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2018 DIGILAW 1045 (ALL)

SAVITRI DEVI v. STATE OF U. P.

2018-04-27

SIDDHARTHA VARMA

body2018
JUDGMENT : Hon'ble Siddhartha Varma, J. Heard learned counsel for the parties and perused the record. Against an order of the Collector/District Magistrate, Azamgarh dated 28.06.2007 by which a deficiency in stamp duty to the tune of Rs. 17,180/- was found the petitioners had filed a revision. This revision was filed before the Court of Commissioner, Azamgarh Division Azamgarh. On 05.06.2009, the revision was transferred to the Court of Ist-Additional Commissioner, District-Azamgarh Division Azamgarh. When the case was being transferred a date was also fixed for 19.06.2009. On 19.06.2009 however, in the absence of the petitioner the Revision was dismissed in default. For recalling of the order dated 19.06.2009, the petitioners filed a Restoration Application on 04.07.2009. However, the application was rejected on 12.03.2010 saying that the petitioners had not been able to establish that they were not in the known of the order dated 05.06.2009. Aggrieved by the passing of the orders dated 12.03.2010 and 19.06.2009, the instant writ petition has been filed. Learned counsel for the petitioner has submitted that a perusal of the application dated 04.07.2009 makes it clear that the petitioners were not aware of the order dated 05.06.2009 and, therefore, they could not present themselves on 19.06.2009. They had no knowledge about the order dated 05.06.2009 as the petitioners had not attended the Court on that date on the instruction of their counsel that they were not required to be present before the Court. Learned counsel for the petitioners has submitted that when the case was being transferred to the Court of the Additional Commissioner then if the parties were not present on that date, notices ought have been sent to the parties informing them about the date which had been fixed for hearing. Learned Counsel submits that even the General Rules (Civil) it is provided that if a particular case is transferred from one Court to another, a notice is to be compulsorily sent to the parties. Further learned counsel submits that in the event when the parties are absent on the first date before the Court where the case had been transferred then also the Court itself should issue notices. Further learned counsel submits that in the event when the parties are absent on the first date before the Court where the case had been transferred then also the Court itself should issue notices. Learned counsel, therefore, submits that in the instant case the Court where the case was transferred i.e. the Court of the Ist-Additional Commissioner should have sent a notice to the petitioners regarding the fact that the case was transferred to his Court and only, thereafter, should have proceeded with the matter. Even otherwise learned counsel for the petitioners has submitted that when the application was filed within the prescribed period of limitation then the recall application should have been allowed and a lenient view should have been taken by the Commissioner and it should have been in favour of deciding the case on merits. Learned Standing Counsel in reply has, however, submitted that on 05.06.2009 when the case was being transferred, the transferring Court had already fixed a date for the Court, in which the case was being transferred to. He further submits that on 05.06.2009, when the case was not taken up, the counsel must have looked into the order sheet and must have come to know that the case had to be taken up on 19.06.2009 in the Court where the case was transferred. Having heard the learned counsel for the parties I am of the definite view that when the case was transferred notices should have been sent to the parties, specially when on the first date the parties were not present. What is more the Court should on the fixed dated have refrained from proceeding with the case on merit. In the instant case when the parties were not present on 19.06.2009, in the Court where the case was transferred notices should have been issued to the parties. It cannot be presumed that the parties would know that the case had been transferred even if there was an order of the Court which had transferred the case. I am even otherwise of the view that the Revisional Court should have decided the case on merits and should not have dismissed the case ex-parte. Under such circumstances, the orders dated 12.03.2010 and 15.06.2009 passed by the Additional Commissioner are quashed. The Revision is restored to its original number. I am even otherwise of the view that the Revisional Court should have decided the case on merits and should not have dismissed the case ex-parte. Under such circumstances, the orders dated 12.03.2010 and 15.06.2009 passed by the Additional Commissioner are quashed. The Revision is restored to its original number. The Revision shall now be heard on merits and shall be decided within a period of two months from the presentation of a certified copy of this order. Accordingly, the writ petition is allowed.