Chattisgarh High CourtBharat Petroleum Corporation Limited vs Khatanand Alias K. Anand Saraf And Ors. on 11 May, 2005Equivalent citations: AIR2006CHH22, 2006(2)MPHT89(CG)ORDER
 

 Vijay Kumar Shrivastava, J.1. This is an appeal directed against the order dated 292002, passed by learned IIIrd Additional District Judge, Bilaspur in Miscellaneous Civil Case No. 19/ 2002, rejecting an application under Order XLI Rules 19 and 21 read withSection 151of the Code of Civil Procedure.2. Facts material for disposal of this appeal are that, the plaintiffs had filed a civil suit for possession of land bearing Khasra No. 748/2 area 0.76 acres situated at Village Tifra, District Bilaspur as also for recovery of arrears of rent of Rs. 2,175/- and damages against, the defendant M/s. Bharat Petroleum Corporation Limited, in the Court of Civil Judge Class-1, Bilaspur. The said suit was registered as Civil Suit No. 69-A/ 1998. The defendant remained ex parte in the suit. Learned IVth Civil Judge Class-I, Bilaspur, vide judgment and decree dated 1-12-1998, partly allowed the suit and passed decree against the defendant, for payment of arrears of rent. Being aggrieved by the said judgment and decree, the plaintiffs preferred Civil Appeal No. 7A/1999 in the Court of District Judge, Bilaspur. The defendant M/s. Bharat Petroleum Corporation Limited remained ex parte in the appeal. By ex parte judgment and decree dated 21-9-1999, the District Judge, Bilaspur allowed the appeal and for possession and mesne profit passed decree in favour of the plaintiffs.3. The defendant M/s. Bharat Petroleum Corporation Limited filed an application under Order XLI Rules 19 and 21 read withSection 151of the Code of Civil Procedure through its Power of Attorney Holder B. Krishna Murthy for setting aside the ex parte decree dated 21-9-1999 passed in Civil Appeal No. 7A/1999 on the ground that it was not duly served with the notice of appeal and hence could not appear and contest: the appeal before the Court. The defendant came to know about the decree on 12-4-2000 when in execution proceedings process server came to execute the possession warrant. Therefore, on 15-4-2000, the defendant filed an application for setting aside the ex parte decree along with a separate application underSection 5of the Limitation Act for condonation of delay. The plaintiffs opposed both the applications not only on merit but also on their maintainability.4. Learned Court below i.e. first appellate Court tried the issues involved in the matter, and after appreciating the evidence, held that, the defendant M/s. Bharat Petroleum Corporation Limited failed to explain the delay in filing the application, as also the Power of Attorney executed by it bears the signature of only one Director and one Secretary, whereas legally, it was required to be signed by two Directors, as such, the said two applications were not filed by a competent person and, therefore, by the impugned order dated 29-10-2002, dismissed those applications.5. Heard learned Counsel for both the parties and perused the records of the Courts below.6. Learned Court below i.e. first appellate Court, vide impugned order, has held that, no notice hearing of the appeal on 7-7-1999 was served on the defendant; Learned Counsel for the respondents /plaintiffs, in arguments, contended that, the said finding of the Court below i.e. first appellate Court is incorrect. On the other hand, learned Counsel for the appellant/defendant supported the said finding.7. On 3-4-1999, Civil Appeal No. 7A/ 1999 was admitted for final hearing and the plaintiffs were directed to pay P. F. within 3 days for issuing notice to the defendant and the date for final hearing was fixed for 7-7-1999. On 7-7-1999, the District Judge was on leave, therefore, the Court Reader fixed the case for 16-7-1999. On 16-7-1999, learned District Judge held that, notice for 7-7-1999 was served on the defendant and, therefore, he proceeded ex parte against the defendant. The defendant has challenged the service of notice, and in its application, stated that, it was not duly served with the notice, therefore, it remained absent in the appeal. Learned Court below i.e. first appellate Court, after deeply examining the matter, found that, no order for issuance of notice by registered post acknowledgment due was passed by the Court, and according to law, only in addition to service of notice by ordinary process, it can be ordered and served by registered post. Neither notice for service by ordinary process was issued by the Court nor the defendant was served with such notice. Relying on Electric Construction and Equipment Co. Limited v. Parmali Vailes Limited, reported in 1991 Jab LJ 45, the Court below i.e. first appellate Court held that, the service of notice by registered post is not a due service in accordance with law, and accordingly, held that, no legal notice for the hearing date 7-7-1999 was served on the defendant.8. For proper appreciation of the lis, the relevant provisionsof the Code of Civil Procedure, which were in force on the disputed date, are quoted below :Order XLI Rule 14: "Publication and service of notice of day for hearing appeal.--(1) Notice of the day fixed under Rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.(2) Appellate Court may itself cause notice to be served.-- Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate court may itself cause the notice to be served on the respondent or his pleader under the provisions above referred to."Order V Rule 19-A : "Simultaneous issue of summons for service by post in addition to personal service.-- (1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by registered post, acknowledgment due addressed to the defendant, or his agent empowered to accept the service, at the place where the defendant, or his agent, actually and voluntarily resides or carries on business or personally works for gain:Provided that nothing in this sub-rule shall require the Court to issue a summons for service by registered post, where, in the circumstances of the case, the Court considers it unnecessary.9. As per the law applicable on the disputed date, for valid service on the defendant, it was necessary that, the notice, accompanied with copy of memorandum of appeal, should have been issued by the means provided under Order V. Rules 9 to 19of the Code of Civil Procedure, and if the Court had ordered, in addition to and simultaneously with the issue of notice by those modes, notice for service by registered post could have been issued, Here, it is pertinent to note that, the first appellate court never asked the plaintiffs to pay P, F. and expenses for service by registered post in addition to normal mode, therefore, neither the notice for service by registered post could have been issued nor was required to be served. Therefore, when no order for issuance of notice by registered post, in addition to ordinary mode, was passed by the first appellate Court, and no notice for service by the modes provided under Order V Rules 9 to 19of the Code of Civil Procedurewas issued, the service of notice, in violation of those rules, effected on the defendant by registered post, shall certainly be held illegal and, therefore, learned Court below i.e. first appellate court, after minutely appreciating the material on record, in holding the service illegal, did not commit any illegality or irregularity.10. During the arguments, it has also been raised that, on 16-7-1999, the Court below i.e. first appellate Court had no right or power to proceed ex parte against the defendant as the date 16-7-1999 was not the date fixed for hearing of the appeal. That date was fixed by clerical staff of the Court. On 7-7-1999, the Presiding Officer was on leave, therefore, on that date also, the case could not be called for hearing. From the record, it is apparent that on 7-7-1999, the Presiding Officer i.e. District Judge was on leave, therefore, on that date, the case could not have been called for hearing. Another date 16-7-1999 was fixed by the Clerk, that too not for hearing. Therefore, on 16-7-1999, the case was not fixed for hearing therefore, on that date, the defendant could not have been proceeded ex parte by the Court. Hence, the defendant was not required to appear on 7-7-1999 and 16-7-1999, therefore according to Order XLI Rule 17(2)of the Code of Civil Procedure, the first appellate Court had no power to proceed ex parte on those two dates against the defendant.11. Learned Counsel for the appellant/ defendant vehemently contended that, the respondents/plaintiffs, without preferring cross-appeal or cross-objection, have no right to raise the dispute regarding finding given vide impugned order by the Court below i.e. first appellate Court on the service of notice. On the other hand, learned Counsel for the respondents/plaintiffs urged that, the plaintiffs are supporting the impugned order, therefore, in absence of any cross appeal or cross objection, they have right to assail the finding of the Court below i.e. first appellate Court, which is against them.12. The relevant provisions, having vital impact on the case, contained under Order XLI, Rules 21 and 22(1)of the Code of Civil Procedureare quoted below :Order XLI, Rule 21 : "Re-hearing on application of respondent against whom ex parte decree made.-- Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him."Order XLI. Rule 22(1) : "Upon hearing respondent may object to decree as if he had preferred a separate appeal -- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.Explanation. -- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.13. From bare reading of the aforesaid provisions, it is as clear as crystal that, if the defendant satisfies the Court that the notice was not duly served on it and files application in accordance with law, the court was bound to set aside the ex parte decree and re-hear the appeal. In the present case, learned Court below i.e. first appellate Court although held that, no valid notice was served on the defendant, but only on the ground of limitation, the application filed by the defendant was dismissed by the impugned order. Therefore, the impugned order is based on the finding arrived at by the Court below i.e. first appellate Court regarding non service of notice on the defendant as well as the period of limitation.14. TheOrder XLI Rule 22 of the Code of Civil Procedureempowers the respondents/ plaintiffs, to support the decree, and without filing any appeal, to raise the grounds for deciding issues in their favour, if had been decided against them, but it is necessary for them to raise the same by filing cross-objection. It is also apparent from the explanation provided underOrder XLI Rule 22 of the Code of Civil Procedureand the language used under Order XLI Rule 22(1)of the Code of Civil Procedurethat, if any substantial issue had been decided against the respondents/plaintiffs, and without that being decided in their favour, they are not in a position to support the order, it is necessary for them to file a cross-objection and to challenge the finding recorded against them.15. From the aforesaid discussions, it is held that--(1) learned Court below i.e. first appellate Court did not commit any illegality by recording the finding that no legal notice was served on the defendant for 7-7-1999.(ii) only on the date fixed for hearing of the appeal if the respondent does not appear can be ordered ex parte. Here in the present case, neither the date 7-7-1999 nor 16-7-1999 was the date fixed for hearing the appeal.(iii) It is not permissible for the plaintiffs to challenge the finding recorded by the Court below i.e. first appellate Court regarding non-service of legal notice on the defendant without filing any cross-objection regarding it.16. The ex parte judgment and decree was passed on 21-9-1999. For setting aside the same, limitation has been prescribed underArticle 123of theLimitation Act, which reads as below :---------------------------------------------------------------------------------------------Description of suit                Period of Limitation            Time from which
                                                                  period begins to run---------------------------------------------------------------------------------------------Article 123.-- To set aside a        Thirty days.              The date of the decree or where
decree passed ex parte or to                                   the summons or notice was
re-hear an appeal decreed or                                   not duly served, when the ap-
heard ex parte.                                                 plicant had knowledge of the
Explanation.-- For the pur-                                     decree.
poses of this Article, substi-
tuted service under Rule 20
ofOrder V of the Code of Civil
Procedure, 1908, shall not be
deemed to be due service.---------------------------------------------------------------------------------------------17. From the aforesaid provision, the limitation for presenting the application has been prescribed i.e. 30 days from the date of the decree or where the summons or notice was not duly served when the applicant had knowledge of the decree. In the present case, learned Court below i.e. first appellate Court held that, no legal notice was served on the defendant, therefore, for limitation, the date of knowledge of the decree plays a vital role as the limitation of 30 days will start from the date of knowledge. Learned Court below i.e. first appellate Court held that, the defendant came to know on 21-9-1999 that the judgment and decree has been passed on that date in Civil Appeal No. 7A/1999, if not, at least they had come to know the same on 21-2-2000, the date on which letter Ex. D/3 was received by it.18. B. Krishna Murthy (AW-1), the Territory Manager of the defendant deposed on oath that, for the first time, he came to know on 12-4-2000 when the Court's Process Server came to execute the possession warrant. In cross-examination, he admitted the fact that, a talk of compromise between the parties was going on. Nowhere he accepted that he came to know the complete details of the judgment and decree earlier to 12-4-2000. The fact that, B. Krishna Murthy (AW-1) came to know about the passing of the judgment and decree against the defendant on 12-1-2000, finds support also from the statement of Ashok Dayashankar Tiwari (AW-2) and Kisan Budhiya (AW-3). To rebut the fact that only on 12-4-2000, the defendant came to know about the ex parte judgment and decree, witness Dharam Prakash Saraf (NAW-1) has been produced, who in his statement, deposed that, on 21-9-1999, he telephoned to Sales Manager Ashok Tiwari and informed him that, decree has been passed. He also informed the Territory Manager B. Krishna Murthy. On 24-9-1999, he told B. Krishna Murthy that, he was not taking interest in the case, therefore, he will proceed to take possession of the land. On 22-10-1999, again he gave the information regarding the case. On 8-2-2000, he visited Mumbai to meet Chairman U. Sunderajan, who was on leave, therefore, he gave information regarding the judgment to his P. A. On 18-2-2000, he sent a letter, Ex. D-3. In that letter, he disclosed that on 21-9-1999, information regarding judgment passed in appeal has been given. Ex. D-3 and Ex. D-11 are the letters issued by this witness and also proved by him. In both the letters, he has stated that the Chairman was on leave, therefore, at Mumbai, he could not meet the chairman and talk to him. In both the letters, he did not mention that he unveiled the facts regarding passing of the judgment and decree to his P. A. from both the documents, it is also apparent that, regarding passing of the judgment and decree, except stating in Ex. D-3 that on 21-9-1999, on telephone, he gave information regarding judgment dated 21-9-1999, no other details have been mentioned. Therefore, it appears that, in oral evidence, he exaggerated the fact regarding unveiling the passing of judgment and decree, therefore, on 21-9-1999 or thereafter, any information regarding judgment and decree was given by the plaintiffs to the defendant, other than Ex. D-3, was not acceptable. Although from the date of receipt, of the letter Ex. D-3, it can be held that, the information that, the ex parte judgment was passed on 21-9-1999, was received by the defendant, but whether, as enumerated underArticle 123of theLimitation Act, that will amount to knowledge or not, is an important stake, which requires to be decided on the facts of the case.19. Before coming into force the Act of 1963, the Act of 1908 was in force, and presentArticle 123of theLimitation Actcorresponds toArticle 164of the oldLimitation Act. Hon'ble the Apex Court, while dealing with the matter underArticle 164of theLimitation Actin Panna Lal v. Murari Lal (dead) by his legal representatives reported in AIR 1967 SC 1384, observed as below (Para 4) :(A) Limitation Act (1908), Article 164 --"Knowledge of the decree" -- Meaning of.The expression "knowledge of the decree" inArticle 164means knowledge of the particular decree which is sought to be set aside. When the summons was not duly served, limitation underArticle 164does not start running against the defendant because he has received some vague information that some decree has been passed against him. It is a question of fact in each case whether the information conveyed to the defendant is sufficient to impute to him knowledge of the decree within the meaning ofArticle 164.The test of the sufficiency is not what the information would mean to a stranger, but what it meant to the defendant in the light of his previous dealing with the plaintiff and the facts and circumstances known to him. If from the information conveyed to him the defendant has knowledge of the decree sought to be set aside, time begins to run against him underArticle 164.It is not necessary that a copy of the decree should be served on the defendant. It is sufficient that the defendant has knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree.20. Hon'ble the High Court of Madhya Pradesh, while dealing with the expression "knowledge of decree" in Smt. Chhutbai V. Madanlal reported in AIR 1989 Madh Pra 330, observed as below :Para 7 : "Now coming to the question of application being barred by time, we are of the opinion that the appellate Court has completely misdirected itself in holding that the application was barred by time. The expression "knowledge of the decree" used inArticle 123of theLimitation Act, 1963, means the knowledge of a particular decree, which is sought to be set aside. It has been held that when the summons was not duly served on the petitioners, the limitation underArticle 123of theLimitation Actdoes not start running against the petitioners because they received some vague information that some decree has been passed against them See AIR 1967 SC 1384 Pannalal v. Murarilal.No doubt in this case, it has been held that it is a question of fact in each case whether the information communicated to the defendant is sufficient to impute to him knowledge of the decree within the meaning ofArticle 164of the oldLimitation Act. In the present case, the appellate Court, itself has held that in the notice Ex. P-4, it has not been mentioned that from which Court the decree was passed nor the date of the decree has been mentioned but as the case No. 1 has been mentioned the petitioner could have gathered the knowledge by inspecting the Register of Civil Suit maintained by the Courts. Admittedly in Mhow, there is not only one Civil Judge Class II, but there are two or three Civil Judges. Therefore, this type of information cannot be said to be the knowledge of the decree. There is no finding of the Appellate Court that from the notice Ex. A-4, the petitioners got the knowledge of the decree, but, on the other hand, the finding is different that the petitioners could have inspected the record and could have got the knowledge by finding out the particulars of the decree. In our opinion, on such a finding of the appellate Court, the order of the appellate Court holding that the application under Order 9, Rule 13, C. P. C. was barred by time, cannot be sustained and deserves to be quashed.21. From the aforesaid enunciations, it is clear that, only vague information that, judgment has been passed on 21-9-1999, is not sufficient to satisfy the requirement of knowledge. The plaintiffs have not given any information regarding the name of the Court, the name of the parties and the particulars of the judgment and decree i.e. the decree passed, therefore, only mentioning in letter Ex.D-3 that, on 21-9-1999, passing of judgment dated 21-9-1999 was informed on telephone, does not come within the purview of knowledge. Hence, by virtue of the letter, Ex. D-3, whether it has been served on the defendant or not, no inference can be drawn that the defendant had received knowledge on 21-9-1999 or on 21-2-2000 regarding the decree.22. From the aforesaid discussions and evidence tendered by both the parties, which are on record, it was not proved that, the defendant had knowledge of the decree on 21-9-1999 or 21-2-2000, but was proved that, the defendant came to know about the said judgment and decree on 12-4-2000, when the Process Server of the Court came to execute the possession warrant, and thereafter, the application for setting aside the ex parte decree was filed on 15-4-2000 i.e. within 30 days from 12-4-2000. The application was filed within the prescribed period of limitation, therefore, learned Court below i.e. first appellate Court, in holding the application to be barred by time, committed illegality.23. Learned Counsel for the respondents/plaintiffs has contended that, B. Krishna Murthy is not a competent person to sign the application under Order XLI Rules 19 and 21 read withSection 151of the Code of Civil Procedure filed by the defendant on the ground that the power of attorney in his favour is not in accordance with law. On the other hand, learned Counsel for the appellant/defendant vehemently contended that, the power of attorney, issued in favour of B. Krishna Murthy, is valid and according to law, as also he, being an authorised officer of the defendant M/s. Bharat Petroleum Corporation Limited, entitled to file and sign the said application.24. The Court below i.e. first appellate Court, in para 23 of the impugned order, held that, although the power of attorney, Ex. P-2 was issued by M/s. Bharat Petroleum Corporation Limited under its common seal, yet the same bears signature of only one Director and one Secretary, whereas signatures of two Directors were required for execution of the said document, and finding the same, the Court below i.e. first appellate Court held that, the application under Order XLI Rule 21 read withSection 151of the Code of Civil Procedure was not filed by a competent person.25. Admittedly, the defendant is a corporation, therefore, the provisions ofOrder XXIX Rule 1 of the Code of Civil Procedurewill attract. The said provision reads as below :Order XXIX. Rule 1 : "Subscription and verification of pleading.-- In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case.26.Order VI Rule 14 of the Code of Civil Procedurecontains the provisions for signing the pleadings. That provision reads as below :Order VI. Rule 14 : "Pleading to be signed.-- Every pleading shall be signed by the party and his pleader (if any) : Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf.27. From perusal of the aforesaid provisions, not only the power of attorney holder but also the principal officer of the corporation was permitted to verify and sign the pleading. B. Krishna Murthy, who signed the application, was the Territory Manager of the office established at Bhilai by the defendant M/s. Bharat Petroleum Corporation Limited, and this fact has not been disputed by the plaintiffs, therefore, B. Krishna Murthy, had power to sign the application even without power of attorney, and at the most, that was required by the corporation to rectify the said action.28. Hon'ble the Apex Court, inUnited Bank of India v. Naresh Kumar, reported in AIR 1997 SC 3, held that, (Para 9) --In cases where suits are instituted or defended on behalf of a public corporation like bank; public interest should not be permitted to be defeated on a mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is sufficient power in the Courts, underthe Code of Civil Procedure, to ensure that injustice is not done to any party who has a just case. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.29. During the arguments, learned Counsel for the appellant/defendant, relying on Clause 95 of the Memorandum and Articles of Association of Bharat Petroleum Corporation Limited, urged that, for issuing power of attorney, signature of only one Director and counter-signature of Secretary is sufficient. The said provision has not been challenged by the plaintiffs. Learned Court below i.e. first appellate Court, vide impugned order, has held that, the power of attorney has been signed by one of Directors of M/s. Bharat Petroleum Corporation Limited and also bears the signature of its Secretary.30. From the aforesaid discussions, it appears that, the application under Order XLI Rules 19 and 21 read withSection 151of the Code of Civil Procedure has been signed by B. Krishna Murthy, a Principal Officer of M/s. Bharat Petroleum Corporation Limited and duly authorised under power of attorney to act on behalf of it, therefore, the application was filed by a competent person.31. Apart from that, from the aforesaid provisions and the law enunciated by Hon'ble the Apex Court, it is held that, when any case is prosecuted or defended by a corporation or company, that can be signed by the principal officer of the company/corporation subject to rectification by the company/corporation. Further held that, only on such type of irregularities, which can be cured at any stage, justice should not be denied to the party entitled for it. Hence, if at all, learned Court below i.e. first appellate Court was of the opinion that, the application was not signed by a competent person, that should not be made a ground for its rejection.32. It is manifest that, the application under Order XLI Rules 19 and 21 read withSection 151of the Code of Civil Procedure was filed by a competent person and also within the time prescribed for it, therefore, the findings recorded by the Court below i.e., first appellate Court on these issues suffer from gross illegality and are required to be set aside.33. The appeal is allowed. On payment of cost of Rs. 5,000/- (Rupees Five Thousand only) to the plaintiffs by the defendant within a period of one month from today, the impugned order, passed by the Court below i.e. first appellate Court, so far as it relates to dismissal of the application filed by the defendant under Order XLI Rules 19 and 21 read withSection 151of the Code of Civil Procedure, is set aside. The Court below i.e. first appellate Court shall re-hear the Civil Appeal No. 7A/1999, and after affording proper opportunities to both the parties, decide the same afresh as early as possible preferably within a period of three months from the date of receipt of copy of this order.34. Both the parties are directed to appear before the Court below i.e. first appellate Court on 13th June, 2005. No further notice shall be required to be served on the parties for their appearance before the first appellate Court.