Karnataka High Court
B. Sundara Gowda And Ors. vs Martin D'Souza on 2 August, 1988
Equivalent citations: AIR1989KANT207, ILR1989KAR1851, 1988(3)KARLJ447, AIR 1989 KARNATAKA 207, ILR 1989 KANT 1851
ORDER
1. There is a technical error in the impugned order. The revision petitioners who were the plaintiffs in the trial Court are aggrieved by the order passed by the Civil Judge, Mangalore, allowing the appeal filed by the defendant in O. S. No. 48/86 on the file of the Principal Munsiff, Puttur. The Principal Munsiff, Puttur had declined to pass an order on I.A. II in the said suit holding that the same shall be disposed of along with the suit. Aggrieved by the same, the defendant preferred an appeal before the Civil Judge, Puttur. But, however, when the matter was pending before the Civil Judge, Puttur, the case was withdrawn by an order made by the District Judge, Mangalore suomotu and directed to be heard by the Civil Judge, Mangalore. Counsel for defendant- appellant appeared before the transferee Court and the Counsel for plaintiffs-respondents failed to appear. In that circumstance, an order came to be passed remanding the matter to the Munsiff, Puttur directing him to dispose of I.A.II. Against the said order the plaintiffs respondents have f fled this revision inter alia contending that they had neither notice of the transfer nor an opportunity of being heard by the learned Civil Judge at Mangalore, which was the transferee Court.
2. A perusal of the order sheet, shows that the order directing transfer of the suit was made on 27-10-1987. The records were therefore sent to the transferee Court and the case was called there on 12-11-1987. On 12-11-1987 neither of the parties was present. It was adjourned to 5-12-1987. Again neither of the parties was present and the Court adjourned the case to 20-1-1988. On that date again none of the parties was present and the case was adjourned finally to 30-1-1988 for arguments. On that date the appellant defendant was represented by his Counsel while the Counsel for respondents- plaintiffs was absent. Case was adjourned again to 6-2-1988. On that date Counsel for appellant was not ready and it is not known from the order sheet whether the Counsel for respondents was present or not. However, case was adjourned to 8-2-1988 and on that date appellant's counsel and respondent's Counsel were not present, and judgment was passed. The order of the Munsiff, Puttur, pased on 5-6-1987 stating that I.A.II will be disposed of along with the suit was set aside and he was directed to dispose of I.A.II within one month from the date of the order i. e. 8-2-1988. If that has been given effect to, then this petition is really superfluous. But, on 5-4-1988 this court had issued stay and it was submitted at nothing was done therafter.
3. I find no merit in this petition.
4. A suo moto transfer by the High Court or District Court under S. 24 of the Code of Civil Procedure does not call for issuance of notice to parties. It is only when the transfer is to be made on application by either of the parties to a suit notice is required to be given and the matter heard and then a transfer order made. There is no dispute that in the instant case a suo moto transfer was made by the District Judge, Mangalore. Therefore, revision petitioners were not entitled to notice. I have extracted in detail the proceedings after the records were received in the transferee Court. While for three hearings both the sides were not present, for the fourth hearing the appellant's Counsel was present, which goes to establish that apparently he had made enquiries and had learnt about the transfer. The transferee Court never caused any notice to either of the parties till the disposal of the appeal. The plaintiffs respondents remained absent and it goes to prove that for a period of three months neither they nor their Counsel made any enquiry at the Court of the Civil Judge. Puttur about the fate of the appeal. If that is the position, if an order was made without affording an opportunity to the petitioners, the petitioners themselves are to blame by and large. However, I should not fail to observe that while the District Judge may not issue notice when he directs a transfer suo moto under Sec. 24 C.P.C. from one Court to another, the transferee Court is bound to issue a Court notice to the parties of the fact of transfer calling upon the parties to appear before the transferee Court on the specified date. The onus of enquiry cannot be left entirely to the parties particularly when the records themselves have been removed from one Court to another.
5. In the instant case, such a notice was not issued to either of the parties. If there was any order adverse to the interests of the plaintiffs then this Court would have interfered with the order on the ground that there was an error committed by the lower appellate Court and that no opportunity was given to the plaintiffs-respondents to address arguments on the appeal filed by the defendant. Now, as the matter is remanded to the Munsiff directing to dispose of I.A.II, the plaintiffs have opportunity to address arguments on I.A.II. Therefore, no injustice is caused by the order. Therefore, this Court in its discretion declines to interfere with the order under revision.
6. It was however contended in this Court by the plaintiffs that there was nothing for the lower appellate Court to entertain byway of appeal because there was no order passed on I.A.II. The learned Counsel is in error in making that submission. The fact that the Munsiff made an order stating that I.A.II will be disposed of along with the suit was an order made declining to exercise jurisdiction vested in him under Order 38, Rules 1 and 21 of C.P.C. Therefore, there was failure to exercise jurisdiction vested in the Court and as such that order directing disposal of I.A.II along with the suit was an appealable order in terms of Order 43 of C.P.C.
7. Revision is dismissed for the reasons given.
8. Revision dismissed.