Saturday 28 April 2012

order passed without receipt of notice by other side is illegal

 The direction to issue a notice, however, is not equivalent either to the issue of the notice or of giving of the notice to the parties concerned
Allahabad High Court
Mohammad Tahsin Khan vs Seth Basant Rai And Ors. on 11 March, 1930
Equivalent citations: AIR 1930 All 477
Author: Sen
Sen, J.
1. This and the connected application for revision hang and fall together. Seth Jaswant Rai had instituted a suit against Nawabzada Mohammad Ejaz Ali Khan and others. This suit was referred to the arbitration of Khan Bahadur Syed Abdul Hasan, a retired Judge of these provinces. He pronounced an award in favour of the plaintiff and the said award was filed in Court on 13th July 1928.
2. Article 158, Lim. Act, provides that an application to set aside an award should bo made within ten days from the time
when the award is filed in Court and notice of the filing has been given to the parties.
3. On 13th July 1928 the learned Subordinate Judge directed that notice of the award should be given to the opposite party. The direction to issue a notice, however, is not equivalent either to the issue of the notice or of giving of the notice to the parties concerned. A registered post card intimating that an award has been filed on 13th July 1928 appears to have been received by Nawabzada Mohammad Ejaz Ali Khan and his pleader on 16th July 1928. The pleader for Mohammad Tahsin Ali Khan signed the order-sheet on 14th July 1928 in acknowledgment of the fact that he had received a notice that the award had been filed on 13th July 1928.
4. Certain objections were filed to the award on 24th July 1928. These objections were not heard and determined on the merits. The learned Subordinate Judge threw out the objections upon the ground that they were barred under Article 158, Lim. Act. He gave a decree in accordance with the award.
5. A preliminary objection was raised by the learned advocate for Seth Jaswant Rai that no application for revision lay to this Court. His objection was that the Subordinate Judge was competent to go into the question as to whether or not the objections preferred by the defendants were within or beyond limitation. Even on the assumption that the Subordinate Judge decided the point of limitation erroneously, his order in passing a decree in accordance with the award was not open to revision by this Court.
6. Ex facie the objections dated 24th July 1928 were within time. The objections wore filed within ten days of the giving of the notice. We pronounce no opinion upon the point whether the word "given" in Col. 3, him. Act, Article 158, is to be interpreted as actually received by the party for whom the notice was intended or is to bo treated merely as the issue of the notice. On the facts, as disclosed by the record, no notice was given to the defendants on 18th July 1928, No notice was issued to the defendants on that date. The Court had only directed the notice to issue. Under these circumstances the objections filed by the defendants on 24th July 1928 were clearly within time.
7. The Court cannot be permitted to deprive itself of the jurisdiction which belongs to lit by fastening an erroneous construction upon the words of the statute. This is not a case of a wrong assumption or non-exercise of jurisdiction but it appears to us clearly a case in which the learned Subordinate Judge having jurisdiction to entertain the application has refused to look at it upon an erroneous assumption which was not warranted by facts that on the date when the application was preferred it was beyond limitation. Under these circumstances the application for revision filed by the defendants in this Court amply satisfies the conditions of Section 1.1.5, Civil P.C. We accordingly allow this application, set aside the order of the Court below and send back the case to that Court for trial of the objections on the merits. Costs here and heretofore shall abide the result.
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