Fuji International Ltd. vs Central Bank Of India And Ors.
1995 Latest Caselaw 496 Del

JUDGMENT

S.D. Pandit, J.

(1) This application is filed by defendant No.3 under Order Ix Rule 7, Cpc, to set aside the exparte order passed against him on 17.5.1991. The claim of defendant No.3 is resisted by the plaintiff by contending that the application is barred by the law of Limitation and there are latches on the part of the applicant and that there are no grounds for setting aside the ex parte order passed against him.

(2) In this application an interest question of law is raised and, therefore, it is necessary to give the details which have given rise to this application. The plaintiff Company had filed the present suit by presenting Along with the plaint an application under Rule 1 Order XXXIII, Civil Procedure Code on 27.9.89. It was the contention of the plaintiff that it was an indigent person and had no sufficient means to pay the Court Fees. On the said application notices were issued to the opponents and the said application was contested. After considering the material before him my learned predecessor was pleased to reject-the claim of the petitioner to allow him to sue as a pauper by passing the order dated 9.1.1991 as under: "It appears that the petitioner at the time of filing of the petition had no funds in its hands but the petitioner could definitely admittedly arrange funds by issuing fresh shares. So it is held that the petition under Order XXXIII is liable to be rejected as the petitioner could have arranged the funds after issuing fresh shares. Hence, this petition (IPA.23/89) is rejected. However, keeping in view the fact that the petitioner had no immediate funds at the time of filing of the petition for payment of court fee and had is sued fresh shares during the pendency of the petition and had received funds, it is a fit case for exercising discretion in favor of the petitioner for grant of time for payment of court fee. While dismissing the petition and the application, I grant time of two weeks for payment of requisite court fee. On payment of court fee, the petition shall he registered as a suit. The matter be listed for further proceedings before I he court in short malteds on 31st January, 1991.

(3) After the above order was passed it seems that before 31.1.1991 the petitioner had paid the necessary court fees and by the order dated 31.1.1991 the suit was registered. The order sheet shows that on that date only counsel for the plaintiff was present and neither the defendants nor any of their counsel was present. On subsequent hearing's it seems that defendants 1 & 2 appeared through their counsel. Mr. S.D. Sharma but the present applicant/defendant No.3 had not appeared before the Court after 9.1.1991. On 17.5.1991 the exparte order was passed against the defendant No.3, which reads as follows: "Defendant No.3 is absent. I form the record that counsel for defendant No.3 was appearing and dales were being taken for filing the written statement hut no written statement was Filed. Defendant No.3 is proceeded against exparte.

(4) The present application is for selling aside the above order.

(5) Learned counsel for the plaintiff has urged before me that the commencement of the suit in this case has taken place on 27.9.1989 when the application under Order XXXIII Rule 1. CPC.was presented and, therefore, the ex-parte order passed against defendant No.3 is proper and legal. He has further submitted that since the said order is passed on 17.5.1991 the present application is barred under the law of limitation. In support of that contention he has cited before me the case of Vijay Prala Singh Vs. Dakh Harun Nuth f AIR 1962 Sc 94. It is true that for the purpose of limitation and for the purpose of calculation of mense profits and other benefits which the plaintiff is entitled in case he happens to succeed in the suit brought under the provisions of Order XXXIII the dale of the suit would be the dale of the presentation of the petition for getting a declaration of pauperism. Therefore, the dale of the suit would be the date of the presentation of the petitioner under Rule 1 of Order XXXIII. But if the scheme of the Civil Procedure Code and the provisions of Order V and Order XXXIII arc read together then it would be quite clear that after the consideration of the claim of the petitioner to allow him to sue as a pauper the procedure for ordinary suits must take place. If after considering the material on record if the court happens to come to the conclusion that the plaintiff must be permitted to sue as a pauper then the Court must pass an order to register the plaint and number it and the suit summons must be issued to the defendants for settlement of the issues. In case the court finds that the plaintiff is not entitled to sue as a pauper then his claim must be rejected and he must be directed to pay the court fee and on payment of the court fee the suit is to be registered and numbered and then the suit summons must follow. I have already quoted above the order passed on 9.1.1991. Even in that order it has been clearly mentioned that on payment of the court fee the petition must be registered as suit. Therefore, after the payment of the court fee the suit ought to have been registered and then summons must be issued. In case the parly happens to be present before the Court it is open for the court to dispense with the suit summons. However, in case the parly is not present before the court on the date the suit is registered and numbered then provisions of Order V, Civil Procedure Code must come into play. Therefore, in this case when the present plaintiff was permitted to pay the Court Fee, on payment of such court fee the suit ought to have been registered and numbered and when, admittedly, the present applicant/ defendant No.3 was not present before the Court the suit summons ought to have been issued to him.

(6) The record clearly shows that after 9.1.1991, the dale on which the plaintiffs plea to sue as a pauper had been rejected, defendant No.3 had never appeared before the Court. Applicant has clearly averred that fact in his application in para 11 and that position is accepted by the plaintiff in his reply to this application. The order sheets on the file clearly show that after 9.1.1991 neither defendant No.3 nor his advocate was present before the Court and he was also not served with the suit summons. Therefore, in these circumstances, the passing of the ex-parte order against the present applicant/defendant No.3 on 17.5.1991 is improper and against the law. No doubt in the said order dated 17.5.1991 my learned predecessor has observed that the record shows that defendant No.3 was appearing and dates were taken for filing written statement but seems that those observations are made by my learned predecessor on account of bringing to his notice the appearance of defendant No.3 and his counsel during the hearing of the proceedings under Order XXXIII Rule 5, Civil Procedure Code. The order sheets clearly show that neither defendant No.3 nor his advocate had ever appeared before the Court after plaintiff's application to sue as pauper was dismissed. This position is not controverted by the plaintiff in his reply to the application. Therefore, in these circumstances, when there were no suit summons to defendant No.3 and when defendant No.3 was not served with the suit summons the passing of ex-parte order against him is improper and illegal and the same deserves to be quashed. I am supported in this view by the decision of the Division Bench of the Calcutta High Court in the case of Thakurdas Majhi Vs. Chand Majhi & Another [, wherein the following principles are laid down:- it is true that under 0.33, R.8, the proper application, on being grartted, is to be deemed to. be the plaint of the pauper suit, which is ultimately registered. It may be true also that, for purposes of limitation, and may he for certain other purposes too, - the suit must be deemed to have been filed, when the original pauper application was presented in court. The suit, however, actually comes into existence, when the pauper application as the plaint in the suit is registered. After the registration of the suit the defendant must be served under 0. 5 R.1 with the summons unless the case comes within the proviso of 0.5 R.l, which contemplates the case of a defendant who has entered appearance at the presentation of the plaint and who has admitted the plaintiff's claim. The case of the defendant who had appeared in the pauper application, cannot be brought under the proviso. The deeming provisions of 0.33 R. 8 should not be construed or applied in such a manner as to whittle down the mandatory provision of 0.5 R. 1 and to render it irrelevant and inapplicable to pauper suits for all practical purposes. Even if the defendant is taken to have entered appearance in the suit also by the filing of his vakalatnama in the pauper application, the proviso to 0.5 R.1, would not be satisfied, where the plaintiff had chaged his claim substantially by amendment at a later stage, and it could not therefore, be said that the defendant who had admitted the original claim also admitted the amended claim. The ex parte decree passed against defendant who had not been served must be set aside under 0.9 R.13.

(7) No doubt the date of the application under Order XXXIII Rule I is to be treated as the date of the suit and technically the suit commences from that date but that does not mean. that the suit has been registered and suit summons have been served on the defendant when notice of the application under Order XXXIII Rule 1 is served on the defendants in that application. If the provisions of Rules 8 and 11 of Order XXXIII arc carefully read, then it would be quite clear that after the rejection or grant of the application under Order XXXIII rule 1, the suit must be registered and numbered and then the procedure for hearing of the suit must follow. Consequently, it is necessary to issue the suit summons to the defendants. If the defendants happen to be suo moto present before the Court and if the service of summons is dispensed with by them then that dispensing by the Court could be accepted but in the absence of the defendants and without service of the suit summons the hearing of the suit could not proceed ex parte. The case cited by the learned counsel for the plaintiff, viz. Vijay Pratap Singh Vs. Dukh Haran Nalh [Supra] is not applicable to the facts of the present case. In that case the question was as to whether the application under Order I Rule 10 of the Code of Civil Procedure by one of the persons who is shown as defendant/ opponent could be rejected by holding that there was no suit and the Apex Court has held that the said application under Order I Rule 10, ought to have been considered by the Court on merits as to whether the defendant was to he transposed as a plaintiff and then ought to have gone into the question as to whether the plaintiff ought to have been allowed to sue as a pauper. Thus, the said case has no bearing on the facts before me.

(8) As the applicant/defendant was not served with the suit summons the limitation for filing an application for setting aside the ex-parte order will begin from the date he got the knowledge. The applicant has stated that he got the knowledge within 30 days prior to the date of filing of the application and there is nothing on record to disbelieve the said claim. As the order of proceeding ex-parte against the present applicant/defendant No.3 was improper and illegal the limitation will not run against him from the date of the order . Thus, I am unable to hold that the application is barred by the law of limitation.

(9) Thus, I allow the application. The ex-parte order passed against the applicant/defendant No.3 on 17.5.1991 is set aside. The applicant/defendant No.3 is directed to File the written statement within four weeks from today. Replication, if any. to be Filed within two weeks thereafter. As the matter is already fixed for trial after framing of issues I order that the matter be placed before the Court on 25.8.95 for re-casting of issues in view of the written statement and replication to be Filed by defendant No.3 and plaintiff respectively.