Limitation must be considered suo motu; ex parte decree could not stand without proof where limitation was apparent.
Limitation must be examined by the court on its own motion under Section 3 of the Limitation Act, 1963, and the Trial Court erred in overlooking an apparent limitation issue on the face of the plaint. The delay in challenging the ex parte decree ought to have been condoned because refusing to do so would have preserved a decree vulnerable for non-consideration of limitation. An ex parte decree could not be sustained where the plaint itself disclosed a possible bar of limitation, there was no written acknowledgment extending time, and the plaintiff had not adduced oral evidence; Order VIII Rule 10 CPC was not justified on a mere prima facie view.
Issues: (i) Whether the delay in filing the appeal against the ex parte decree ought to have been condoned in the facts of the case. (ii) Whether the ex parte decree could be sustained when the plaint itself disclosed a possible bar of limitation and the plaintiff had not adduced oral evidence.
Issue (i): Whether the delay in filing the appeal against the ex parte decree ought to have been condoned in the facts of the case.
Analysis: The Court found that the decree under challenge suffered from apparent non-application of mind because the Trial Court had not examined whether the suit was barred by limitation, even though Section 3 of the Limitation Act, 1963 required the Court to consider limitation on its own. In the peculiar facts, refusal to condone delay would have perpetuated a decree that was itself vulnerable on the face of the record.
Conclusion: The delay ought to have been condoned.
Issue (ii): Whether the ex parte decree could be sustained when the plaint itself disclosed a possible bar of limitation and the plaintiff had not adduced oral evidence.
Analysis: The Court held that the Trial Court could not have proceeded to decree the suit merely on the basis of the plaint and documents when the pleadings themselves raised a question of limitation and there was no acknowledgment in writing extending time. The Court also held that the plaintiff was required to prove the case and that the situation did not justify invocation of Order VIII Rule 10 of the Code of Civil Procedure, 1908 for passing a decree ex parte on a prima facie view alone.
Conclusion: The ex parte decree could not be sustained.
Final Conclusion: The impugned High Court order and the ex parte decree were set aside, and the matter was left to proceed before the Trial Court with consequential directions.
Ratio Decidendi: A court must consider limitation on its own motion under Section 3 of the Limitation Act, 1963, and an ex parte decree cannot be founded merely on a prima facie view of the plaint where the bar of limitation is apparent and the plaintiff has not proved the claim.
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AI Drafter ✕
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