ORDER A.N. Dikshita, J. - This revision has been preferred against the judgment and order dated 9-1-1989 passed by Sri V.K. Khare IX R.P. Singh, Standing Counsel, for Additional District Judge, Kanpur in Miscellaneous Case No. 65/74 of 1988 tit{ed as State of U.P. and another v. Sunil Kumar Bajpai and another. 2. The fact encompassing in the controversy are that the opposite parties Sunil Kumar Bajpai and Akhil Kumar Bajpai both sons of late Sri Kailash Nath Bajpai, hereinafter called `opposite parties' filed a suit in the court of District Judge, Kanpur against the State of U.P. through Collector, Kanpur and Additional District Magistrate (Rationing), Kanpur, hereinafter called `applicants' claiming a decree of ejectment from the suit premises on the ground of default and also claiming damages at the rate of Rs. 645/- from 20-10-1986 till the date of eviction of the applicants besides pendente lite and future mesne profits and water tax etc. in the court of District Judge, Kanpur which was registered as Small Cause Court Suit No. 65 of 1987. 3. On 14-5-1987 District Judge after report of the Munsarim ordered for issue of summons fixing 10-7-1987 for filing of the written statement. On 10-7-1987 District Judge found the defendants to have been served personally and in view of the fact that the written statement had been filed ordered that the suit be put up for disposal on 19-8-1987. On 19-8-1987 as Presiding Officer (District Judge) was on leave, 25-8-1987 was fixed for the hearing. Again on 25-8-1987 plaintiffs were represented but none was present for the defendant nor any written statement was fixed and as such the District Judge ordered the case to proceed ex parte fixing 9-9-1987 for ex parte hearing. 4. On 9-9-1987 District Judge ordered the case to be transferred to the court of IXth Additional District Judge. and fixed 11-9-1987 for the presence of the parties. On 10-9-1989 the records were received by IXth Additional District Judge. It was directed to be registered and put up on the date fixed. 5. Incidentally it maybe mentioned here that there are no signature of the IXth Additional District Judge on the order sheet. and fixed 11-9-1987 for the presence of the parties. On 10-9-1989 the records were received by IXth Additional District Judge. It was directed to be registered and put up on the date fixed. 5. Incidentally it maybe mentioned here that there are no signature of the IXth Additional District Judge on the order sheet. It may not be out of place to mention here that once there was no signature of the IXth Additional District Judge on the order sheet dated 10-9-1987 it was wholly illegal to have ordered the case to be put up on 11-9-1987. 6. On 11-9-1987 the case was ordered to be listed for ex parte hearing on 15-9-1987. 7. On 15-9-1987 plaintiff was present when the case was called and affidavit along with copy of some judgment was filed on that date (15-9-1987) and the case was ordered to be listed for arguments on 7-10-1987. 8. In view of strike on 7-10-1987 the case was put on 16-10-1987 when it was ordered to be listed on 19-11-1987. On 19-11-1987 the case was called and the arguments were heard and 21-11-1987 was fixed for judgment. The suit was decreed ex parte by IXth Additional District Judge on 21-11-1987. 9. Incidentally it maybe mentioned here that none was examined on behalf of the opposite parties (plaintiffs) and it was merely on the basis of the affidavit that the suit was decreed ex parte. 10. The applicants could not know about the ex parte decree having been passed against them on 21-11-1987. The applicants came to know about the suit having been decreed on 19-11-1988 which information was learnt from Police Station, Rail Bazar, Kanpur that the decree is being executed. 11. On 21-11-1988 an urgent application for inspection of the case file was filed through District Government Counsel (Civil) but the inspection could not be done till 24-11-1988. After inspection of the file on 24-11-1988 an application under O. IX, R. 13 read with Section 151 of the Code of Civil Procedure was filed on 25-11-1988. This application was supported by an affidavit of one K.K. Misra, Area Rationing Officer, Cantonment Area, Kanpur who was posted there since May, 1987. 12. In order to avoid any complication an application under S. 5 of Limitation Act was also filed on 25-11-1988 supported by an affidavit of said K.K. Misra. 13. This application was supported by an affidavit of one K.K. Misra, Area Rationing Officer, Cantonment Area, Kanpur who was posted there since May, 1987. 12. In order to avoid any complication an application under S. 5 of Limitation Act was also filed on 25-11-1988 supported by an affidavit of said K.K. Misra. 13. It was set out in the application under O. IX, R. 13 read with Section 151 of the Code of Civil Procedure as well as in the application under Section 5 of the Limitation Act that the applicants came to know about the suit having been decreed ex parte on 19-11-1988 when it was learnt by the applicant from the Police Station, Rail Bazar, that the decree is being executed. Astay application was also filed on 25-11-1988 for staying further proceedings in Execution Case No. 3 of 1988 (Sunil Kumar Bajpai and another v. State of U.P. and another) till the disposal of the above case. This application for stay was was also supported by an affidavit of said K.K. Misra. Objections were filed on behalf of the opposite parties against the said application. However, no counter affidavit was filed against the said application which was supported by an affidavit of K.K. Misra. 14. Objections against the application under Section 5 of the Limitation Act filed by the opposite parties was filed along with the counter affidavit of Sunil Kumar Bajpai. 15. It is again significant that no objection or counter-affidavit were filed on behalf of the opposite parties against the application filed by the applicants under O. IX, R. 13 read with Section 151 of the Code of Civil Procedure. 16. Trial Court after hearing the parties rejected the application under Section 5 of the Limitation Act and in view of the application under Section 5 of the Limitation Act having been rejected application under O. IX, R. 13 read with S. 151 of the Code of Civil Procedure was found beyond time and was accordingly rejected vide order dated 9-1-1989. 17. Hence this revision. 18. Heard the learned counsel for the parties. Learned Standing Counsel has submitted that the applicants are tenants of the suit accommodation on a monthly rent of Rs. 150/- for few decades. 17. Hence this revision. 18. Heard the learned counsel for the parties. Learned Standing Counsel has submitted that the applicants are tenants of the suit accommodation on a monthly rent of Rs. 150/- for few decades. Though not very material to the controversy but it is relevant that one Bahul Lai Bajpai was owner of the premises No. 138 Faithful Ganj, Kanpur Cantonment who died in year of 1949 leaving behind his only son Bishambhar Nath Bajpai who also expired in 1965 leaving Sri Kailash Nath Bajpai, father of the opposite parties. It is emerging from the perusal of para 3 of the plaint that late Sri Babu Lal Bajpai, later Biswambhar Nath Bajpai, and Kailash Nath Bajpai fell in bad habits and taking undue advantage one Smt. Khurshid Jehan Begum and her husband prevailed on Bishambhar Nath Bajpai to execute a sale deed of the premises in question. The said sale deed was executed on 25-9-1965 in favour of Smt. Khurshid Jehan Begum. However, opposite parties and his two deceased brothers late Anil Kumar Bajpai and Nikhil Kumar Bajpai having share in the impugned premises filed a suit No. 56 of 1968 in the court of land Additional Civil Judge for the cancellation of the sale deed. The 2nd Additional Civil Judge, Kanpur decreed the suit (No. 56 of 1968) whereupon Smt. Khurshid Jehan Begurn referred first Appeal No. 30 of 1971 to this Court against the judgment and decreed dated 23-12-1970. The appeal failed and decree of the trial Court was maintained by the judgment dated 7-8-1986 of this Court. 19. The above facts have been receipted as there was a fierce dispute between the opposite parties and Smt. Khurshid Jehan Begum. This controversy apparently arose as to whom rent is payable. Presently the controversy regarding payment of rent is also not material. Learned Standing counsel Sri G.L. Tripati has very strongly urged that there was no sufficient service of summonses on the opposite parties. To obviate any chances miscarriage of justice record of the trial court was summoned. Learned Standing Counsel has submitted that in the suit State of U.P. through Collector Kanpur as well as, Additional District Magistrate (Rationing) Kanpur were impleaded as defendants. It is not disputed that the office of the Area Rationing Officer is located in the premises in dispute. To obviate any chances miscarriage of justice record of the trial court was summoned. Learned Standing Counsel has submitted that in the suit State of U.P. through Collector Kanpur as well as, Additional District Magistrate (Rationing) Kanpur were impleaded as defendants. It is not disputed that the office of the Area Rationing Officer is located in the premises in dispute. On a perusal of the summons it is manifest that the summons addressed to Additional District Magistrate (Rationing)84 served on some clerk of the office of the District Magistrate on 22-5-1987. On the bad of the other summons some signatures are available showing summonses to have been received. Learned Standing Counsel has thus submitted that it is not revealing as to whom summonses were served. Neither the name of the person or clerk of whose signatures were received is shown, nor seal of the District Magistrate has been affixed on the summonses. I found merit in the submission that this was not proper service of the summons on the applicants. Once the Additional District Magistrate (Rationing) was impleaded as Defendant No. 2 it was incumbent that the service of the summons must have been affixed on him but that was not done. Similarly on the summons addressed to State of U.P. through Collector Kanpur some signatures are apparent but with what authority such summons were received and by which person has not been shown nor there is any material to indicate that the Collector had directed the summons to be received by such person. Thus it is apparent that there was no proper service of the summons. 20. Learned Standing Counsel has submitted that even if the District Judge was of the view that there was sufficient service of the summons on the defendants (applicants) then it was mandatory requirement as postulated under O. XXVII, R. 4 to have issued process to the District Government Counsel before ordering the case to proceed ex parte. It is enshrined under O. XXVII, R. 4 that the Government pleader in any court shall be the agent-of the Government for the purposes of receiving process against the Government issued by such court. It is enshrined under O. XXVII, R. 4 that the Government pleader in any court shall be the agent-of the Government for the purposes of receiving process against the Government issued by such court. The thrust of the submission is that in case summones were issued to the defendants it was incumbent on the District Judge on coming to the conclusion that the summons have been served to have issued process to the Government pleader (District Government Counsel). 21. Order III, R. 2 provides as to who would be the recognised agent. 22. Order V, Rule 12 postulates that wherever it is practicable service shall be made on the defendants in person unless he has an agent empowered to accept service. It, was thus incumbent on the District Judge before ordering for the case to proceed ex parte to have issued process to the Government pleader (District Government Counsel) but that was not done which has vitiated proceeding and has ended in, miscarriage of justice. 23. Admittedly, District judge, vide order dated 10-9-1987 transferred the case to the court of IXth Additional District Judge for disposal according to law. A perusal of the order sheet clearly indicates that no notice whatsoever was issued to the opposite parties by the transferee court. Applicants came to know about the suit having been decreed ex parte on 19-11-1988 that the suit has been decreed ex parte on 21-11-1987. Such an information was learnt from the Police Station Rail Bazar as stated above. Without any loss of time an applicants under O. IX. R. l3 read with S. 151 of the Code of Civil Procedure and to obviate any chance of any controversy an application under Section 5 of Limitation Act was also filed. It has been contended by the learned Standing Counsel that as no information either to the applicants or to their counsel (District Government Counsel) was ever given as regards transfer of the suit, court below thus illegally proceeded to dispose of the suit ex parte in the absence of the applicants. I find abundant merits in the submission. It has been contended by the learned Standing Counsel that as no information either to the applicants or to their counsel (District Government Counsel) was ever given as regards transfer of the suit, court below thus illegally proceeded to dispose of the suit ex parte in the absence of the applicants. I find abundant merits in the submission. Rule 89-A of the General Rules (Civil) meant for Civil Courts subordinate to High Court which is reproduced herein below provide 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 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 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) Whether 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 case 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 (for 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. 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." Such a view was taken by me in the case of Balbir Singh Chauhan v. Vijai Kumar Agarwal, (1987) 1 All Rent Cas 336 (2) . 24. Learend Standing Counsel has further submitted that there are no laches or inaction or deliberate attempt to avoid participation in the proceedings. As would be manifest from a salutary fact that immediately on coming to know on 19-11-1988 steps were taken and application under O. IX, R. 13 read with Section 151 of the Code of Civil Procedure along with application under Section 5 of the Limitation Act was filed. In view of the similar facts when the learned counsel for the applicant were not informed about the transfer of the case from the court of District Judge to the court of IXth Additional District Judge it cannot be deemed that the applicants (defendant) were absent and the court was not competent to proceed in disposing of the suit ex parte in default of the applicants. 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 the mistake. Even an application under O. IX, R. 13, C.P.C. was not necessary as such provisions were strictly not applicable. The court should have exercised abundant caution so as to comply with requirement enjoined under R. 89-A of General Rules (Civil) meant for Civil Courts subordinate to High Court. The principle of lactus curiae neminem gravabit i.e. an act of the Court shall prejudice no one is strictly and wholly applicable and fully attracted to the facts of the instant case. The principle of lactus curiae neminem gravabit i.e. an act of the Court shall prejudice no one is strictly and wholly applicable and fully attracted to the facts of the instant case. In the case of Munnoo v. Smt. Chapakali, 1979 All LJ 534 a similar view was taken by the 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 hearing of the suit and consequently provisions of O. IX, R. l3 were not applicable. In the case of Mohammed Ali v. Governor General in Council, AIR 1949 All 36 it was held that where without any notice of the date of hearing to the respondents appeal was dismissed such dismissal would not be under O. XLI, R. 17, C.P.C. It was also held that Article 168 of the Limitation Act 1908 would not apply while claiming setting aside of such a dismissal order. It was held as under :- "It is always open to Court and ought to be open to the Court to rectify its error." Same principle has been laid and approved by the Court in the case of Bhagwati Prasad v. Ram Roop Tewari, AIR 1962 All 622 . 25. The dictum of law in the cases cited above is fully applicable to the facts of the instant case. It is apparent that the suit was heard and decreed ex parte in absence of the applicants (defendants). As no notice was either given to the applicants nor to their counsel either by transferring court or by transferee court, the absence of the applicants was thus neither deliberate nor can it be held that they were negligent in pursuing the case.) The absence of the applicants was caused on account of mistake of the court. Naturally, applicants cannot be allowed to suffer for such a mistake, error or omission of the Court and the applicants cannot be blamed for their non-appearance. Application under O. IX, R. 13, C.P.C. read with Section 151 filed by the applicants was not liable to be rejected by the court below. 26. Naturally, applicants cannot be allowed to suffer for such a mistake, error or omission of the Court and the applicants cannot be blamed for their non-appearance. Application under O. IX, R. 13, C.P.C. read with Section 151 filed by the applicants was not liable to be rejected by the court below. 26. Learned counsel for the applicants then submitted that even though no delay was occasioned in the instant case but to obviate any prejudice to the applicants an application under Section 5 of the Limitation Act was filed. Reliance has been claimed in a case of Smt. Laxmi Devi v. U.P. State, (1987) 2 All Rent Cas 77 : AIR 1988 All 133 . In this case I had taken a view that the delay of 205 days was occasioned and was condoned by the trial Court. I was satisfied about the sufficiency of the reason and such discretion did not require an interference. Instantly I am of the view that the date of knowledge of the applicants is 19-11-1988 and the application was filed immediately within a week with all the promptitude. However, if period is to be taken from the date of judgment and order 21-11-1987 even then dictum as laid down in the case of Smt. Laxmi Devi v. U.P. State and another would be fully attracted. The conclusion arrived at in the case of Smt. Laxmi Devi v. U.P. State, supra based under the guidelines laid down by Supreme Court in Ram Lal v. Rewa Coalfields Ltd., AIR 1962 SC 361 . It was held as under (at pp. 363-65 off AIR) : "In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for king an appeal gives rise to a right in favour of decree holder to treat the decree as ding between the parties. In other words en the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat as beyond challenge, and this legal let right which has accrued to the decree holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for executing delay is shown discretion is given to the court to condone delay and admit the appeal. The other consideration which cannot be ignored is that if sufficient cause for executing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done the application for condoning the delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay, this aspect of the matter naturally introduced the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the times available to it.". 27. In view of the above revision is allowed and order dated 9-1-1989 is set aside. The suit shall stand restored for being disposed of according to law. It is expected that the court below would comply to the requirements of General Rules (Civil) and would proceed only according to law instead of showing undue with haste to dispose of a matter.