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PETITIONER: GAUHATI UNIVERSITY

       Vs.

RESPONDENT: SHRI NIHARLAL BHATTACHARJEE

DATE OF JUDGMENT03/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1995 SCC  (6) 731        JT 1995 (8)   206  1995 SCALE  (6)398

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The  appellant-University  was  impleaded  as  a  party defendant to  the Title  Suit No.  61/90 on  the file of the Munsiff No.  [1], District  Karimganj in Assam. The suit was posted for  appearance on  May 29, 1990 but the summons were served on the appellant on May 28, 1990. He sent a letter to the Court seeking adjournment. Though the case was adjourned to July  19, 1990,  the adjourned  date was not intimated to the University. In consequence, the University did not enter appearance and the suit was ultimately decided ex-parte. The appellant filed  an application under Order 9 Rule 13 CPC to set aside  the ex parte decree. The Trial Court held that it was barred  by limitation  under Article 123 of the Schedule to the  Limitation Act,  1963. On  appeal,  the  High  Court confirmed the order. Thus, this appeal by special leave.      Column 3  envisages that  limitation would run from the date of  the decree,  or where the summons or notice was not duly served, when the applicant had knowledge of the decree. The question,  therefore, is  whether the appellant has been duly served.      Order 5 Rule 6 CPC provides that :      "6.  Fixing   day  for   appearance   of      defendant. -  The day for the appearance      of the  defendant shall  be  fixed  with      reference to the current business of the      Court,  the   current  business  of  the      Court, the  place of  residence  of  the      defendant and the time necessary for the      service of  the  summons;  and  the  day      shall  be  so  fixed  as  to  allow  the      defendant sufficient  time to enable him      to appear and answer on such day."      Order 9 Rule 6 speaks of due service.      "6.  Procedure   when   only   plaintiff

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    appears.  -   (1)  where  the  plaintiff      appears  and   the  defendant  does  not      appear when  the suit  is called  on for      hearing, then -      (a) When  summons duly served.- if it is      proved that the summons was duly served,      the Court  may make  an order  that  the      suit be heare exparte;      (b) When  summons not duly served. if it      is not  proved that the summons was duly      served, the  Court shall direct a second      summons to  be issued  and served on the      defendant;      (c) When  summons served  but not in due      time -  if it is proved that the summons      was served  on the defendant, but not in      sufficient time  to enable him to appear      and answer  on  the  day  fixed  in  the      summons, the  Court shall  postpone  the      hearing of  the suit  to a future day to      be fixed  by the Court, and shall direct      notice of  such day  to be  given to the      defendant."      It would  thus be  seen that when the summons is proved to be  duly served,  then the limitation begins to run under Article 123  from the  date of decree. But when the summons, though served,  but the  defendant had  not  had  due  time, clause (c) Rule 6 of Order 9, envisages further notice to be given, fixing  a future  date and  the  court  shall  direct notice of  such date  to be  given to the defendant. In this case, admittedly, no such step had been taken.      It is  seen  that  though  notice  was  served  on  the appellant on  May 28, 1990 and the date fixed for appearance was May 29, 1990, there was no time much less sufficient, to reach  the   court  for   appearance  on  that  date.  While adjourning the  suit to July 19, 1990. the said date was not communicated to the appellant, as envisaged in clause (c) of Rule 6  of Order  9. Thus,  the summons was not duly served. The limitation  began to  run only  when the  appellant  had knowledge of  the ex  parte decree.  From the  date  of  the knowledge, admittedly,  the application  was filed within 30 days. The  courts below had not adverted to this aspect from this perspective.      The appeal  is accordingly  allowed. The exparte decree is set aside. The matter is remitted to the Trial Court. The appellant shall  appear on December 4, 1995 before the Trial Court which  would take  such steps as are needed for filing the written statement etc. No costs.