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2006 DIGILAW 1589 (DEL)

M. P. SRIVASTAVA v. GYAN GUPTA

2006-09-08

SANJAY KISHAN KAUL

body2006
SANJAY KISHAN KAUL, J. ( 1 ) THE petitioners are aggrieved by the impugned order dated 7. 4. 2005 dismissing the application of the petitioner under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as, 'the said Code' ). ( 2 ) A suit for recovery was filed by the respondent against the petitioners on the Original Side of this Court. However on account of increase of pecuniary jurisdiction of this Court by the order dated 6. 8. 2003, the matter was transferred to the court of District Judge for the parties to appear on 29. 3. 2003. The order passed on 6. 8. 2003 records that the parties will appear before the District Judge when the matter will be assigned to a court of competent jurisdiction. The matter, however, came to be listed before the learned Additional District Judge on 29. 8. 2003. In view of the orders passed on 6. 8. 2003, the learned Additional District Judge adjourned the matter to 23. 9. 2003. The petitioners did not enter the appearance and an ex parte decree was passed on 29. 11. 2003. ( 3 ) LEARNED counsel for the petitioners contends that when a case is transferred to different court, it is the bounden duty of that court to issue a notice to the parties before taking further steps in the matter. In this behalf learned counsel referred to the judgment of the learned single Judge of the Patna High court in the case of Kishore Kumar Agrawal Vs. Basudeo Prasad Gutgutia and another, AIR 1977 Patna 131 and of the learned single Judge of the Bombay High court in the case of Krishnaji Mahadeo Bapat Vs. Wamanrao Balwantrao Shinde and another, AIR 1977 Bombay 36. Reference was also made to the judgment of the learned single Judge of the Allahabad High Court in the case of State of U. P. and another Vs. Sunil Kumar Bajpai and another, 1990 ALL,l. J. 330. The conspectus of the aforesaid judgments shows that before ex parte proceedings are taken out against any party, the transferee court ought to issue notice to the parties, specially since in matters of transfer from one district to another a different counsel would have to be engaged. ( 4 ) INSOFAR as the aforesaid principle is concerned, there can be no doubt. ( 4 ) INSOFAR as the aforesaid principle is concerned, there can be no doubt. It is also not in doubt that if the matter was due to be listed before the District judge on 23. 9. 2003, it ought to have been listed in that manner, but it is not clear as to why the matter was listed prior to that before the learned additional District Judge. Learned Additional District Judge, however, adjourned the proceedings to 23. 9. 2003. ( 5 ) THE application filed by the petitioners under Order 9 Rule 13 of the said code is, however, dated 7. 12. 2004, which is more than a year after the date fixed for the appearance of the parties. A query was posed to the learned counsel for the petitioners as to what steps were taken in the matter once it could not be located before the District Judge on 29. 3. 2003. The only answer given that the petitioners were expecting a notice from the trial court. ( 6 ) LEARNED counsel for the respondent has drawn the attention of this Court to the proceedings which have been held in this Court before the transfer of the matter. On 3. 10. 2001 a direction was issued for the written statement to be filed by the petitioners. On 20. 12. 2001, further time was granted subject to cost imposed on the petitioners. On 2. 5. 2002, it was noticed that the written statement had not been filed nor the cost paid and, thus, the matter was placed by the Joint Registrar before the Court. On 30. 5. 2002 the learned Judge granted further opportunity to the petitioner to file the written statement and listed the matter before the Joint Registrar on 12. 9. 2002. On 12. 9. 2002 again no written statement was filed and the matter was once again placed in default before the Court. ( 7 ) ON 17. 12. 2002, the learned Judge granted last opportunity of four weeks to the petitioner to file his written statement subject to payment of costs of rs. 1000/- failing which the defence would stand struck off. The next date fixed was 21. 4. 2003 when counsel for the petitioners stated that written statement had been filed but counsel for the respondent herein (original plaintiff) disputed having received a copy. 1000/- failing which the defence would stand struck off. The next date fixed was 21. 4. 2003 when counsel for the petitioners stated that written statement had been filed but counsel for the respondent herein (original plaintiff) disputed having received a copy. It was observed that if the written statement had not been filed, the same be filed within four weeks, subject to further cost of rs. 2,000/ -. It is thereafter the matter was taken on 6. 8. 2003 when the order for transfer was made. ( 8 ) THE aforesaid orders are material to show that despite numerous opportunities, the petitioners failed to file the written statement. In fact, the order dated 17. 12. 2002 was peremptory in nature that in case the written statement was not filed and cost not paid the defence would be struck off. It is not in dispute that the written statement has not been filed till date nor cost paid. The statement made by counsel for the petitioner on 21. 4. 2003 before the Court that the written statement had been filed is incorrect. ( 9 ) IT is in the conspectus of the aforesaid facts that the trial court while considering the application of the petitioner under Order 9 Rule 13 of the said code observed that the defence of the petitioner had already been struck off. Thus, this fact was noticed on 23. 9. 2003 when the matter proceeded further. In fact, the petitioner was really not proceeded ex parte and the claim of the respondent was examined in view of the fact that the defence of the petitioners had been struck off. No doubt while passing the decree inadvertently the word 'ex parte' had been used but the prior proceedings show that no such ex parte proceedings were initiated against the petitioner. ( 10 ) THE aforesaid facts set out, thus, show that the present case is one where the right of the petitioner to file the written statement already stood foreclosed prior to the transfer of the matter. The conduct of the petitioner in delaying the proceedings by not filing the written statement is obvious. Neither the written statement was filed nor cost paid despite repeated opportunities. ( 11 ) THE petitioners also took one-year time to move the application under Order 9 Rule 13 CPC. The conduct of the petitioner in delaying the proceedings by not filing the written statement is obvious. Neither the written statement was filed nor cost paid despite repeated opportunities. ( 11 ) THE petitioners also took one-year time to move the application under Order 9 Rule 13 CPC. ( 12 ) IT is in view of the aforesaid circumstances that I am of the considered view that the impugned order dated 7. 4. 2005 does not suffer from any patent error or erroneous exercise of jurisdiction so as to call for interference by this Court. Petition has no merit. Dismissed.