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2001 DIGILAW 769 (PNJ)

Pritpal Bhatti v. Tilak Raj

2001-07-26

R.C.KATHURIA

body2001
JUDGMENT R.C. Kathuria, J. - This order will dispose of Civil Revision Nos. 1446 and 2457 of 2001 as the same have arisen out of the one order dated 20.2.2001 passed by the learned Civil Judge (Junior Division), Ambala City. 2. The essential facts to settle the controversy are that Tilak Raj, plaintiff had filed a suit in the year 1991 for possession of House No. 924/4 by way of specific performance of the agreement dated 7.7.1990 entered into between the parties. The said case was pending in the Court of Shri S.C. Goyal, Civil Judge (Junior Division), Ambala and was fixed for evidence of the plaintiff for 6.4.1998. On that date, no evidence of the plaintiff was present and the case was adjourned to 14.10.1998 with the direction that it was the last opportunity to the plaintiff to produce his evidence on that day. On 14.10.1998, the case was not listed in the said Court. On enquiry from his counsel, the plaintiff was informed by the counsel that this case has been transferred to some other Court. On 23.7.1998, the suit in question was transferred by the learned District Judge, Ambala to the Court of Ms. Gurvinder Kaur, Civil Judge (Junior Division), Ambala. When the case was taken up by the transferee Court on 14.10.1998, defendant did not put in appearance despite notice of transfer of this case having been sent to the Bar Room, Ambala along with the list of cases which were transferred to the transferee Court. The defendant did not appear when the case was taken up on 14.10.1998 and was proceeded ex-parte. The case was posted for the evidence of the plaintiff on 16.11.1998. Thereafter, the evidence of the plaintiff was completed on 14.12.1998 and the case was adjourned to 11.1.1999 for arguments. Ultimately, the suit was decreed on 28.1.1999 ex-parte directing the plaintiff to deposit Rs. 27,503/- as the balance consideration or the sale price of the property in dispute. Later on, defendant came to know on 4.2.1999 from resident of his locality, namely, Inderpuri, Ambala City that the suit had been decided against him. Thereafter, he made enquiries and came to know that he was proceeded ex-parte and the case had been decided against him on 28.1.1999. Later on, defendant came to know on 4.2.1999 from resident of his locality, namely, Inderpuri, Ambala City that the suit had been decided against him. Thereafter, he made enquiries and came to know that he was proceeded ex-parte and the case had been decided against him on 28.1.1999. Then he moved an application under Order 9, Rule 13 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code) praying for setting aside the ex-parte order dated 28.1.1999 on the ground that he had not received any notice from the transferee Court for the date fixed and more so his counsel was also not aware about the name of the transferee Court and for that reason, he could not inform him about the transferee Court where he was to appear in the suit. This application was contested by the plaintiff. 3. The trial Court taking into account the pleadings of the parties, accepted the stand of the defendant and set aside the ex-parte order dated 28.1.1999 by making the following observations :- "In the present case no such service had explicitly taken place and it is not very unnatural that the defendant remained oblivious of the notice served to the President of the Bar Association. In such circumstances at the most the defendant can be held to be lethargic and not diligent enough. But presumption of due service cannot be raised. Accordingly, it is ordered that the decree dated 28.1.99 ex-parte the defendant stands set aside. However, this order is conditional and unless defendants pays a cost of Rs. 27,503/- (7200 being interest @ 6% p.a.) the amount spent on execution of the Sale Deed to the plaintiff by the sale deed shall remain in force and the present order shall not become operative. Thus, payment of the cost shall be a condition precedent." Aggrieved by the imposition of the cost in the aforesaid order dated 20.2.2001 passed by the learned trial Judge, the petitioner-defendant (Pritpal Bhatti) filed Revision Petition No. 1446 of 2001 on the plea that imposition of heavy cost is not only unreasonable but arbitrary and amounts to denial of fair justice to him. 4. 4. Plaintiff (Tilak Raj) filed Civil Revision No. 2457 of 2001 assailing the order of the learned trial Judge setting aside the ex-parte decree dated 28.1.1999 on the ground that no sufficient cause had been shown by the defendant for the non-appearance on 14.10.1998 for setting aside the order dated 14.10.1998 and consequential setting aside the decree. 5. I have heard learned counsel representing the parties. It is manifest from the stand taken by the parties that suit filed by the plaintiff was fixed for his evidence on 6.4.1998 and on that day it was adjourned to 14.10.1998 with the direction to the plaintiff that he was afforded last opportunity to produce his evidence. It is also not disputed that as per order dated 23.7.1998, the learned District Judge, Ambala had transferred this case from the Court of Shri S.C. Goyal, Civil Judge (Junior Division), Ambala to the Court of Ms. Gurvinder Kaur. Civil Judge (Junior Division), Ambala. No notice had been issued by the transferee Court to the defendant. Obviously, on 6.4.1998 it could not be in the knowledge of the parties that the case will be taken up by the Court of Ms. Gurvinder Kaur because no order of transfer had been passed by that day. Merely because a copy of the list of cases, which included the present suit of the parties, was sent to the Bar Room, Ambala, it cannot be construed that counsel for the defendant as well as defendant had acquired knowledge about the transfer of this case to the Court of Ms. Gurvinder Kaur, Civil Judge (Junior Division), Ambala. It has been laid down in the High Court Rules and Orders, Volume-I, Chapter-16, Rule-6 that it is the duty of the transferee Court to intimate the date fixed in the case to the parties. Obviously, the cause of the party cannot be allowed to suffer simply because the Court has failed to perform its duty. In Hira Lal and others v. State of Bihar, AIR 1968 Patna 439, the land acquisition cases were pending before the District Judge, Arrah and the same were suo motu transferred to the Court of Subordinate Judge, Sasaram, but no information about transfer was communicated to the parties or their pleaders. Under these circumstances of the case the parties could not put in appearance before the transferee Court and this led to the passing of ex-parte order. Under these circumstances of the case the parties could not put in appearance before the transferee Court and this led to the passing of ex-parte order. It was observed that in all cases of transfer made by the Court, notice of transfer must be given to the parties or their lawyers. 6. In Kishore Kumar Agrawal v. Basudeo Prasad Gutgutia and another, AIR 1977 Patna 131, it was observed as under :- "In my opinion, the answer is in the affirmative. In every case of transfer the transferor Court is duty bound to send a separate notice to each party in respect of the transfer of the case. The transferor Court is required to send the notices for the simple reason that the party has to appoint a new lawyer in the transferee Court. It is for this reason it is incumbent upon the transferor Court to send a notice of transfer to each party in a suit." 7. As already noticed, no notice in this case had been given by the transferee Court to the defendant. Learned counsel representing the plaintiff had not disputed the factual position and the soundness of the view taken in the above noted cases, but he put forth additional ground to disentitle the defendant to seek setting aside of the order dated 14.10.1998 because defendant was fully aware that the Court of Shri S.C. Goyal, Civil Judge (Junior Division), Ambala, while adjourning the case on 6.4.1998 had fixed the date of 14.10.1998 for evidence of the plaintiff on that day and for that reason he was duty bound to appear and make verification from the said Court in order to find out to which Court the case stood transferred. 8. There is hardly any merit in the submission of the learned counsel for the plaintiff because the transferee Court had not sent any notice to the defendant, therefore, he could not be fastened with the responsibility to have made enquiry from the Court of Shri S.C. Goyal on 14.10.1998 as to which Court his case had been transferred. Many a time, litigants are not literate and they do not even enter the Court room finding that the case is not listed in the cause list which is generally displayed outside the Court room on the notice board. Many a time, litigants are not literate and they do not even enter the Court room finding that the case is not listed in the cause list which is generally displayed outside the Court room on the notice board. Therefore, the above order of the trial Court for setting aside the ex-parte order dated 14.10.1998 passed against the defendant has to be upheld. 9. Coming to the other grievances made, it has been strenuously urged by the counsel for the defendant that the order for payment of the cost of Rs. 27,503/- and Rs. 7,200/- as interest as a condition precedent for allowing the application for setting aside the ex-parte decree is not only unjustified but wholly illegal. This question has two facets. It has been laid down in Order 9, Rule 13 of the Code that after the Court is satisfied that the defendant has sufficient cause for non-appearing when the suit is called for hearing, the Court can make an order for setting aside the decree as against him upon such terms as to costs as it thinks fit. In this case, I have already noticed that defendant has been able to establish sufficient cause of non-appearance for 14.10.1998. The Court is duty bound to take into consideration before fixing any condition onerous on the party as to whether he was at fault at all or there was some act of negligence or omission and whether such negligence or act was of grave nature justifying rejection of the application for setting aside the ex-parte decree. In the present case, the trial Court has itself found sufficient cause for non-appearance of the defendant on 14.10.1998. This non-appearance can not even remotely be construed due to any contributory role played by the defendant. Therefore, the question of negligence or omission on his part to put in appearance in the Court on 14.10.1998 does not arise at all. What should be approach of the Court with regard to the imposition of conditions precedent for setting aside of the order have been noticed in many cases. 10. In State of Orissa v. Sibaram Baral, 1996(3) RCR(Civil) 310, the High Court, while setting aside the ex-parte decree of the trial Court, has directed the appellants to deposit the decretal amount and the costs. In this case, the trial Court set aside the ex-parte decree subject to payment of Rs. 50/-. 10. In State of Orissa v. Sibaram Baral, 1996(3) RCR(Civil) 310, the High Court, while setting aside the ex-parte decree of the trial Court, has directed the appellants to deposit the decretal amount and the costs. In this case, the trial Court set aside the ex-parte decree subject to payment of Rs. 50/-. The High Court in its order dated 8.1.1992 in C.R. No. 694 of 1991 allowed the revision and set aside the order of the trial Court. It further directed the appellants to deposit the amount of the decree and the costs. Against the said order the matter was taken to the Apex Court. While setting aside the order of the High Court, the Apex Court observed as under :- "When an appellate power is exercised on an appeal filed against the decree of the trial Court the Court exercise judicial discretion to grant conditional stay of the execution of the money decree reasonably based on fact situation. In this case, there is no appeal before the High Court against ex- parte decree of the trial Court. The trial Court itself set aside the ex-parte decree subject to the payment of the cost. When revision was carried, the High Court was required to consider whether the trial Court properly considered the facts to set aside the ex-parte decree and the case called for interference. It cannot exceed its jurisdiction in directing the appellant to deposit the entire decretal amount and also the cost of Rs. 7,500/-. The explanation given by the State is well justified as no one takes responsibility for the lapses. Each would pass the buck on the other. Ultimately, it would be the public justice which would conquer and put to jeopardy. Under these circumstance, the order of the High Court is set aside and that the trial Court is restored." In Raj Kumar Soni v. M/s. Mohan Meakin Breweries Ltd., AIR 1979 Allahabad 370, it was observed as under :- "Where the Court set aside ex-parte decree on a clear finding that the defendant had sufficient cause for being absent on the day the ex-parte decree was passed, as he was not informed of the date fixed for hearing, imposition of condition that the defendant should deposit 1/5th of the amount claimed in suit (Rs. 2 lacs) within 60 days for setting aside the ex-parte decree was improper. 2 lacs) within 60 days for setting aside the ex-parte decree was improper. Unless the party is at fault normally no condition should be imposed for payment of money or furnishing of security while setting aside the ex- parte decree. The Court can always award cots to compensate the other side for inconvenience and loss caused to the said party. Where the Court finds that the defendant is at fault or there was omission on his part or it was because of his act that there had been delay in the disposal of the case, the Court may impose reasonable terms. It is not open to the Court at any time to impose onerous terms. An order directing the party to deposit 1/5th of the decretal amount is not justified when the amount claimed in the suit is large one. There are other modes of safeguarding the interest of the plaintiff. If the Court finds that the defendant is disposing of his properties or moving away from the jurisdiction of the court or has been delaying the proceedings in the suit, the Court would be justified in imposing the terms for the payment of money into court or furnishing of security, and if need be for the entire amount claimed in the suit. AIR 1933 All 601, AIR 1960 Madh Pra 234 Foll." 11. In Life Insurance Corporation of India v. Anjan Kumar Arora and others, AIR 1987 Calcutta 197, the Court took the view that in application for restoration of suit decreed ex-parte, the Court can at time certainly impose conditions but such conditions must be reasonable and must have some justification having regard to the attending circumstances. 12. The ratio of the above mentioned cases also shows that when there is no fault attributable to the parties in not putting appearance on the day when ex-parte order was passed, the imposition of condition precedent should be avoided. Taking into account the above circumstances put on record, I find that the direction of the trial Judge calling upon the defendant to make payment of Rs. 27,503/- along with interest at a condition precedent for allowing the application for setting aside the ex-parte decree suffers from illegality apparent on the face of record which would lead miscarriage of justice and as such this part of the direction is also set aside. 27,503/- along with interest at a condition precedent for allowing the application for setting aside the ex-parte decree suffers from illegality apparent on the face of record which would lead miscarriage of justice and as such this part of the direction is also set aside. Consequently, Revision Petition No. 1446 of 2001 filed by Pritpal Bhatti- defendant is accepted and Revision Petition No. 2457 of 2001 filed by Tilak Raj-plaintiff is dismissed. Order accordingly.