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2008 DIGILAW 305 (ALL)

SIKANDAR v. AKHALAK

2008-02-08

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) -THIS petition has been filed for setting aside the order dated 29th May, 2002 passed by the learned Civil Judge (Junior Division), Budhana in Misc. Case No. 1 of 2002 whereby the restoration application filed by the defendant for setting aside the ex parte order dated 30th August, 2001 was rejected. The petitioner has also sought the quashing of the order dated 24th April, 2004 by which the civil revision for setting aside the aforesaid order dated 29th May, 2002 was rejected. ( 2 ) S. C. C. Suit No. 6 of 1990 was filed by the landlord for recovery of arrears of rent and ejectment. The Trial Court passed an order on 11th May, 2000 that the case shall proceed ex parte against the defendant. On 17th May, 2001, the District Judge transferred the suit from Civil Judge (Senior Division) to Civil Judge (Junior Division), Muzzafarnagar and subsequently on 23rd May, 2001 S. C. C. Suit was again transferred from the Court of Civil Judge Junior Division), Muzaffarnagar to Civil Judge (Junior Division), Budhana. On 30th August, 2001 the suit was decreed ex-parte. It is the contention of the petitioner that he came to know about the aforesaid ex-parte order on 4th April, 2002 and thereafter he moved an application on 8th April, 2002 for setting aside the exparte order which was registered as Misc. Case No. 1 of 2002. Tills application was rejected by the Civil Judge Junior Division) Budhana on 29th May, 2002 and the revision filed for setting aside the aforesaid order was also dismissed. ( 3 ) I have heard Sri Shashi Nandan, learned Senior Counsel for the petitioner assisted by Sri Nalin Kumar Sharma and Sri S. A. Gilani, Learned Counsel for the respondent. Tills application was rejected by the Civil Judge Junior Division) Budhana on 29th May, 2002 and the revision filed for setting aside the aforesaid order was also dismissed. ( 3 ) I have heard Sri Shashi Nandan, learned Senior Counsel for the petitioner assisted by Sri Nalin Kumar Sharma and Sri S. A. Gilani, Learned Counsel for the respondent. ( 4 ) LEARNED Senior Counsel for the petitioner submitted that even though there was a direction by the Trial Court on llth May, 2001 to proceed ex-parte against the defendant, still when the suit was transferred on 23rd May, 2001 for the Court of Civil Judge (Junior Division), Muzaffarnagar to Civil Judge (Junior Division), Budhana, it was incumbent upon the Court to have given notice to the defendant under the provisions of Rule 89-A of the General Rules (Civil) (hereinafter referred to as the rules) but no notice of the transfer of the case was given to the defendant or his Counsel and in support of his contention he has placed reliance upon the decision of this Court in Ashtosh Shrotriya v. Rais Uddin, 1994 (24) ALR 238=1993 (Suppl.) RD 73. In such circumstances, learned Senior Counsel submitted that the applkation filed by the defendant-petitioner for setting aside the ex-parte order was liable to be allowed. ( 5 ) SRI S. A. Gilani, learned Counsel appearing for the respondents however, submitted that once the Trial Court had passed an order on 11th May, 2001 that the case shall proceed ex-parte against the defendants, it was not necessary for the Court to have issued notice either to the defendant or his Counsel under Rule 89-A of the Rules when the case was transferred on 23rd May, 2001 from the Court of Civil Judge (Junior Division), Muzafarnagar to the Court of Civil Judge (Junior Division), Budhana. ( 6 ) I have carefully considered the submissions advanced by the learned Counsel for the parties. ( 6 ) I have carefully considered the submissions advanced by the learned Counsel for the parties. ( 7 ) IT ia not in dispute that the Trial Court passed an order on llth May, 2000 that the suit shall proceed ex-parte against the defendant, it is the contention of the learned Senior Counsel for the petitioner that even though the order to proceed ex-parte may have become final between the parties, yet the Court was obliged to comply with the provisions of Rule 89-A of the Rules and in support of his contention he has placed reliance upon the decision of this Court in Ashtosh Shrotriya (supra ). Rule 89-A of the Rules is as follows : "89-A. Procedure to be followed on transfer or withdrawal of cases.- (1) When a case, i. e. a suit, appeal of other proceedings in which a date for attendance of a party or the parties in a particular Court has been fixed, is transferred from the 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 more 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 send to the other Court along with 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. It shall also send to the other Court along with 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. (5) In sub-rule (1) to (4) transfer includes withdrawal of a case. " ( 8 ) THIS Court in Ashtosh Shrotriya (supra) in connection with Rule 89-A of the Rules observed as follows : "the points for consideration in the instant case are as to what construction and meaning has to be assigned to the expression suit be heard exparte under Order IX, Rule 6 of the Code, and as to whether the larned District Judge could transfer the case or the suit in violation of the provisions of Rule 89-A of the General Rules (Civil); and as to whether the grounds enumerated in section 115 of the Code have been made out for interference by this Court. The expression that the suit be heard ex-parte as adopted by the legislature under Rule 6 (1) (a) of Order IX of the Code simply means that the Court may proceed to hear the different stages of the suit ex parte, but certainly not to decide it on merits ex-parte. To suit it differently, the object of the expression that the suit be heard ex-parte is not to pass an ex-parte decree. ( 9 ) IN Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425 . their lordships of the Supreme Court observed as under : "as we have already observed, out laws of procedure are based on the principle that, as far as possible, no proceeding in a Court of law should be conducted to the detriment of a person in his absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. There are of course exceptions, and this is one of them. When the defendant has been served and has been afforded an opportunity of appearing, then, if he does not appear, the Court may proceed in his absence. But, be it noted, the Court is not directed to make an ex-parte order. Of course the fact that it is proceeding ex-parte will be recorded in the minutes of its proceedings but that it is merely a statement of the fact and is not an order made against the defendant in the sense of an exparte decree or other ex-parte order which the Court is authorised to male. All that rule 6 (1) (a) does is remove a bar and no more. It merely authorises the Court to do that which it could not have done without this authority, merely to proceed in the absence of one of the parties. The contrast in language between Rule 7 and Rule 13 emphasises this. " the aforesaid observation does not indicate that any proceeding in a Court may be conducted to the detriment of a person and the meaning of the expression that the suit be heard ex-parte is not that the Court may pass an ex-parte decree or order. In any event, the expression does not convey the meaning that the defendant applicant should be precluded from participating in the preceding of the suit. In view of the ration of this case, it is abundantly clear that the order to proceed ex-parte does not preclude the defendant from participating in further proceeding of the suit. Rule 89-A of the General Rules (Civil) has been framed with a view to do justice between the parties and to inform the other side whenever an order transferring a case from one Court to another Court has been made. The Court transferring the case has been enjoined the duty to record the order of transfer in the order-sheet and to get it signed by the Counsel of the parties. In the present case, the order does not appear to have been passed on the order-sheet and the parties or their Counsel were net called upon to sign the order so that they could have the information that the case was being transferred to some other Court. In the present case, the order does not appear to have been passed on the order-sheet and the parties or their Counsel were net called upon to sign the order so that they could have the information that the case was being transferred to some other Court. This has also been provided under Rule 89-A of the General Rules (Civil) that the information about the transfer of the case has to be sent to the party concerned at its registered address. The court to which the case was transferred is under obligation to enquire the presence of the parties" and the same has to be noted. Sub-rule (4) of Rule 89-A also provides that the Court to which the case is transferred shall not proceed without satisfying itself that the parties have been informed. This procedure was not followed and the Court to which the case was transferred i. e. XIth Additional District Judge, did not ascertain as to whether defendant applicant was informed about the transfer of the case. Thus, when the case is transferred from one Court to another, the procedure laid down in Rule 89-A has to be followed so that the principles of natural justice are sufficiently complied with. In the present case, neither the first Court making the transfer not the transferee Court appear to have performed its duties and the transferee Court appears to have proceeded to decide the matter in violation of the provisions of Rule 89-A of the General Rules (Civil ). In such a situation, the impugned order having been passed without ascertaining as to whether the Counsel for the defendant was informed about the order of transfer or without ascertaining as to whether both the parties have been informed about the date fixed in the transferee Court was manifestly erroneous and the Courts below have certainly exercised their jurisdiction illegally and with material irregularity. Consequently, the decision rendered is against the procedure provided and cannot be sustained. In the present case, the case was transferred from the Court of District Judge to the Court of XIth Additional District judge without any information to the defendant or his Counsel as contemplated by Rule 89-A of the General Rules (Civil) and it would certainly constitute. sufficient cause for non-appearance. In the present case, the case was transferred from the Court of District Judge to the Court of XIth Additional District judge without any information to the defendant or his Counsel as contemplated by Rule 89-A of the General Rules (Civil) and it would certainly constitute. sufficient cause for non-appearance. " (Emphasis supplied) ( 10 ) THUS in view of the aforebaid decision of this Court it has to be held that the Court was obliged to issue notice to the defendant in view of the provisions of Rule 89-A of the Rules. Both the Courts below, however, had not examined the issue in this perspective and have merely proceeded to examine whether the defendant had notice of the suit on 23rd February, 2000 when the Counsel had appeared. In my opinion the crucial date was 23rd May, 2001 on which date the case was transferred from the Court of Civil Judge (Junior Division), Muzaffarnagar to the Civil Judge (Junior Division), Budhana and since notice as required under Rule 89-A of the Rules was not given to the defendant, the application filed by him for setting aside the ex-parte decree was liable to be allowed in view of the decision of this Court in Ashtosh Shrotriya (supra ). ( 11 ) SUCH being the position, the orders passed by Court below are set aside the application filed by the defendant for setting aside the ex-parte decree is allowed. However, as the suit was filed in the year 1990 and sufficient time has already lapsed, it would be appropriate to issue a direction to the Trial Court to decided S. C. C. Suit No. 6 of 1990 expeditiously, preferably within a period of four months from the date of certified copy of the order of produced by either of the parties before the Court below. It is made clear that the Court has not adjudicated upon the merits of the order dated 11th May, 2000 by which a direction was issued to proceed ex-parte against the defendant. ( 12 ) THE writ petition is allowed to the extent indicated above. Petition Allowed. .