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2021 DIGILAW 332 (RAJ)

Shivcharan Lal v. Pappu Khan

2021-02-10

PRAKASH GUPTA

body2021
JUDGMENT 1. This writ petition has been filed by the petitioners-plaintiffs (for short, 'the plaintiffs') against the order dated 25.9.2019 passed by Addl. District Judge, Bari (for short, 'the Appellate Court') in Civil Misc. Appeal No. 6/2016, whereby the appellate Court allowed the appeal filed by the respondent-defendant no.1 Pappu Khan and set-aside the order dated 18.5.2016 passed by Gram Nyayalaya, Basedi, Distt. Dholpur. 2. Facts of the case are that the plaintiffs filed a suit against the defendants for permanent injunction and removal of encroachment in the Court of Civil Judge, Bari (for short, 'the trial court'), where the defendants did not appear and resultantly ex-parte proceedings were drawn against them on 19.10.2000.Subsequently the defendants filed an application under Order 9 Rule 7 CPC, which was allowed and ex-parte proceedings were set-aside vide order dated 15.10.2003. Thereafter the defendants filed their written statement and the trial court framed the issues. Thereafter the trial court recorded the evidence of the plaintiffs on 17.11.2010. In the meantime, on 26.10.2010, District Judge, Dholpur directed to transfer the case alongwith other cases to Gram Nyayalaya, Basedi. Accordingly, on 15.11.2010, the case was transferred from the Court of Civil Judge, Bari to Gram Nyayalaya, Basedi and on the next date i.e. on 18.11.2010, the case was listed in the said court, but on that date, neither the plaintiffs nor their advocate, nor defendants and nor their advocate appeared before Gram Nyayalaya, Basedi. On that day, Gram Nyayalaya posted the matter for 23.12.2010 for passing the appropriate order. On 23.12.2010, plaintiffs' advocate was present before Gram Nyayalaya, Basedi, but the defendants or their advocate remained absent, as such the matter was adjourned to 20.1.2011. On 20.1.2011, again neither defendants nor their advocate was present before Gram Nyayalaya, Basedi, therefore, ex-parte proceedings were drawn against them and vide judgment dated 10.2.2011, suit was partly decreed ex-parte. The defendants filed an application under Order 9 Rule 13 CPC for setting aside the said ex-parte judgment and decree dated 10.2.2011. An application under Section 5 of the Limitation Act was also filed for condonation of delay. The plaintiffs filed reply to the said applications. Gram Nyayalaya, Basedi vide its order dated 18.5.2016 dismissed the application under Order 9 Rule 13 CPC. The defendant no.1 filed an appeal before the Appellate Court. An application under Section 5 of the Limitation Act was also filed for condonation of delay. The plaintiffs filed reply to the said applications. Gram Nyayalaya, Basedi vide its order dated 18.5.2016 dismissed the application under Order 9 Rule 13 CPC. The defendant no.1 filed an appeal before the Appellate Court. The Appellate Court vide its judgment dated 25.9.2019 allowed the appeal and set-aside the order dated 18.5.2016 passed by Gram Nyayalaya, Basedi subject to payment of cost of Rs. 3000/-. Hence, this writ petition. 3. Learned counsel for the plaintiffs submits that after initiation of ex-parte proceedings, the matter was sent for settlement in Lok Adalat. The notices of Lok Adalat were sent by Gram Nyayalaya, Basedi to the plaintiffs and the defendants and they were served on both the parties, but the defendants did not appear before the Lok Adalat. In such circumstances, Gram Nyayalaya, Basedi rightly decreed the suit ex-parte vide judgment dated 10.2.2011. The defendants filed the application under Order 9 Rule 13 CPC, which came to be dismissed vide order dated 18.5.2016. However, on filing the appeal there against, the appeal has been allowed and the order dated 18.5.2016 passed by Gram Nyayalaya, Basedi has been set-aside, despite the fact that the cause for non appearance, as disclosed by the defendants, was not sufficient for setting aside ex-parte decree. He further submits that according to Section 24 CPC, District Judge can transfer cases from one court to another court by a common order and it is not necessary for the Court to issue summons / notices again to the respective parties in each and every case. Only a list of the transferred cases may be affixed in the court premises for information and that is sufficient notice. In the instant case, notice was affixed in the court premises and a copy of the notice was sent to Bar Association, Bari. However, the learned appellate court has committed material illegality while setting aside the order passed by Gram Nyayalaya, Basedi. On this count, the impugned judgment dated 25.9.2019 passed by the Appellate Court is liable to be quashed and set-aside. 4. Heard. Considered. 5. It is admitted fact that the suit was filed in the Court of Civil Judge (Jr. Division), Bari, District Dholpur. On this count, the impugned judgment dated 25.9.2019 passed by the Appellate Court is liable to be quashed and set-aside. 4. Heard. Considered. 5. It is admitted fact that the suit was filed in the Court of Civil Judge (Jr. Division), Bari, District Dholpur. On 27.9.2010, although learned counsel for the parties were present and the matter was adjourned to 17.11.2010 for cross-examination of the plaintiffs, but in the meanwhile in compliance of the order dated 26.10.2010 passed by District Judge, Dholpur, vide order dated 15.11.2010, the matter was transferred to the Court of Nyayadhikari, Gram Nyayalaya, Basedi. On the said date, i.e. on 15.11.2010, neither the plaintiffs nor defendants were present nor their respective advocates were present. In this way, they were not having any knowledge with regard to transfer of the case. Neither any notice was given to them nor anything was brought on record to show that a copy of the notice was sent to the Bar Association, Badi and/or pasted on the notice board of the court of Civil Judge (Jr. Division), Basedi. For this reason, on 18.11.2010 when the matter was taken up by Nyayadhikari, Gram Nyayalaya, Basedi, Dholpur, again neither plaintiffs appeared nor defendants appeared nor their respective advocates appeared. Resultantly, ex-parte proceedings were drawn against them on 20.1.2011 and ex-parte judgment and decree came to be passed. This would be fortified from the fact that the respondents-defendants mentioned in the application that on 2.7.2011 when the plaintiffs informed about passing the ex-parte judgment and decree, they came to know about it and immediately thereafter applied for certified copy of the orders and filed the application under Order 9 Rule 13 CPC alongwith the application under Section 5 of the Limitation Act. 6. So far as the notice for Lok Adalat sent by Taluka Legal Services Authority was concerned, the appellate court observed that although the same was issued to the defendants and reported to have been served on their relative, but the relationship of the respondents-defendants with the person who received the notice was not mentioned. In this view of the matter, service of notice for Lok Adalat sent by Taluka Legal Services Authority was not treated as sufficient. 7. As per the averments made in the petition, in the year 2010, State Government established many Gram Nyayalayas and the power to transfer the case was given to District Judges. In this view of the matter, service of notice for Lok Adalat sent by Taluka Legal Services Authority was not treated as sufficient. 7. As per the averments made in the petition, in the year 2010, State Government established many Gram Nyayalayas and the power to transfer the case was given to District Judges. In this view of the matter, it cannot be said that the case was transferred suo-moto by the District Judge and rather on the basis of directions of the superior authority, the case was transferred. 8. The cause for non appearance of the defendants was sufficient cause, more so in view of the fact that where cases are transferred by virtue of general order of transfer for various reasons, one of them may be creation of new court, many counsel don't shift their practice to the station where cases are transferred or new court is established and the cases remain unattended. 9. This writ petition has been filed under Article 227 of the Constitution of India. The power under Article 227 of the Constitution is to be exercised in cases of jurisdictional error, apparent perversity, patent illegality or manifest injustice, which is not the situation here in this case. 10. For the aforesaid reasons, I find no force in this writ petition and the same being bereft of any merit, is liable to be dismissed, which stands dismissed accordingly.