GAUHATI UNIVERSITY versus SHRI NIHARLAL BHATTACHARJEE

Citation: [1995] SUPP. 4 S.C.R. 764 · Decided: 02-11-1995 · Supreme Court of India · Bench: K. RAMASWAMY, B.L. HANSARIA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
GAUHA TI UNIVERSITY 
. 
,,...,~ 
v. 
SHRI NIHARLAL BHATTACHARJEE 
NOVEMBER 2, 1995 
B 
[K. RAMASWAMY AND B.L. HANSARIA, JJ.] 
• 
Code of Civil Procedure, 1908/Limitation Act, 1963: 
Or. IX, Rules 6, 13/Schedule, Article 123-Suit-Summom~Seivice 
c of-Summons se1ved on defendant but not in due time Suit decreed ex 
paite-Application for setting aside ex-pa1te decree rejected as burred by 
limitation-Held, summons not duly served as defendant did not have due 
time-Court to dir<ct notice of fwure date to defendant-In absence of such 
notice, limitation to begin from knowledge of cr parte decree. 
D 
The appellant-University was served on 28.5.1990 with summons for 
appearance as defendant in a suit before the Civil Court on 29.6.1990. The 
University sent a letter to the court seeking adjournment. The case was 
adjourned, but the University was not Intimated of the next date. The suit 
was decred crpa1te. The application under Or. IX Rule 13, C.P.C. filed by 
E the University for setting aside the ex pa1te decree was rejected as barred 
by limitation. The University, being unsuccessful in appeal before the High 
Court, filed in the present appeal by special leave. 
Allowing the appeal, setting aside the ex parte decree and remitting 
the matter to the Civil Court, this court. 
F 
HELD : 1. Limitation begins to run under Article 123 of the Schedule 
to the Limitation Act, 1963 from the date of decree if the summons Is proved 
to be duly served. When the summons, through served, but the defendant 
did not have due time, Clause (C) of Rule 6 of Order IX, C.P.C. envisages 
G further notice to be given to the defendant fixing a future date. [766-F] 
2. In the instant case, though notice was served on the def~ndant-
University on May 28, 1990, the date fixed for appearance being May 29, 
1990 there was no time much less sufficient to reach the Court for ap· 
pearance on that date. While adjourning the suit to July 19, 1990, the said 
H date was not communicated to the University. Thus, the summons was not 
764 
, . .,~ 
GAUHATI UNNERSITYv. N. BHATIACHARJEE 
765 
duly served. The limitation began to run only when the University bad A 
knowledge of the ex parte decree. From the date of the knowledge, admit· 
tedly, the application under Order IX, Rule 13 was filed within 30 days. 
[766-G-H, 767-A] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1246 of 
1995. 
B 
From the Judgment and Order dated 26.5.95 of the Gauhati High 
Court in C.R. No. 94/95. 
P.K. Goswami, Kailash Vasdev, Rajiv Mehta and Ms. Vanita Sahni 
for the Appellant. 
C 
B. D. Ahmed, 
Parijat Sinha, 
for Lawyers Associates for the 
Respondent. 
The following Order of the Court was delivered : 
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 
D 
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 E 
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 exparte. The appellant filed an application under Order 
9 Rule 13 CPC to set aside the ex parte decree. The Trial Court held that p 
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 G 
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 H 
A 
B 
c 
D 
E 
F 
G 
766 
SUPREME COURT 1<.EPOK!S [lYY)j !>lJt'l'. 45.C.R. 
appearance of the defendant shall be fixed with reference to the 
current business of the Court, the place of residence of the defen-
dant 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 appears, - (1) where the plaintiff 
appears and the defendant does not appear when the suit is called 
on for hearing, then -
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