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2006 Supreme(Cal) 641
High Court Of Calcutta
Before Mr. Justice Arun Kumar Mitra And Mr. Justice Kishore Kumar Prasad
COAL INDIA LTD. - Appellant
Versus
ETHELBARI TEA COMPANY (1932) LTD. - Respondent
F. M. A. 44 Of 1988
Decided On : 09/26/2006
ALOK BANERJEE, SUDHANSU SIL
An application for restoration of a suit under Order 9 Rule 13 of the Civil Procedure Code must be filed within the prescribed limitation period, which runs from the date of service of summons if the summons was duly served, or from the date of knowledge of the decree if the summons was not served.
Headnote:
CIVIL PROCEDURE CODE, ORDER 9 RULE 13 - RESTORATION OF SUIT - SUMMONS SERVED UNDER RULE 19A OF ORDER 5 - APPLICATION FOR RESTORATION FILED BEYOND LIMITATION PERIOD - APPELLANT'S CONDUCT INDICATIVE OF IRRESPONSIBILITY - APPLICATION RIGHTLY HELD BARRED BY LIMITATION.
Fact of the Case:
Defendant/appellant filed an application under Order 9 Rule 13 of the Civil Procedure Code to set aside an ex parte decree and restore a money suit. The application was dismissed by the trial court on the grounds that the summons had been duly served on the appellant by registered post with acknowledgment and that the application was filed beyond the prescribed limitation period.
Finding of the Court:
The court found that the summons had been duly served on the appellant on 26.12.1983, as evidenced by the postal receipt and the initial and office seal of the appellant on the acknowledgment. The court also noted that the appellant had admitted to receiving the summons in paragraph 10 of their application under Order 9 Rule 13 of the Civil Procedure Code.
Issues: 1. Whether the summons was duly served on the appellant. 2. Whether the application for restoration was filed within the prescribed limitation period.
Ratio Decidendi: 1. The court held that the summons was duly served on the appellant, as evidenced by the postal receipt and the initial and office seal of the appellant on the acknowledgment. 2. The court held that the application for restoration was filed beyond the prescribed limitation period, as it was filed on 9.8.1985, more than two months after the ex parte decree was passed on 12.6.1985.
Final Decision: The court dismissed the appeal, holding that the trial court had rightly dismissed the application for restoration as barred by limitation.
( 1 ) THIS appeal is directed against the Order No. 24 dated 31 May 1986 passed by Shri A K. Dutta, learned Judge 9th Bench, City civil Court, Calcutta, in Misc. Case No. 874 of 1985. By the aforesaid impugned order, the learned trial Judge had rejected the application under order 9 Rule 13 of the Civil Procedure Code filed on behalf of the defendant/appellant herein.
( 2 ) THE plaintiff/respondent filed a money suit being No. 732 of 1983 against the defendant/appellant on 16. 9. 1983 for recovery of price of coal paid in advance together with interest The learned Court below issued summons for appearance of the defendant/appellant on 24. 2. 1984 under order 5 Rule 19a of the Civil Procedure Code. The summons issued in the ordinary manner was not received back on 24. 2. 1984 but on this date, summons sent through registered post with A. D. to defendant/appellant was received back after service but the defendant/appellant did not appear. Hence the learned Trial Court fixed 28 2. 1984 for ex parte hearing of the suit. The ex parte hearing of the suit was adjourned on several days that is on 24. 4. 84, 12. 6. 84, 23. 7. 84, 12. 9. 84, 4. 12. 84 , 1. 2. 85, 22. 3. 85 and 18. 4. 85 on various reasons and ultimately on 12. 6. 1985 vide Order No. 14 the following order by the learned Trial Court came to be passed: -
"the record is put up for hearing. The plaintiff is represented by their learned Advocate by filing a hazira. The defendant is found absent on calls without any step. The plaintiff examines the P. W. 1 Hardesh Raj Oujha, who proves the relevant letters, marked Exts. I and 2. The couter-foils of cheque and the bank statement are also filed by the plaintiff Heard. Perused the record. Considered. The plaintiff's claim is duly proved by the sworn testimony of the P. W. 1, read with Exts. 1 and 2, the relevant letters. The counter-foils of cheque and the bank statement filed would also seem to lend point to the plaintiff's case. The suit should accordingly succeed. Court fees paid on the plaint are correct. Hence, ordered: that the suit be decreed ex parte with costs. The plaintiff do recover the sum of Rs. 12,453. 16p only from the defendant. The plaintiff shall also get interest from the defendant @ 18. 5% p. a. till the date of recovery of the amount decreed. "
( 3 ) ON 9. 8. 1985, the defendant/appellant filed an application under order 9 Rule 13 supported by an affidavit for restoration of the money suit being No. 732 of 1983 after setting aside the ex parte decree which was dismissed by the learned Trial Court on 31. 5. 1986 after hearing the learned counsels appearing for the parties. The said order of the learned Trial court is extracted below: -
"the record is put up for hearing the Misc. Case. Both the parties are ready by filing haziras, and are represented by their respective learned Advocates. Hear the learned Advocates for both sides at length. Perused the record. Considered. The petitioner defendant has filed the instant application under order 9, Rule 13 C. P. C. , for setting aside the ex parte decree passed by the Court on 12. 6. 85 in the relevant original M. S. No. 732 of 1983 and for restoring the same to its original file on the ground that they were not aware of the pendency of the aforesaid relevant money suit until receipt of the letter dated 11. 7. 85 from their learned Advocate, Sri Mritunjoy Das Majumdar. Upon receipt of the said letter the officer concerned had directed the Dealing assistance on 22. 7. 85 to search the summons of the said case, if any, served upon the petitioner; but no such paper could be traced out. The petitioner had farther specifically contended with more than usual clarity in para 10 of their relevant Misc. petition that theirs is a vast organization and the relevant summons was misplaced, for which they (petitioner) could not enter appearance in the relevant suit, resulting in the relevant ex parte decree. Hence the instant petition. As already note
