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2007 DIGILAW 1228 (MAD)

V. Veeranan v. P. Srinivasan

2007-04-05

S.NAGAMUTHU

body2007
Judgment :- This Civil Revision Petition has been filed challenging the order dated 06.03.2006, made in C.M.A.No.58 of 2005, on the file of the learned I Additional Subordinate Court, Madurai, reversing the Order dated 22.07.2005, made in I.A.No.197 of 2005 in O.S.No.299 of 2004, on the file of the learned District Munsif, Melur. 2. Originally the suit in O.S.No.299 of 2004, was filed by one Mukkammal alias Irulayee on the file of the learned II Additional Subordinate Judge, Madurai. During the pendency of the suit, the sole plaintiff namely Mukkammal alias Irulayee died. The petitioners herein who are the legal representatives of the deceased Mukkammal alias Irulayee were added as plaintiffs 2 and 3 in the said suit. The respondent herein is the first defendant in the said suit. On service of notice, the respondent duly appeared before the lower Court. When the suit was in part heard stage, in pursuant to Tamil Nadu Civil Court Amendment Act, raising the pecuniary jurisdiction of the Courts, the above suit was transferred from the file of learned II Additional Subordinate Judge to the file of the learned District Munsif, Melur and in the transferee court, the said suit was renumbered as O.S.No.299 of 2004. Admittedly, after the transfer, the transferee Court did not serve any notice on the respondent herein, intimating the date of hearing. Before the transferee Court namely, the learned District Munsif, Melur, the respondent herein did not appear. Therefore, he was set exparte and an exparte decree was passed against him on 17.09.2004. Claiming that he had come to know about the passing of exparte decree only on 17.01.2005, through his new counsel, the respondent has filed I.A.No.197 of 2005, before the learned District Munsif, Melur, seeking to set aside the exparte decree dated 17.09.2004. In support of the said application, the respondent has filed an affidavit wherein, he has stated that the transferee Court did not serve any notice on him and therefore, he could not know about the date of hearings which resulted in an exparte decree against him. He has further stated that, he came to know about the passing of the exparte decree only on 17.01.2005 and thereafter, within 30 days he has filed the said I.A. 3. He has further stated that, he came to know about the passing of the exparte decree only on 17.01.2005 and thereafter, within 30 days he has filed the said I.A. 3. In the said I.A., the petitioners herein have filed a detailed counter wherein, they have stated that though individual notice was not served on the respondent, it is very much in practice to exhibit the list of transferred cases with the relevant date of hearings in the Notice Board of transferor Court and transferee Court. They have further stated that, it is not only impracticable, but also impossible to serve individual notice in all transferred cases by the Courts. They have further stated that though, no individual notice was served on the respondent, he had knowledge about the pendency of the suit in the transferee Court. They have further stated that the said I.A., is barred by limitation since, it was not filed within the 30 days from the date of exparte decree. 4. Considering the materials available on record and the rival contentions made by both the parties, the learned District Munsif, Melur, by order dated 22.07.2005, has dismissed the said I.A., holding that it is highly impossible to serve individual notice to the parties in all the cases where transfer has been made and it is only for the parties to keep track of the case to know the date of hearing in the transferee Court and to appear. 5. Challenging the said order of dismissal, the respondent has filed C.M.A.No.58 of 2005, on the file of the learned I Additional Subordinate Judge, Madurai. On perusing the records and after considering the rival contentions made by both the parties, the learned Judge by order dated 06.03.2006, has allowed C.M.A.No.58 of 2005, holding the view that it is absolutely necessary under the law to serve individual notice on the parties by the transferee Court and also held that the starting point of limitation of 30 days to file Interlocutory Application seeking to set aside the exparte decree is only from the date of knowledge and not from the date of exparte decree. The learned I Additional Subordinate Judge has also relied on the Judgment reported in AIR 1979 Madras 36 and AIR 1983 Patna 333. The learned I Additional Subordinate Judge has also relied on the Judgment reported in AIR 1979 Madras 36 and AIR 1983 Patna 333. Aggrieved over the said order of the learned I Additional Subordinate Judge, the present civil revision petition has been filed by the petitioners herein. 6. Heard the learned counsel for the petitioners as well as the learned counsel for the respondent. 7. Thelearned counsel for the petitioners has raised three important points which are as follows:- (i) Service of individual notice to the respondent is not at all required under law and exhibiting the list of cases and the relevant dates of hearings of the said cases in the notice Board of the transferee Court amounts to sufficient and proper service of notice. (ii) Assuming that service of individual notice is necessary in the case on hand, the respondent had sufficient knowledge about the pendency of the suit in the transferee Court and the dates of hearings and he did not appear wantonly before the transferee Court only with a view to drag on the proceedings. (iii) In any view of the matter, since, the application seeking to set aside the exparte decree has not been filed within 30 days from the date of passing of the exparte decree, the said I.A., is barred by limitation. 8. On these grounds, the learned counsel for the petitioners has argued that this Court has to set aside the order of the learned I Additional Subordinate Judge, which is under challenge now. 9. Per contra, learned counsel for the respondent would contend that service of individual notice to the parties by the transferee Court is absolutely necessary and essential and it is also a legal requirement. He has further contended that without such notice, one cannot expect the party to keep track of the proceedings of the transferee Court to know about the hearing date to face the trial. (i) The next contention of the learned counsel for the respondent is that the respondent had no knowledge at all about the pendency of the suit in the transferee Court and especially about the hearing dates and therefore, it cannot be said that the respondent’s action amounts to delaying tactics. (ii) The said I.A., is not barred by limitation since, the same has been filed within 30 days from the date of knowledge. (ii) The said I.A., is not barred by limitation since, the same has been filed within 30 days from the date of knowledge. According to him, the crucial date is not the date of exparte decree, it is only the date of knowledge. 10. The learned counsel for the respondent has placed reliance of the Judgment reported in AIR 1995 ANDHRA PRADESH 58 (Koruprolu Atchaya and others v. Bideshi Raghuram Singh) wherein, the Andhra Pradesh High Court has held that, the transferor Court has to issue notice either to the counsel who is on record or to the parties, intimating the date of their appearance before the transferee Court. In this case, the transferor Court has not served notice to the respondent. A careful reading of the said Judgment would show that, the Andhra Pradesh High Court has incorporated Rule 63 of the Civil Rules of Practice, which reads as follows:- “Application for transfer:- An application for transfer of a suit, appeal or other proceeding from one Court to another shall be made by Original Petition entitled in the matter of the pending suit, appeal or other proceeding as in Form No.17. Notice of the application in Form No.18 shall be issued and served on the other parties to the suit, appeal or other proceedings. Provided that if under S.24 of the Code, the District Court transfers a suit, appeal or other proceeding of its own motion and without giving notice in the first instance, it shall record in writing its reasons for dispensing with such notice and shall direct the court from which it has been transferred to intimate the parties or their Advocates about the transfer and the date of on which they should appear before the court to which it has been transferred”. Therefore, the contention of the learned counsel for the respondent is that notice should have been at least served on the respondent by the transferor Court intimating the date of hearing in the transferee Court. 11. I have considered the rival contentions made by the learned counsel for the petitioners as well as the learned counsel for the respondent and also perused the materials available on record. I am of the view that the contentions of the learned counsel for the petitioners cannot be accepted for the reasons stated below. 11. I have considered the rival contentions made by the learned counsel for the petitioners as well as the learned counsel for the respondent and also perused the materials available on record. I am of the view that the contentions of the learned counsel for the petitioners cannot be accepted for the reasons stated below. (i) This Court in the case reported in 94 L.W 256 (Ellapuram Panchayat Union v. Sri Bhavaniammal Devasthanam), wherein in paragraph No.9, has held as follows:- “9. It would be a very salutary practice if even in cases of appeals transferred from one Sub Court to another owing to exigencies of of workload, a notice to that effect should be given to the parties informing them that the appeal which was pending before one Court has since been transferred to another Court. No provision to this effect either under the C.P.C., or under the Civil Rules of Practice and Circular Orders has been brought to the notice of the Court by the counsel on either side. Since a party to a litigation before any Court should know where it is pending and when it is likely to be taken up, it is essential-that parties must be informed by the transferee Court in order to enable them to appear before the transferee court and contest the proceedings so transferred by engaging other counsel and taking necessary steps in that regard. In the absence of any provision to that effect either under the C.P.C., or under the Civil Rules of Practice and Circular Orders, every effect should be made by Courts to put the litigants on notice of the transfer of pending litigation, be it the trial Court or the appellate Court as the case may be. It is very necessary and desirable-nay, even imperative till such time as provision in this regard is made either under the C.P.C or under the Civil Rules of Practice and Circular Orders that there should be an inflexible adherence to this requirement regarding notice; as otherwise, Courts cannot adjudicate upon the rival claims of the litigants before it after giving an effective and adequate hearing to both sides, which is the bedrock of our system of administration of justice.” (ii) Admittedly, in the case on hand, no such notice has been served. The learned District Munsif in his order has stated that it is impossible to serve such individual notice to all the parties in all the cases where transfer has been made. The said reasoning, given by the learned District Munsif cannot be sustained in view of the guiding principles laid down by this Court in the above case. The same has been rightly rejected by the learned Subordinate Judge and he has rightly held that, notice should be served individually on the parties. Thus, finding of the learned Subordinate Judge in this regard is certainly sustainable under law. (iii) The learned counsel for the petitioners would submit that though, there was no individual notice served on the respondent, still he had knowledge of the pendency of the suit and also the dates of hearings and he did not appear before the lower Court on the date of hearings only with a view to drag on the proceedings. On perusal of the records, I do not find any such material to show that the respondent had knowledge about the dates of hearings. Therefore, the second contention of the learned counsel for the petitioner also deserves to be rejected. (iv) The third contention of the learned counsel for the petitioner is that the said I.A is barred by limitation. Since the application was not filed within 30 days from the date of passing of the exparte decree. According to him the crucial date is only the date of passing of the exparte decree and not the date of knowledge. (v) In the Judgment reported in AIR 1979 MADRAS 36 (International Cotton Traders v. P.Narayanaswami), wherein the Division Bench has held as follows:- “Under Art.123 the starting points of limitation are two. One is the date of the decree and the other is the date of the knowledge of the decree. With reference to the second, the condition to be satisfied is that no summons or notice should have been duly served. Thus, a person applying for setting aside an exparte decree can claim that the period of limitation should commence from his knowledge of the decree only in a case where the summons or notice was not duly served. In other cases, limitation commences from the date of the decree itself.” (vi) Admittedly, in the case on hand, there was no notice or summons served on the respondent from the transferee Court. In other cases, limitation commences from the date of the decree itself.” (vi) Admittedly, in the case on hand, there was no notice or summons served on the respondent from the transferee Court. As held supra, that such a notice is a legal requirement and non service of such notice would bring the case of the respondent under a second part of Art.123. The principle laid down by the Division Bench therefore, squarely applies to the facts of the present case. When the said guiding principle is applied to the facts of the case what emerges is that, it is the date of knowledge of the passing of the exparte decree and not the date of passing of the decree from which the period of limitation commences. Similar view has been expressed by the Ranchi Bench of Patna High Court in the case reported in AIR 1983 PATNA 333 (Hari Shankar v. Sankar Lal), wherein, it has been held that “The first part, namely, the case date of the decree is general in nature and is intended to cover all cases except the one covered by the second part, namely, the case when the summons or notice was not duly served on the defendant.” The said view of the Patna High Court is in confirmity with the view expressed by the Division Bench of this Court. (vii) In the Judgment reported in 1998 (7) SCC 123 (N.Balakrishnan v. M.Krishnamurthy), while dealing with the object of fixing time limit for the parties to approach the Courts under the Limitation Act, the Hon’ble Supreme Court has held as follows:- “The primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The time-limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.” (viii) These observations made by the Hon’ble Supreme Court would make it clear that the parties who approach the Court should get complete justice and the doors of justice should not be closed on a technical ground of limitation unless it is established that the parties are adopting dilatory tactics to drag on the proceedings. In the case on hand, since it has been concluded that, the petitioner had no knowledge about the passing of the exparte decree for want of service of notice, he cannot be expected to file application within 30 days from the date of passing of the exparte decree. For these reasons, I have to necessarily reject the third contention of the learned counsel for the petitioner. 12. In the above said circumstances, I do not find any reason to interfere with the order of the learned I Additional Subordinate Judge, Madurai and hence, the order dated 06.03.2006 made in C.M.A.No.58 of 2005, is hereby confirmed. The civil revision petition is dismissed. No costs. Consequently, connected M.P is closed.