LexBOGIDHOLA TEA AND TRADING CO. LTD. AND ANR. versus HIRA LAL SOMANI
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,• BOGIDHOLA TEA AND TRADING CO. LTD. AND ANR. A v. HIRA LAL SOMANI DECEMBER 7, 2007 [S.B. SINHA AND G.S. SINGHVI, JJ.] B Code of Civil Procedure, I 908-0. 8 r. I 0-Jnvoking of-Suit- Non-appearance of defendant despite service of summons-Prayer for decree under 0.8 r. I 0-Plaintiff declined to examine any witness-Ex- C parte decree-Application for setting aside ex-pa rte decree on the ground that suit was barred by limitation-Dismissed by Courts below-Correctness of-Held: Not correct-It was duty of Court to consider if suit was barred by limitation even when no such defence raised-Jn case suit barred by limitation, Court had no jurisdiction to D pass decree-Even otherwise, plaintiff was bound to prove his case- Trial Court erred in invoking 0.8 r.10-Ex parte decree set aside- Limitation Act, 1963-s.3. The parties were on business terms. The appellants were to E supply 'made tea' for the year 1984 and 1985 to the respondent. They supplied lesser quantity of 'made tea' for both years. Respondent filed a suit towards the price of the remaining amount for terminal tea supply. Despite service of summons, the appellants did not appear. The respondent made a prayer before the trial court to pass decree under 0.8 r.10 CPC. He declined to examine any witness. F The trial court passed ex-parte decree stating that prima facie case was made out in favour of the respondent-plaintiff. An application was filed for execution of decree in 1997. Summons in the said execution case were served upon the appellants. The execution proceeding were stayed in July, 2000. In September, 2000, the G appellants filed an application under 0.9 r.13, CPC for setting aside the said ex-parte decree. The said application was dismissed on the ground that the appellants could not satisfactorily explain the cause 1153 H 1154 SUPREME COURT REPORTS [2007] 12 S.C.R. A for delay in filing the said application, as also in view of Article 123 of the Schedule appended to the Limitation Act, 1923. The revision thereagainst was also dismissed. Liberty, however, was granted to the appellants to prefer an appeal against the original decree. An appeal thereafter was filed by the appellants along with an B application for condonation of delay. The High Court refused to condone the delay and consequently dismissed the appeal. In appeal to this Court, the appellants contended that it was obligatory on the part of the trial judge to satisfy itself about the bona fide of the claim of the plaintiff-respondent and; that having regard C to the fact that the last advance was purported to have been made on 19.6.1985, the suit which was filed on 2.1.1989 was barred by limitation. D Disposing of the appeal, the Court HELD: 1. Ordinarily, this Court would not interfere in 8UCh a matter. However, it appears to be a gross case. Appellants had shown that the ex-parte decree ex1acie suffers from non-application of mind. Had the Judge applied its mind even to the averments made in the plaint, he should have asked himself the question as to whether in E absence of any acknowledgment in writing, as a result whereof the period oflimitation would start running afresh, the suit could have been decreed. S.3 of the Limitation Act, 1963 mandates that a Court would not exercise its jurisdiction for any reliefin favour of a party if the same is found to be barred by limitation. Although such a F defence was not raised, the statute obligated upon the Court oflaw to consider as to whether a suit is barred by limitation or not. In the event it was found that the suit was barred by limitation, the Court had no jurisdiction to pass a decree. It was, therefore, essential for the trial judge to pose unto itself the right question, particularly when G without adduction of oral evidence the pleading raised in the plaint could not be said to have been established. It was, therefore, not a case where the Court could have invoked the provisions of0.8 r.10 CPC. Even otherwise, the suit was set down for ex-parte hearing. The trial judge stated that only a prima1acie case was found out from H the plaint and other documents which were not sufficient for passing BOGIDHOLA TEAANDTRADINGCO.LTD. v. HIRALAL 1155 SOMANI [SINHA, J.] a decree as therefor the plaintiff was bound to prove his case. A [Para 11] [1158-F, G; 1159-A, B, CJ 2. Having regard to the peculiar facts and circumstances of this case, it is a fit case where the High Court
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