FAO No.2578 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** FAO No.2578 of 2009 (O&M) DATE OF DECISION: 10.03.2010 **** Neelam @ Neelam Sharda . . . . Petitioner VS. Smt. Primla Gautam . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Gorakh Nath, Advocate for the petitioner. Mr.Deepak Kapoor, Advocate for the respondent. **** RAKESH KUMAR JAIN J. (ORAL) This appeal is directed against order dated 6.3.2009 whereby an application filed by defendant/appellant under Order 41 Rule 21 of the Code of Civil Procedure, 1908 (for short ‘CPC’), for rehearing the appeal by setting aside the judgment dated 6.6.2008, has been dismissed. In brief, the facts of the case are that plaintiff filed a suit for declaration with consequential relief of permanent and mandatory injunction, which was dismissed by the learned Trial Court vide its judgment and decree dated 9.5.2007. The plaintiff preferred first appeal under Section 96 of the CPC in which the appellant was not personally served. She was thereafter served by way of substituted service by publication of the notice in the daily newspaper ‘Chardikala’ and was summoned for 16.4.2008. The learned First Appellate Court FAO No.2578 of 2009 (O&M) -2- recorded an interlocutory order on 16.4.2008 that the publication issued against the respondent has been received back duly published but since no one has put in appearance on her behalf till 4.00 PM, therefore, she was proceeded against ex parte. Thereafter, the appeal was allowed ex parte vide judgment and decree dated 6.6.2008. According to the case of the appellant, certified copy was applied on 7.6.2008, which was received on 13.6.2008 and the application under Order 41 Rule 21 CPC was filed on 14.6.2008. It is submitted that according to Article 123 of the Limitation Act, 1963 (for short ‘the Act’), application for setting aside the ex parte order for the purpose of rehearing of the appeal, which has been decided ex parte, the limitation is 30 days and for that purpose as per the explanation appended thereon, the substituted service published under Order 5 Rule 20 CPC shall not be deemed to be due service. It is submitted that the learned Court below while rejecting the application has taken the limitation from the date when the appellant was proceeded ex parte i.e. from 16.4.2008 whereas the limitation should have been taken from the date when the ex parte decree was passed. On the contrary, learned counsel for the respondent has submitted that the appellant has played hide and seek with the Court as earlier when the notice in person was served it was handed over to the appellant on 2.1.2008 and after reading contents of the summons she orally told that she is the sister of the appellant and refused to take the summon though she herself was there and was identified by the plaintiff. It is also submitted that after the ex parte order was passed on 16.4.2008, the appellant did not appear despite substituted service effected upon her and there was no other way for the Court but to decide the appeal ex parte against the appellant. It is also FAO No.2578 of 2009 (O&M) -3- submitted that limitation has to be counted from the date when appellant has been proceeded against ex parte and not from the date when the ex parte decree was passed. I have heard both the learned counsel for the parties and perused the available record. Before adverting to their rival contentions, it would be relevant to refer to the provisions of law i.e. Article 123 of the Limitation Act, 1963: - Description of application Period of limitatio n Time from which period begins to run To set aside a decree passed ex parte or to re-hear an appeal decreed or heard ex parte. Thirty days Explanation :- For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service. The date of the decree or where the summons or notice was not duly serve, when the applicant had knowledge of the decree. So far as the facts of the case are concerned, the appellant has not been proceeded against ex parte on 2.1.2008 rather she has been proceeded against ex parte in terms of the substituted service on FAO No.2578 of 2009 (O&M) -4- 16.4.2008. Now the question involved in this case is “as to whether the service by way of substituted service shall be deemed to be due service of the appellant for calculation of the period of limitation under Article 123 of the Act?” If it is not to be considered then, what should be the date from which the limitation should start running? The explanation appended to Schedule 123 attached to the Act clearly reads that: “For the purpose of this article, substituted service under Rule 20 of Order V of the Code of Civil Procedure, 1908 (5 of 1908) shall not be deemed to be due service” Meaning thereby, if that service is not to be considered to be due service as provided by the legislature, the appellant cannot be considered to have been proceeded against ex parte. If the appellant is not considered to have been proceeded against ex parte but has not joined the appeal for the purpose of contesting the same, the limitation has to be considered form the date of the impugned order. The appellant has admittedly filed an application for obtaining certified copy of order dated 7.6.2008 which was received on 13.6.2008 and the application under Order 41 Rule 21 CPC was filed on 14.6.2008, which is, in my opinion, within limitation. Thus, the view taken by the Court below for dismissing the application on the ground that the limitation should be taken from the date when the appellant was proceeded against ex parte is incorrect. That period has to be excluded in view of the explanation appended to Article 123 of the Act and for that purposes the limitation has to be taken from the date of the order. FAO No.2578 of 2009 (O&M) -5- In view of the above, order dated 6.3.2009 is set aside and as such the present appeal is allowed. Application under Order 41 Rule 21 CPC is held to be within limitation and the learned First appellate Court is directed to rehear the case on merits and decide the same in accordance with law. Parties are directed to appear before the First Appellate Court on 30.3.2010. (RAKESH KUMAR JAIN) March 10, 2010 JUDGE vivek