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2016 DIGILAW 1612 (MAD)

Dhanalakshmi v. Nallammal Rangasam (died)

2016-04-22

P.R.SHIVAKUMAR

body2016
ORDER : Notice sent to the first respondent has returned with an endorsement "expired". Learned counsel for the petitioner has filed a Memo today stating that the first respondent is very much alive. The Memo is recorded. 2. Service of notice on respondents 3 to 8 is yet to be completed. Await service of notice on respondents 3 to 8 till 13.06.2016. Fresh notice to the first respondent by then. Batta in two days. The matter shall be listed on 13.06.2016. 3. Before concluding this order, this court wants to issue certain directions to the Registry as well as the Bar/litigants. Many instances have come to the notice of this court, wherein notices were sent directly to the parties at the first instance, without making an attempt to serve notice on the counsel for such parties appearing in the lower court, as contemplated under Order VII Rule 3 of the Madras High Court Appellate Side Rules. Whenever this court grants permission to the petitioners to serve private notice on the respondents, in such cases, the petitioners simply issue private notices without paying proper batta for service of notice on the respondents through court again in terms of Order VII Rule 3 of the Madras High Court Appellate Side Rules. The same is the result of the failure to conceive that the permission granted for service of notice privately is not in substitution of, but in addition to the service of notice through court. In many cases, such private notices with the permission of the court, are sent directly to the parties irrespective of the fact that they are represented by a legal practitioner in the court below. Such a procedure is totally against the scope of Order VII Rule 3 of the Madras High Court Appellate Side Rules. 4. Order VII Rule 3 of the Madras High Court Appellate Side Rules reads as follows: (1) In any appeal, or other proceedings instituted in the High Court before the disposal of the main proceedings in the Subordinate Court, notice shall be served on the practitioner who represents the party in the main proceeding in the Subordinate Court and such service on the party who is represented by such practitioner. Where a party is not represented by a practitioner in the main proceeding, notice shall be served on the party direct. Where a party is not represented by a practitioner in the main proceeding, notice shall be served on the party direct. (2) Where the practitioner on record for a party declines to such notice, the case shall be posted before the Court for orders. (In clause (1) the last part of the first sentence contains an omission. The omitted words are "shall be deemed to be a service)". 5. If the procedure contemplated under the above said rule is not strictly adhered to, the object sought to be achieved, namely minimising the time spent on service of notice shall stand defeated. This court also came across several instances of Batta memos filed in appeals or revisions filed against interim/interlocutory orders, without specifying which of the respondents were represented by a legal practitioner and which of the respondents were not represented by a legal practitioner in the main proceedings pending before the court below. The Registry also failed to insist upon providing such particulars in the revision petition/appeals and in the Batta Memos. 6. Hence, this court hereby issues the following directions: (a) Whenever an appeal or revision is filed in the High Court against interim orders, interlocutory orders or interim decrees or findings while the main proceeding is pending before the court below, the appeal memorandum/ revision petition shall contain the particulars as to which of the respondents are represented by legal practitioners and which of the respondents are not represented by legal practitioners in the main proceeding pending before the court below from which the appeal/revision has arisen. (b) The memorandum of grounds or a revision petition shall specifically state the address of the legal practitioner appearing for the respondents in the main proceeding before the court below, as the address for service on such respondents in accordance with Order VII Rule 3 of the Madras High Court Appellate Side Rules. (c) In the Batta Memo, respondents who are represented by a legal practitioner in the main proceeding pending before the court below shall be specifically indicated and against their names, the address of their counsel appearing in the court below should be noted as the address for service in accordance with the above said rule. (c) In the Batta Memo, respondents who are represented by a legal practitioner in the main proceeding pending before the court below shall be specifically indicated and against their names, the address of their counsel appearing in the court below should be noted as the address for service in accordance with the above said rule. As against the names of the respondents who are not represented by a legal practitioner in the main proceeding pending before the court below, a specific indication should be made to the effect that they are not represented by a legal practitioner in the main proceeding before the court below and that notice to them should be sent to their own addresses. (d) While sending notice to the counsel appearing for the respondents in the main proceeding before the lower court, the Registry should not blind-foldedly send the notice by Registered Post furnishing the name of the counsel for such respondent without proper address of such counsel and indicating only the court in which he practices or the main proceeding is pending. The notices shall be sent to such counsel to be served through Nazarath/Deputy Nazarath of the court below in which the main proceeding is pending, in case the proper address of the counsel is not found in the appeal memorandum/revision petition and the batta memo. Only in case wherein correct postal address of the legal practitioner appearing for the respondent before this court in the main proceeding pending in the lower court, the Registry can send the notice by Registered Post directly to the said address of the counsel. (e) The instructions issued to the Registry shall be mutatis mutantis apply to the appellants or petitioners in the appeal or revision, as the case may be, when private notice is also permitted by the court in addition to court notice. (f) In case Batta Memo has not been filed, the affidavit of service evidencing service of private notice shall not be entertained and acted upon. (g) If the above said rule is not followed in effecting service of notice privately when permission is granted to do so, such deviation from such rule shall make the court disregard the service of notice privately and hold that service has not been duly effected. The above instructions are to be scrupulously followed, both by the Registry and the Bar. The above instructions are to be scrupulously followed, both by the Registry and the Bar. This order shall be circulated to the concerned heads of the Registry and also to the various Bars of the Madras High Court for future guidance.