1980 PLP 466 (SCMR)

Nemo for Respondents Date of hearing: 23rd January, 1980. KARAM ELAHEE CHAUHAN, J.‑The dispute in this case is about a quarter bearing No. 71‑B, 2‑Unit No. VIII, situated at Shah Latifabad, Hyderabad. Muhammad Ishaque (hereinafter called the plaintiff) respondent filed a suit for a declaration that the aforesaid quarter belonged to him and for a consequent injunction to restrain the defendant from interfering with the title and possession of the plaintiff. The suit was decreed by the learned Civil Judge on 30th November, 1968.

2. The defendants, 'petitioner filed an appeal which was accepted ex parte by .the learned Additional District Judge, Hyderabad, on 25th May, 1971.

3. The plaintiff/respondent filed an application under Order XLI, rule 21, C. P. C. for re‑hearing of the appeal on the ground that on the date previous to 25th May, 1971 the learned Additional District Judge being on leave, the case was left over as unattended without any date given by any competent officer or authority with the result that when it came up for hearing on 25th May, 1971, the plaintiff/respondent had no knowledge of the same and that it was in these circumstances that the appeal was heard ex parte. The reply of the petitioner/defendant was that on the date aforesaid the Reader/Superintendent of the Court, in the absence of the learned Additional District Judge had directed the parties to appear on 25th May, 1971. However, this reply was not accepted on account of the personal affidavit of the learned counsel for the plaintiff/ respondent wherein he deposed that he was himself present on the relevant previous date and that the Reader,/Superintendent of the Court had not given any date for further appearance of the parties or the hearing of the appeal, and had rather verbally observed that the necessary notice will be issued later. It was further deposed therein that no notice as such was issued but the appeal was heard by the learned Additional District Judge on 25th May, 1971 and was accepted ex parte.

4. The learned Additional District Judge noticing that no notice to the parties for 25th May, 1971 had been issued, and also holding the personal affidavit of the learned counsel for the plaintiff/respondent set aside his previous ex parte decision dated 25th May, 1971 and reheard the appeal. On re‑hearing he found no force in the appeal and dismissed the same on 30th April, 1973.

5. The defendant/ petitioner filed a Revision Application (being R. A. No. 151/73)‑in the High Court but without any success as the same was dismissed on 25th November, 1978.

6. The defendant/petitioner has now come up in a petition for special leave to appeal against the same to this Court.

7. Learned counsel did not address any argument before us on the merits of the case and the sole point argued by him was that according to Article 169 of the Limitation Act, IX of 1908 an application for re hearing of an appeal decided ex parte should have been filed within 30 days from the date of the order/decree whereas the application in the instant case which was filed by the plaintiff/respondent in the Court of the learned Additional District Judge on 11th November, 1971 was hopelessly time barred. The relevant Article of the Limitation Act reads as follows : ‑ "Application for the re‑hearing of an appeal heard ex parte‑thirty days‑from the date of the decision or where a notice of the appeal was not duly served, when the applicant has knowledge of the decree."

8. Learned counsel argued that in the aforesaid Article the Words "where a notice of the appeal was not duly served" referred to the initial/ original notice which may have at the earlies stage of the appeal bee issued to the respondent, and not to any notice subsequent thereto for any subsequent date when the appeal may have been fixed at some late stage of the case. The contention has no merit. It was held in Thakar Nil Chand v. Thakar Hamal Chanal and another (A I R 1940 Lah. 49) that the "notice" referred to in the aforesaid Article meant the notice of the date on which appeal is disposed of and not any earlier notice. This was followed in Bachcha v. Kameshwar Prasad Singh (A I R 1963 All. 311).

9. When confronted with this situation learned counsel submitted that in the instant case Reader/Superintendent of the Court according to the relevant Rules on the subject, could have given the date to the counsel for the parties and the mere fact that the date was not given by the Court itself would not make any difference. The contention has no merit, because, the point is not whether the Reader/Superintendent could or could not have given any date; but whether he in fact gave any date at all or whether he told the learned counsel for the plaintiff/respondent that the date will be communicated to him later. In this respect the two Courts below chose to accept the personal affidavit filed by the concerned Advocate ‑himself, wherein he deposed that he was present op‑the previous date of the hearing when the Court was absent and that the Reader/ Superintendent gave no date and rather stated that the notice will follow later on. The appeal in this respect is concluded by a finding of fact based on proper appreciation of evidence and is not open to challenge especially when it suffers from no misreading of the record and violation of any principal Levant on the subject aforesaid. Learned counsel referred to Natesa Ayyar v. Venkalakshmi Ammal and others (A I R 1940Mad. 53), Tripendr Narayan Choudhuri and another v. Mt. Chandramani Baruani (A I R 1952 Assam 45) and C. P. S. L. A. No. 101/1973 decided on 12th March, 1973, but they are distinguishable and have no application to the facts and the circumstances of the present case.

10. The result is that this petition has no merit and is dismissed. Petition dismissed.