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TMI Blog1976 (8) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... y suit and on summons for judgment being taken out, the defendants in the suit including the present petitioner applied for and obtained unconditional leave to defend the suits. On the leave being granted, the suits were transferred as Long Cause and were pending for hearing. All the three suits were first notified for final hearing on 10th November, 1974 and came to be adjourned in course of time to 3rd December, 1974 when the Advocate appearing for the present petitioner who was defendant No. 2 submitted a statement saying that he had no further instructions in the matter on behalf of both the defendants and both the defendants were absent. Evidence on behalf of the plaintiff was recorded and experts decree was made on 5th December 1974. Original defendant No. 1 has accepted the decree because he has neither applied for setting aside the decree nor has preferred appeal against the decree. Present petitioner original defendant No. 2 gave an application on 24th February 1975 in each suit for setting aside the experts decree and permit it to participate in the proceeding and to hear the proceedings from the stage where suits were proceeded experts. These Applications were Civil Misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er gave no-instruction statement and suit proceeded experts. Question is whether such an experts decree would be governed by Rule 4 of Order 37. Rule 4 reads as under: 4. After decree the Court may, under special circumstances, set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summers and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. The jurisdictional fact for invoking Rule 4 would be that a decree as contemplated by Rule 2 has been made. If the Court thinks it proper to set aside the decree Rule 4 enables the Court to give leave to the defendant to appear to the summons and defend the suit on such terms as the Court thinks fit. Power of the Court to permit appearance in response to the summons and grant leave to defend the suit would unmistakably show that an experts decree was made in a suit governed by Rule 2 in which there was no appearance in response to the summons or leave to defend was not granted or it was granted subject to the condition and condition was not fulfilled and suit ended in a decree. It is such a decree, which can be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttend on 25th November 1974. Suit came to be adjourned to 28th November 1974 and then to 3rd December 1974. The learned Advocate who appeared for both the defendants retired from the suit stating that he had no further instructions in the matter, and suit ended in an experts decree after the plaintiff's evidence was recorded. 7. It is again an admitted position that application for restoration was filed on 24th February 1975. This application would be governed by Article 123 of the Limitation Act. 8. Article 123 of the Limitation Act, 1963 provides limitation of 30 days and limitation would begin to run from the date of the decree or where summons or notice was not duly served, when the applicant had knowledge of the decree. There is no dispute that notice or summons was duly served in this case. Limitation would begin to run from the date of the decree and it would be of 30 days. In other words, within 30 days application for setting aside the decree has to be made. Admittedly application has not been made within 30 days. Therefore, application filed by the petitioner to set aside the decree would be barred by limitation within the meaning of Article 123 of the Limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 1974 and 28th November 1974. The learned Judge also did not believe evidence of Ishvarbhai that he did not come to know on his return to India that experts decree has been made in all the three suits. On these observations, the learned Judge has rejected the applications of the petitioner. 12. What constitutes 'sufficient cause' within the meaning of Section 5 of the Limitation Act has been the subject matter of observation by various Courts. Very recently this position was examined threadbare by my learned brother M.P. Thakkar, J, in Karim Abdullaa v. Heirs of Deceased Bai Hoorbai Jama 16 Guj. L.R. 835. After exhaustively examining the ratio of the decision in Ramanial v. Rewa Coalfields [1962]2SCR762 and State of West Bengal v. The Administrator Howrah Municipality [1972]2SCR874a in both of which the Supreme Court in terms observed that the expression 'sufficient cause' employed in Section 5 of the Limitation Act is to be interpreted in a liberal manner so as to advance the cause of substantial Justice particularly when 1:0 negligence or inaction or want of bona fides is imputable to a party, the learned Judge further observed that examining the matter on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the last minute, which prevented the party from attending the Court or communicating his lawyer, it can still be said that there was some negligence in not making alternative arrangement to communicate with the lawyer. A very careful party attending to litigation, keeping an eye on all eventuality will have never to resort to Section 5 of the Limitation Act. Therefore, in such matters, there is bound to be some element of negligence and the question is whether penalty for that negligence must be such as to refuse the fundamental right of being heard. Refusal to set aside experts decree is tantamount to refusal to give any opportunity to the party to put forth his case and to be burdened with the decision adverse to it. I would, therefore, examine the matter from this standpoint. 13. Before however I examine the rival contentions in this case, I must dispose of one contention of Mr. Desai learned Advocate for the opponent. He pointed out very frankly that I am dealing with a revision application. That is a fact. He also pointed out that my jurisdiction is very limited. He is indisputably correct. The question really is whether the learned Judge who has dealt with the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who was in possession of such facts, which enabled Mr. Bhatt to obtain unconditional leave to defend. Mr. Bhatt would not have cared for the presence of Ishvarbhai and Mr. Gor would have effectively represented the company yet application for adjournment is given on the ground that party is out of Ahmedabad or on 25th November 1974 on the ground that the party did not turn up. Of course on 25th November 1974 original defendant No. 1 had not turned up. But if Mr. Gor was present suit could have very well proceeded. Mr. Bhatt would not be handicapped by the absence of Ishvarbhai. In this background, it is impossible to believe that Mr. Gor was present on 28th November 1974. 15. It was next contended that the register shows that Arvindbhai Patel continued to serve the petitioner company till he joined service with Gujarat University on 21st October 1974. In the mean time it is said that Arvindbhai Patel met someone on behalf of the plaintiff in Manekchowk locality and talk disclosed that the factory was working. Mr. Desai pointed out that along with this two missing pages of the register produced by the petitioner company to show that factory was closed would unmistakably show tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, therefore, delay ought to have been condoned in this case. 17. Question is whether we should put the petitioner to some terms. Undoubtedly, discretion is being exercised in favour of the petitioner. Petitioner has undoubtedly obtained an unconditional leave to defend but now that he has been guilty of default and lapse some condition ought to be imposed upon him. I even suggested to Mr. Desai whether the plaintiff would like to have full costs of the suit irrespective of the decision of t suit or I should direct the petitioner to deposit some amount in the Court. I left the choice to Mr. Desai and Mr. Desai's choice was for directing the petitioner to deposit some amount in each suit keeping in view the fact that petitioner had obtained unconditional leave to defend. I think petitioner should, be directed to deposit ₹ 2500 in each suit within four weeks from today and on condition being satisfied the experts decree made in each suit would be set aside and petitioner should be given an opportunity to appear and cross-examine the plaintiff's witnesses and to lead his own evidence in the matter. 18. Accordingly, these three revision applications are allowed and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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