P L D 1952 Lahore 456 (PLP)

M. R. KAYANI, J.‑Malik Muhammad Bashir brought a suit against twelve defendants, including Kamal‑ud‑Din appellant, challenging twelve alienations made by his brother Fida Hussain in favour of different persons. The suit was originally instituted in the Court of Mr. Jawala Das, Subordinate judge, and transferred in March 1946 to Ch. Aziz Ahmad, Kamal‑ud‑Din appeared in that Court on the 30th of March, 1946. In May 1947 Ch. Aziz. Ahmad was succeeded by Ch. Azam Ali, who passed the following order on the 26th of June 1947 :‑ "In view of my absence on leave on 16th June 1947 a notice to issue to counsel for defendants 1 and 11 and also to defendants 2 and 3 for the 29th of July 1947". Defendant No. 11 was Kamal‑ud‑Din appellant. On the 29th of July 1947, since defendant No. 11 had still remained unserved, another notice was issued to his counsel for appearance on the 6th of October 1947. In the meantime Ch. Azam Ali had been replaced by Mr. Muhammad ‑Anwar, with powers of a second class subordinate judge, and as the present suit could be tried only by a first class subordinate judge, he awaited orders of the High Court conferring upon him first class powers. These powers came some time before the 14th of January 1948, and on that date an order was passed that proceedings should be ex‑parte against defendant No. 11, Kamal‑ud‑Din. On the 29th of May 1948 an ex‑parte decree was passed against him and the other defendants. On the 23rd of August 1948 he applied under O. IX rule 13 Civil P. C., for the setting aside of the decree. The application having been dismissed as time‑barred, an appeal was preferred in this Court with the same result. The present is Letters Patent Appeal from the order of the learned Single Judge. Article 164 of the Limitation Act prescribes a limitation of thirty days for an application by a defendant for an order to set aside a decree passed ex‑parte from "the date of the decree or, ‑where the summons was not duly served, when the appli cant has knowledge of the decree": The appellant maintained that his knowledge was within thirty days of the application. The learned Single judge has held, however, that the appli cation should have been within thirty days of the decree and that the question of the applicant's knowledge did not arise because the word "summons", as used in Article 164, refers to the first summons issued to the defendant after the institution of the suit. For this view he has relied on Mst. Lal Devi v. Amar Nath, A I R 1920 Lah. 261; Surjit Singh v. Lieut. Capt. C. c

7. Torrie, A I R 1924 Lah. 666; and Sardarni Hamir Kaur v. Court of wards of the Estate of Sardar Balwant Singh, A I R. 1932 Lah. 538. (1934) 154 I C 429 (Peshawar) has also taken the same view. For the appellant, reliance was placed on Raghbir Brothers v. Daulat Ram, (1916) 36 I C, 32 but that case is easily distin guishable. A suit instituted in a Punjab Court had been stayed at the instance of the defendants on the ground that they had instituted against the plaintiff a suit in a Bomby Court in which they said they had given credit to the plaintiff for the sum claimed by him in the Punjab suit. The defendants' suit in the Bombay Court was dismissed in default, whereupon the plaintiff asked the Punjab Court to resume the proceedings. The defendants replied that proceedings were going on and the Bombay Court for readmission of the defendants suit dis missed. in‑default. The case was then adjourned to the 21st December 1914 with the order that the defendants should produce a copy of the proceedings in the Bombay Court. On that date, however, neither the defendants nor their counsel were present, and the Court forthwith passed an ex‑parte decree against them. On the 11th February 1915 the defen dants applied that the ex‑parte decree should be set aside on the ground that they had no intimation that their case would be heard on the 21st December 1914 and that it was only on the 18th January 1915 that they had. acquired knowledge of the ex‑parte decree having been passed against them: The Subordinate judge rejected this application as barred by time. In second appeal to the Chief Court, Scott‑Smith, J., accepted the contention that the 21st of December 1914 was not a date fixed for the hearing of the case, but merely for considering whether the suit shall continue to be stayed or whether the order staying proceedings should be set aside and the hearing on merits be resumed. The learned Judge also observed that the Subordinate judge had not cancelled the order staying proceedings, nor had he ever given any order to the effect that if the defendants did not produce the order of the Bombay Court, the case would be forthwith proceeded with on the merits. Apart from the reasoning of that case, it does not appear that the word "summons" used in Article 164 was ever under discussion. The first case on which the learned Single Judge has relied, and which the other two cases have followed, has merely accepted the observations of Mr. K. J. Rustomji in his com mentray on the Law of Limitation. Mr. Rustomji states at page 1583 of his fifth edition that "summons in column third of Article 164 refers, (it seems), to the summons for the first hearing of the suit and when there has been a due service of such summons, the mere circumstance that the defendant did not receive notice of an adjourned hearing will not bring the second part of column third into operation. Accordingly the defendant must apply to set aside the decree within 30 days or the date of the decree, and he is not entitled to count limi tation from the date when he had knowledge of decree". Notice has been taken in this commentary of a Patna case, Karileswar Maharana v. Abduct Rahman (1936) 164 I C 854, as taking a different view, but in that case the observa tions made would seem to support Mr. Rustomji's view. The suit had been transferred at the defendant's instance from Jamshedpur to Purulia and a date was fixed for hearing. On that date the defendant did not appear and the suit was decreed ex‑parte. He applied for the setting aside of the decree on the ground that he had no notice of the date, and although his application was dismissed by the Munsif, it was accepted by the District Judge. The, matter went up to the High Court in revision, when it was argued that the summons having been duly served on the defendant, the period of limitation was 30 days from the date of the decree, and that the present appli cation, not having been within 30 days, should have been dismissed. The opposite party urged that by reason of the justice of his case, the Court should not interfere in revision. Macpherson, J., observed that the circumstances were alto gether peculiar and, refusing to interfere in revision, made the following observation :‑ "The action of the learned Munsif bears a close analogy to proceeding ex‑pane when the defendant is absent because the summons has not been served upon him. It is not unrea sonable to treat the present case as practically one of non -service of summons on the defendant." In other words, the learned judge accepted the reasoning that Article 164, when it spoke of the summons, referred only to the summons for the first hearing of the suit. We are inclined to accept this view as the term "sum mons" has been used in the Code of Civil Procedure only in relation to the first appearance of the defendant. Thus, under O. V. rule 1, "when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim on a day to be therein specified". It was pointed out by learned counsel for the appellant that the word "summons" was used also in O. XVI rule 1 in connection with "persons whose attendance is required either to give evidence or to produce document", but that merely shows that the term is restricted to the first appearance in Court. The Code does not provide for subsequent summons for appearance, and it is, therefore, reasonable to assume that when Article 164 was being drafted, the draftsman had an eye to the use of the word "summons" in O. V. Subsequent intimations to parties in respect of a transfer of a case from one Court to another are made by what is called a "notice", and we think the two terms are substantially diffe rent. The contention of the learned counsel that the two terms "notice" and "summons" are identical and interchange able is not borne out by their use in the Code. Thus, section 80. provides for a notice to the Government in respect of a certain class of suits and under section 142 a separate provision has been made for notices, requiring that "all orders and notices served on or given to any person under the pro visions of this Code shall be in writing". According to O.XLVIII rule 2 such notices are to be served in the manner provided for the service of summons. That clearly shows that the Code drew a distinction between a summons and a notice, but required, for the sake of convenience, that the manner of the service of a notice shall be the same as that of a summons. In Wharton's Law Lexicon a summons has been defined as "a call of authority, admonition to appear in Court, a citation". That may to some extent be said of a notice also, but the term has been further eLahorated with reference to the practice of various Courts in England. Thus, "every action in the High Court shall be commenced by a writ of summons", etc., and in judges' or Masters' Chambers a summons is "the means by which one party brings the other before a judge (or a master) to settle matters of detail in the procedure of a suit". In the Court of Summary jurisdiction a summons is issued to enable the defendant "to answer charge which justices may themselves deal with". In a County Court "after the issue of a plaint, a summons is issued requiring the defen dant to attend on a given date to answer the plaintiff's claim": In all these cases, it will be noticed, the summons is intended for the first appearance of the party in Court. Lastly, it was argued that, if the meaning of the word "summons" is confined to the first appearance of the defendant, cases of hardship might arise, where a party had no notice of the, proceedings. We think it appears to have been understood that once a party receives intimation of an action it is for him to pursue it and to keep himself in touch with the proceedings, either personally or through his counsel. The appeal is, therefore, dismissed, but we prefer to leave the parties to bear their own costs. A. H. Appeal dismissed.