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High Court Of Delhi
UNION OF INDIA - Appellant
Versus
V.P.KOCHHAR - Respondent
Decided On : 01/14/1983
O. 9, R. 13, CIVIL P. C. - APPLICATION UNDER - SERVICE OF SUMMONS - LOSS OF SUMMONS IN TRANSIT - WHETHER AMOUNTS TO SUFFICIENT CAUSE FOR NON-APPEARANCE - HELD, YES.
Fact of the Case:
The Union of India filed an application under O. 9, R. 13 of the Civil P. C. to set aside an ex parte decree passed against it. The Union of India claimed that the summons were served on its offices, but due to misplacement in transit, they never reached the concerned officials who deal with legal cases. The trial court and the appellate court dismissed the application, holding that the Union of India could not take advantage of the misfeasance or non-feasance of its officers.
Finding of the Court:
The court held that the loss of summons in transit amounted to sufficient cause for non-appearance of the Union of India on the date of hearing. The court reasoned that government departments function through their officers and may be liable for misfeasance or non-feasance towards the government, but in this case, there was no evidence of deliberate misplacement or mala fides. The court also held that the application was not barred by time, as the Union of India had acquired knowledge of the ex parte decree only recently and had filed the application within a reasonable time.
Issues: 1. Whether the loss of summons in transit amounted to sufficient cause for non-appearance of the Union of India on the date of hearing? 2. Whether the application was barred by time?
Ratio Decidendi: 1. The court held that the loss of summons in transit amounted to sufficient cause for non-appearance of the Union of India on the date of hearing, as it was not a personal matter of the officers involved and there was no evidence of deliberate misplacement or mala fides. 2. The court held that the application was not barred by time, as the Union of India had acquired knowledge of the ex parte decree only recently and had filed the application within a reasonable time.
Final Decision: The court set aside the orders of the courts below, set aside the ex parte decree and ex parte proceedings, and allowed the Union of India to contest the suit.
( 1 ) THIS revision petition is directed against an order of Additional District Judge. Delhi dated 23rd Feb. 1982 whereby the learned Additional District Judge dismissed an appeal filed by the Union of India against the judgment dated 3rd Dec. 1981 passed by the learned trial Court dismissing an application filed by the petitioner-Union of India under the provisions of O. 9, R. 13 of the Civil P. C.
( 2 ) THE plaintiff-respondent herein was dismissed from service during 1979. He filed a suit on or about 3rd Dec. 1979. The suit was filed for declaration that the dismissal of the plaintiff was illegal and ultra vires and also there was a claim of money. In the plaint the respondent-plaintiff made the defendants as under :
1. Union of India (to be served through ). (a) The Secretary, Ministry of Railway (Railway Board ). Rail Bhavan, New Delhi. (b) General Manager, Northern Railway. Baroda House, New Delhi.
( 3 ) TWO summons were issued to the defendants as detailed above. Summons addressed to authority at 1 (a) was served on 24th Dec. 1979 whereas the suons to authority at 1 (b) was served on 7th Dec. 1979. In spite of service nobody appeared on behalf of Union of India and after recording ex parte evidence, the learned trial Court passed a decree dated 26th May. 1980.
( 4 ) ON or about 15th Sept. 1980 the Union of India filed the aforesaid application under O. 9 R. 13 of the Civil P. C. for setting aside the aforesaid ex parte decree. In this application it was inter alia alleged that after the service of the defendants on a clerk of Railway Board, the Railway Board wrote a letter to the Senior Sub-Judge on 18th Dec. 1979 that as the case related to the General Manager, Northern Railway, summons be sent to him for necessary action. A copy of the summons was also sent by the Railway Board to the office of the General Manager, Northern Railway. It was also stated that the summons was also served on the clerk of the office of the General Manager, Northern Railway, directly. It was further averred that the office of the General Manager, Northern Railway, then sent the summons to the office of the Divisional Railway Manager. Northern Railway, New Delhi, as the case did not relate to the headquarters office of the Northern Railway. It was then averred that the summons were misplaced somewhere in the office of the Divisional Railway Manager and consequently they could not reach the concerned official who deals with the legal cases on behalf of the Northern Railway. It was then pleaded that the summons having been misplaced without their having reached the Legal Branch of the Divisional Railway Manager, no date of hearing was noted by anyone and consequently none appeared in the Court on 10-1-1980 when the case was fixed. It was further stated that the plaintiff (respondent herein) wrote a letter dated 25-8-1980 to the Secretary, Railway Board, which was received by the said office on the same date and it was on receipt of that letter that the Railway Board came to know about the ex parte decree having been passed by the Court on account of non-appearance of any of the defendants. It was also stated that thereafter the Railway Board immediately approached the office of the General Manager. Northern Railway and informed him. of the passing of the ex parte decree against the Union of India. A copy of the judgment was also sent by the plaintiff (respondent) along with the letter dated 25th Aug. 1930. It was pleaded that the non-appearance of anyone on behalf of the defendants on 10-1-1980 was not intentional and was for the reasons that the summons which had been sent by the office of the General Manager, Northern Railway, to the office of the Divisional Railway Manager. Northern Railway. New Delhi, was misplaced somewhere and nobody knew about the date of hearing and thus there was sufficient cause for non-appearance of anyone on behalf of the defendants on 10-1-1980. It was in these circumstances that the defendent p
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