali he held that he deliberately did not go to Pratapgarh on 25th June, 1955. He also found it established on record that Shri Shiv Narain Gupta had wrongly informed the petitioner that 2|nd July, 1955 was the next date fixed in his case, and that the petitioner only came to know on 4th July, 1955 that an exparte decree had been passed on 31st May, 1955 on receipt of letter Ex. 2 sent by Shri Jawaharlal Gandhi. As stated above he did not find that Shri Shiv Narain Gupta was an agent of the plaintiff and therefore even if any fraud was practised upon the petitioner it was not by the plaintiff in any way and sis such sec. 18 of the Limitation Act could not come to the rescue of the petitioner. The petitioner again filed an appeal before the District Judge who came to the conclusion that it was proved from the evidence of Shri Sadiq Ali that Shri Shiv Narain Gupta had been acting in this very case on behalf of the plaintiff and was connected with him. Disagreeing with the learned Civil Judge he found that Shri Sadiq Ali did not attend the court at Pratapgarh on 25th May, 1955 as he had been misinformed by Shri Umaidmal Bachawat that the learned Civil Judge was on leave upto 2nd June, 1955. He was therefore of opinion that a fraud was played upon the petitioner by Shri Umaidmal who was the plaintiff's counsel and Shri Shiv Narain Gupta who was in a way plaintiff's agent and in view of the provisions of sec. 18 of Indian Limitation Act time for filing the application began to run from 4th July, 1955 when he came to know that an exparte decree had been passed against him on 31st May, 1955. He held the application within time and allowed the appeal and passed an order for setting aside the exparte decree which was passed against the petitioner. It is against this order that the present revision has been filed and it is urged - (1) that the learned District Judge was not right in holding that any fraud was practised upon the petitioner by Shri Umaidmal Bachawat or by Shri Shiv Narain Gupta. (2) That Shri Shiv Narain Gupta was not in any way connected with the plaintiff and therefore the provisions of sec. 18 of the Indian Limitation Act were not attracted. (3) that the application having been filed clearly beyond the period of limitation should have been dismissed. The point that arises for determination is whether the learned District Judge was right in holding that the application under O. 9, R. 13 C. P. C. was within time on account of any fraud being played upon the petitioner by the opposite patty and whether in the circumstances of this case I should interfere in revision with the order of the learned District Judge. Learned counsel for the opposite party has conceded before me that sec. 5 of the Indian Limitation Act and sec. 115 of the Civil Procedure Code do not apply and he cannot seek assistance to bring his application within limitation of sec. 18 of the Indian Limitation Act. Sec. 18 reads as under- "where any person having a right to institute a suit or make an application has, by means of such fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application. (a) against the person guilty of the fraud or accessory thereto, (b) against any person claiming through him otherwise than in good faith and for a valuable consideration. shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production. " It will be noticed that before a party can avail of the benefit of sec. 18 of the Limitation Act he must show that there has been a fraud upon him and further that on account of that fraud he has been kept from the knowledge of his right to institute a suit make an application against the person guilty of such fraud or accessory thereto. Unless the applicant satisfied the court on these points he cannot avail of the provisions of sec. 18 of the Limitation Act. There is no doubt that the benefit of sec. 18 cannot be taken by an applicant for setting aside an ex parte decree provided he can bring his case within the four corners of this section. If he can establish that a fraud was practised upon him by the opposite party or by his agent and he was kept from the knowledge of his right to make an application he can indeed take advantage of this section. Reference in this connection may be made to observations in M. B. Kinkhede vs. Mohunya (1) wherein it was held that - "the fraud which can be relevant to be considered for the purpose of Art. 164 is not only a fraud with reference to the service of notice but ft covers any fraud and sec. 18 can be applied. " In the present case so far as Shri Buchawat is concerned the learned Judge at one place has stated that he practised fraud upon the petitioner; but after saying so he immediately proceeds to state that it may be that Shri Umaidmal Buchawat was himself given a wrong information to the effect that the Civil Judge was on leave and that he was to join on 2nd June, 1955. Apparently there seems to be no reason why Shri Umaidmal who being a practitioner at Mandsor had only casually appeared for the opposite party should have thought of playing fraud on Mr. Sadiq Ali and in the circumstances it seems quite reasonable to infer as the learned District Judge himself does that upon some information he in good faith conveyed it to Shri Sadiq Ali that the Civil Judge would be on leave till 2nd June, 1955. The observations of the learned District Judge that Shri Umaidmal also practised fraud upon the petitioner cannot be justified as on 25th May, 1955 no ex-parte decree had been passed against the petitioner and therefore the question of keeping him from his right to make an application for setting aside the exparte decree did not arise at that time and the question of fraud at that stage is wholly unconnected with this application. In fact the petitioner was kept from his right to make the application within time by Shri Shiv Narain Gupta who misinformed him that the case has been postponed to 2nd July, 1955 although an exparte decree had been passed on 31st May, 1955. The learned District Judge has found on evidence that Shri Shiv Narain Gupta was connected with the plaintiff and had also helped the plaintiff in this case in getting the service of summons affected upon his witnesses. Keeping this circumstance in view the learned District Judge has come to the conclusion that a fraud was practised upon the petitioner by Shri Shiv Narain Gupta who was connected with the plaintiff and due to that fraud the petitioner was kept from filing his application within time and that it was on 4th July, 1955 that he for the first time came to know that an ex-parte decree had been passed. It cannot be said that the learned Judge has in any way exceeded his jurisdiction or has acted in the exercise of his jurisdiction illegally or with material irregularity. The finding is based upon evidence and the relevant provisions of law applicable to the facts of the case. I am therefore, not prepared to go into the facts in revision and to decide for myself whether Shri Shivnarain Gupta was connected with the plaintiff or not or whether the plea of fraud has been established by the petitioner in the case. The learned District Judge had the jurisdiction to decide all these questions and if he has done so rightly or wrongly it is no ground for interference in revision. Reference in this connection may be made to N. S. Venkatagiri Ayyangar vs. The Hindu Religious Endowments Board. Madras (2 ). The State of Madras vs. C. P. Sarathy (3), and Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Triumale (4 ). Apart from it I find there is no negligence or carelessness on the part of the petitioner. On the other hand he was all along acting diligently in prosecuting the case. He sent a telegram to his lawyer to appear on 25th May, 1955 and then again went to Pratapgarh on 2nd June, 1955 and was informed that the next date in his case was 2nd July, 1955. Again he sent his lawyer on 16th June, 1955, to obtain the copies of the statements recorded in the case. Then he sent a vakalatnama and some money for the fee of the lawyer to appear on his behalf on 2nd July, 1955. All these facts clearly show that on account of the wrong information he remained under the impression that the case was still pending. Shri Shiv Narain Gupta is a petition writer of Pratapgarh and it is not uncommon that in the mufasil litigants approach the petition writers to help them in finding our the dates in their cases or take their advice in the matter of engaging a counsel or even get their pleadings drafted by them. I am therefore satisfied that there was a sufficient cause for the non-appearance of the defendant when the suit was called on for hearing and the application is within time. Even if I were to take the view that the learned District Judge has wrongly decided the point of limitation in favour of the defendant I would not have interfered in the circumstances of this case as in my view justice has been done in the case and the defendant has been given an opportunity of heating which would otherwise have been denied to him if the exparte decree had been allowed to stand. It would be pertinent to refer to Ramnarayan vs. Ramprasad Nathmal (5), wherein Sinha, C. J. as his Lordship then was, observed that: - It has been vehemently argued in this case and not without justification that the court below has misdirected itself on the question of limitation and on the dilatory and negligent conduct of the defendant. Fortunately this case comes before me not in appeal but in the revisional jurisdiction of this court and I am not bound to interfere even though the Court below might have gone wrong in deciding the question of the limitation. In this case I find that the Court below - it may be for wrong reasons - has come to the right conclusion, namely that the defendant was misled into thinking that the claim against him was only for Rs. 100/- and that he could well afford to pay that amount without thinking any more about it. But on facing a decree for Rs. 11,675/- plus costs amounting to Rs. 1,165/- he had to move in the matter and therefore he sought protection of the Court. " It may be mentioned that in this case a suit was filed on 5. 8. 1949, summonses were served on the defendant on 14. 9. 49 and a preliminary decree for accounts was passed on 15. 3. 1950 and a final decree was passed on 21. 6. 1950, and it was on 10th March, 1951 that an application for setting aside the ex parte decree was presented by the defendant. It is not necessary to refer to other cases where the High Court has refused to interfere in revision where it finds that justice has been done between the parties although the finding of the court below may be erroneous. This revision therefore, fails and is hereby dismissed. In the circumstances I leave the parties to bear their own costs. .;