Balbir Singh Chauhan v. Vijai Kumar Agarwal — 1986 DIGILAW 973 (ALL)

Judgment A.N. Dikshita, J. 1. AGGRIEVED by the judgment and order dated 4-8-1986 passed by the 8th Additional District Judge, Kanpur City, in Misc. Case No. 16/74 of 1986, by which an application under Order 9 Rule 13 CPC read with section 151 CPC filed by the applicant for setting aside the judgment and order dated 18-3-1986 decreeing the suit ex-parte has been rejected, this Civil Revision has been preferred by the applicant. 2. IN a narrow campus the facts are that the plaintiff opposite party filed a suit for the eviction and recovery of arrears of rent against the applicant in the court of District Judge, Kanpur City. The applicant after putting in his appearance filed an application on 18-2-1986 praying for granting a month's time to file a written statement which was allowed and time up to 18-3-1986 was granted to file the necessary written statement. To ascertain certain facts and relevant dates the record of the lower court was summoned. 3. ON 21-2-1986 the suit pending in the court of the District Judge, Kanpur City, was transferred to the Court of 8th Additional District Judge, Kanpur City, for disposal according to law. ON 18-3-1986 when the case was taken up by the transferee Court i. e. the 8th Additional District Judge, neither the applicant was present in the said court nor any written statement was filed. Naturally orders to proceed ex parte in the suit were passed for the absence of the applicant. ON that very date i. e 18-3-1986 the 8th Additional District Judge, Kanpur City, decreed the suit ex parte. The applicant came to know about the suit having been decreed ex parte against him by the 8th Additional District Judge on 19-4-1986 The applicant filed an application under Older 9 Rule 13 CPC on 23-4-1986 for setting aside the decree passed ex parte and for the restoration of the suit to its original number for disposal according to law. The applicant came to know about the suit having been decreed ex parte against him by the 8th Additional District Judge on 19-4-1986 The applicant filed an application under Older 9 Rule 13 CPC on 23-4-1986 for setting aside the decree passed ex parte and for the restoration of the suit to its original number for disposal according to law. The court below while disposing of the application under Order 9 Rule 13 CPC found that sufficient cause had been shown by the applicant for his non-appearance on 18-3-1986 for want of an information as regards the transfer of the case from the court of the District Judge, Kanpur City, to the court of the 8th Additional District Judge, Kanpur City as neither the counsel of the applicant nor the applicant himself was ever informed of such transfer. However, though accepting the reason as sufficient for the non-appearance of the applicant on 18-3-1986, the court below found that the application was not entertainable as the applicant had failed to comply with the provisions of section 17 of the Provincial Small Cause Courts Act and ultimately rejected the application filed by the applicant under Order 9 Rule 13 CPC for setting aside the decree passed ex parte by the order dated 4-8-1986. 4. THE rejection of such application has given rise to the instant Civil Revision. Learned counsel for the applicant, Sri O. P. Singh, has been heard Sri Sheo Mohan Dayal, Advocate, appeared for the opposite party and he, too, has been heard at some length. 5. OPPOSITE party, Vijai Kumar Agrawal, being the owner of premises 127/179, Agrawal Market Juhi Hamirpur Road, Kanpur, filed a suit against the applicant, Balbir Singh Chauhan for the eviction of the applicant and for the recovery of Rs. 6960.00/- besides mesne profits, water tax and costs of the suit etc. on 4-11-85. The suit was registered as SCC Suit No. 149 of 1985 on 4-11-1985 and summons were ordered to be issued against the applicant fixing 7-12-85 for the filing of the written statement. As summons were not received back 16-12-85 was ordered to be fixed for further orders and on that date it was found that the defendant had been served who may file written statement by 7-1-86. As summons were not received back 16-12-85 was ordered to be fixed for further orders and on that date it was found that the defendant had been served who may file written statement by 7-1-86. As the copy of the plaint was not available to the applicant on 7-1-86 the opposite party was ordered to supply the copy of the plaint within a week to the applicant and 18-2-86 was fixed for the filing of the written statement. On that date i. e. 18-2-1986 a prayer was made for a months' time to file written statement which was allowed and the written statement was directed to be filed by 18-3-1986. Mean-while, on 21-2-86 the case was transferred by the District Judge by his order dated 21-2-86 to the Court of the 8th Additional District Judge. The file was received in the Court of 8th Additional District Judge, on 27-2-86 on which date an order was passed for the filing of the written statement by 18-3-1986. Here it is necessary to mention that in the margin the names of the counsel, appearing for the parties, were noted showing the date as 18-3-86 apparently with a view to intimate the counsel. However, a perusal of the order-sheet clearly shows that none of the counsel, neither Sri Harihar Gaur appearing for the opposite party (plaintiff) nor Sri Mansoor Husain Rizvi, appearing for the applicant (defendant) was informed. On 18-3-1986 when the case was called, the counsel for the opposite party (plaintiff) was present and none was present on behalf of the applicant (defendant). In the absence of the applicant the suit was ordered to proceed exparte. On that very date, i. e. 18-3-86 the statement of the opposite party (plaintiff) was recorded and the suit in terms of the relief claimed was decreed ex parte by Sri J. S. P. Singh, 8th Additional District Judge, Kanpur. 6. IT has been contended by the learned counsel for the applicant that no information either to the applicant or to his counsel was ever given as regards the transfer of the suit. The court below, thus, illegally proceeded to dispose of the suit ex parte in the absence of the applicant. There is merit in this submission. Rule 89-A of the General Rules (Civil) meant for Civil Courts subordinate to High Court, which is reproduced herein below, provides for the transfer or withdrawal of cases. The court below, thus, illegally proceeded to dispose of the suit ex parte in the absence of the applicant. There is merit in this submission. Rule 89-A of the General Rules (Civil) meant for Civil Courts subordinate to High Court, which is reproduced herein below, provides for the transfer or withdrawal of cases. "89-A (1) When a case, i. e. a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular Court has been fixed, is transferred from that court to another, the former court shall record the order of transfer in the order-sheet and get it signed by counsel of the party or parties; if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted. (2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring court. (3) Where cases are transferred in a large number the court from which they are transferred shall, besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be posted on the notice board of the local bar association for information of the members of the bar and another copy to be posted on the notice board of the court for information of the general public. IT shall also be sent to the other court along with the records of the transferred cases, a copy of the list (or relevant extract of it), the other court shall post it on its own notice-board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being posted on the notice-board of the bar association. (4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer. (4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer. Sub-rule (1) of Rule 89-A lays down the manner and the procedure to be adopted in the event of the transfer of a case from one court to another. This case was fixed on 18-2-86. An order for the transfer of the case was made on 21-2-86 apparently in the absence of the parties. Though no doubt it was ordered that the case be taken up on 18-3-86, the date fixed by the transferring Court, it was incumbent on the transferring Court to have satisfied itself that the parties or their counsel have been informed and the presence of the parties noted on the date. IT was likewise necessary as provided under sub-rule (2) of Rule 89-A that a note to the effect that the party or parties have been informed of the transfer was also made. On the margin of the order-sheet the date 18-3-86 has been indicated and the names of the counsel of the parties have been shown clearly for a purpose to inform them. No information was ever sent. However, without satisfying itself even the transferee Court proceeded without recording its satisfaction that the parties or their counsel have been informed of such transfer. The Court instead of satisfying itself proceeded to dispose of the case ex parte recording the absence of the applicant (defendant). With all the haste the statement of the opposite party (plaintiff) was recorded and the judgment and order decreeing the suit ex parte was passed on that very date i. e. 18-3-86. IT is, thus, clear that the transferring Court as well as the transferee Court, both, ignored the provisions of Rule 89-A of General Rules (Civil) much to the prejudice of the applicant. The Court while decreeing the suit ex parte has, thus, committed an error which would be deemed to be an error of the Court and for which no party can be penalised. IT may not be out of place to mention here that in the present circumstances when the dearth of accommodations is enveloping the people tenancy naturally becomes a valuable right. Every person has to be given an opportunity to safeguard the attack on his tenancy. IT may not be out of place to mention here that in the present circumstances when the dearth of accommodations is enveloping the people tenancy naturally becomes a valuable right. Every person has to be given an opportunity to safeguard the attack on his tenancy. Prudence would require exercising caution while proceeding to dispose of a suit involving tenancy of a person and particularly at his back. The courts must assure themselves that adequate opportunity of contesting the eviction is afforded to a tenant and orders for the eviction of such tenant shall be resorted to only when it is found that the tenant is guilty of some laches or inaction or is deliberately trying to avoid participation in the proceeding. The court below while disposing of the application under Order 9, Rule 13 CPC has itself held that the applicant was not informed about the hearing of the case before the transferee Court on 18-3-1986 and had sufficiently made out a case for his non-appearance on the date fixed. It can further be added that the applicant cannot be held guilty of laches or inaction when the affidavit filed by the applicant in support of his application under Order 9, Rule 13 CPC as well as the affidavit filed in this Court that immediately on coming to know on 19-4-1986 about the transfer of the case an application was filed on 21-4-86 (20-4-86 being Sunday) and was registered on 23-4-86. When an error or mistake having been committed by the Court had been realised it would have been more appropriate to have undone the error and correct the mistake. While exercising inherent powers it was the duty of the Court to have set aside the ex-parte decree and recourse to the exercise of powers should have been achieved instead of maintaining that compliance to section 17 of the Provincial Small Cause Courts Act was necessary. 7. IN view of a singular fact that the counsel for the parties were not informed and in particular the counsel for the defendant about the transfer of the case from the court of the District Judge to the Court of 8th Additional District Judge, it cannot be deemed that the defendant was absent and the Court was not competent to proceed in disposing of the suit ex-parte in default of the applicant. A mistake or error had crept in on account of an act of the Court and it was incumbent on the Court to have rectified its mistake. Placed in such situation even an application under Order 9 Rule 13 CPC was not necessary and strictly such provisions were not applicable. On the facts of the case no application as provided was required nor the defendant was required to comply with the provisions of section 17 of the Act. Having been apprised of such facts and the notice being brought of such facts to the knowledge of the Court it ought to have itself set aside the ex-parte decree. The principle of " actus curiae neminem gravabit " i. e. an act of Court shall prejudice no one, is strictly applicable and fully attracted to the facts of the instant case. IN the case of Munnoo v. Smt. Champakali, 1979 ALJ 534 a similar view was taken by this Court, where it was held that where for the lack of the information to the defendant's counsel of the change in the date the suit proceeded, it cannot be deemed that the Court disposed of the suit on a date which was fixed for the hearing of the suit and consequently, the provisions of Order 9 Rule 13 CPC were not applicable. It was further held that in such circumstances the defendant-applicants were not required to comply with the provisions of section 17 of the Provincial Small Cause Courts Act. IN the case of Mohammad Ali v. Governor General in Council, AIR 1949 Alld. 36 this Court has held that where without any notice of the date of hearing to the respondents the appeal was dismissed, such dismissal of appeal would not be under Order 41 Rule 17. The provisions of Article 168 of the Limitation Act 1908 would not apply while claiming setting aside of such a dismissal order. A learned Judge of this Court held in the case of Mohammad Ali v. Governor General in Council (Supra) as under :- " It is always open to Court and ought to be open to the Court to rectify its error. This is what the Court has done. " IN the case of Bhagwati Prasad v. Ram Roop Tewari, AIR 1962 All. 622 the same principle has been laid by this Court. 8. This is what the Court has done. " IN the case of Bhagwati Prasad v. Ram Roop Tewari, AIR 1962 All. 622 the same principle has been laid by this Court. 8. THE dictum of law in the cases cited above is fully applicable to the facts of this case. It is clear that the suit was heard and decreed ex-parte in the absence of the applicant (defendant) as no notice was either given to the applicant nor to his counsel either by the transferring Court or by the transferee Court. THE absence of the applicant was neither deliberate nor can he be held to be negligent in persuing the case. THE absence of the defendant was caused on account of a mistake of the Court. Naturally the applicant cannot be allowed to suffer for such a mistake, error or omission of the Court and the applicant cannot be blamed for his non-appearance. THE application under Order 9 Rule 13 CPC ought not to have been rejected by the Court below. THE court below, thus, erred to exercise jurisdiction which otherwise vested in it by law in rejecting the application on the ground that the application under Order 9 Rule 13 CPC did not satisfy the requirements of section 17 of the Provincial Small Cause Courts Act. Learned counsel for the opposite party Sri S. M. Dayal has in a very straight forward manner conceded to the propositions of law but has mildly stuck to his submission that where the statute provides for express provisions for setting aside an ex-parte decree inherent power of the Court cannot be invoked. I do not find much substance in this submission in view of the fact that the Courts have always the power to rectify their mistakes or errors and a party cannot be penalised for the same. THE Court is fully competent while invoking its inherent power to set at naught the wrong done to a party on account of its mistakes. Learned counsel for the opposite party then placed reliance on the case of Lt. Commander, G. D. Mukerji v. Shiv Kumar Gupta, 1983 (2) ARC 315. This citation is of no avail to the opposite party as the facts in that case are at variance with the controversy involved in the present case. It was found in the case of Lt. Commander, G. D. Mukerji v. Shiv Kumar Gupta, 1983 (2) ARC 315. This citation is of no avail to the opposite party as the facts in that case are at variance with the controversy involved in the present case. It was found in the case of Lt. Commander, G. D. Mukerji v. Shiv Kumar Gupta (Supra) that the applicant was served but on account of certain preoccupations he could not attend to his case. There was no mistake of the Court in that case and as such it was necessary that while filing an application under Order 9 Rule 13 CPC compliance of section 17 has to be resorted to. This case is equally distinguishable from the facts as are revealing in the present case. No other point was pressed. This revision deserves to succeed in view of the foregoing discussions. 9. IN the result the revision is hereby allowed and the judgment and order dated 4-8-1986 decreeing the suit is set aside. The case is remanded back to the trial court for disposal in the light of the observations made above and according to law. The applicant will be entitled to his costs throughout. Revision allowed.