Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 2327 (ALL)

Poonam Gupta v. Anil Agarwal

2018-11-15

SIDDHARTHA VARMA

body2018
JUDGMENT : 1. This writ petition has been filed challenging the appellate order dated 18.7.2018 by which the Restoration Application for restoring the Appeal after recalling the order dated 18.11.2017 was rejected and also for recalling the order dated 18.11.2018 by which the appeal was allowed ex-parte. A further prayer has been made that the appeal be restored to its original number and the same be heard on merits after hearing both the parties. 2. The respondent-landlord filed a Release Application being P.A. Case No.98 of 2014. This application was contested by the petitioner-tenant and the Release Application was rejected on 25.4.2017. An appeal was filed thereafter being Appeal No.80 of 2017 by the respondent-landlord. On 5.5.2017, notices were issued to the tenants by the Appellate Court for their appearance on 1.7.2017. On 1.7.2017, the Appeal, without the presence of the respondent-landlord, was posted for hearing for 7.7.2017 and on 7.7.2017 the case was transferred from the Court of the District Judge, Agra to the Court of XVII Additional District Judge, Agra where the case was finally heard and allowed on 18.11.2017. 3. The petitioners-tenants, upon coming to know about the order of the Appellate Court dated 18.11.2017, filed an application for recalling the same on 18.12.2017 which came to be rejected on 18.7.2018. 4. Learned counsel for the petitioners has submitted that the Court to which the Appeal was transferred i.e. the XVII Additional District Judge ought to have put the respondent in the appeal i.e. the tenant-petitioner in this case, to notice and thereafter should have heard the matter. Learned counsel has further submitted that the District Judge fell in error in holding, on an earlier date, that the petitioners were duly served. 5. Since learned counsel for the petitioners relied upon Rule 89A of the General Rules (Civil), 1957 (hereinafter referred to as the ‘Rules’), the same is being reproduced here as under : “Procedure to be followed on transfer or withdrawal of cases:- (1)”When a case, i.e., a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed is transferred from that 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.” 6. Having gone through the records, this much is certain that an endeavour should have been made by the Court below to see that the parties are put to notice. Learned counsel relying upon sub-rule (4) of Rule 89-A of the Rules submits that there was no satisfaction of the Court recorded that the parties had been put to notice and that the Court to which the case was transferred only because of the fact that the tenants had not put in appearance before the Court from which the case was transferred, proceeded to hear the case. This, learned counsel for the petitioners, submits was apparently erroneous. 7. Be that as it may, this Court is also of the view that the case should be decided after the parties are heard. When the tenants-petitioners were making an endeavour to get the ex-parte order recalled and were also ready to argue the case then it would have been in the fitness of things that the Appellate Court should have recalled the ex-parte and should have heard the matter on merits. 8. Learned counsel for the respondent-landlord opposed the prayer of the petitioners. However, he could not dispute the fact that it is always in the interest of justice that a case is argued, heard and decided on merits. However, learned counsel for the respondent submits that since the parties have appeared, they may appear before the Appellate Court and the Appeal may itself be decided within a stipulated period of time. 9. Under such circumstances, the order dated 18.11.2017 passed by the Additional District Judge (Court No.17), Agra and the order dated 18.7.2018 passed by the Additional District Judge (Court No.17), Agra are recalled. The Appeal is restored to its original number and a direction is being issued that the Appeal be heard and decided within a period of four months from the date of presentation of a certified copy of this order. 10. The writ petition is, accordingly, allowed.