Patna High Court
Kishore Kumar Agrawal vs Basudeo Prasad Gutgutia And Anr. on 19 November, 1976
Equivalent citations: AIR1977PAT131, 1978(26)BLJR573, AIR 1977 PATNA 131
JUDGMENT B.P. Jha, J.
1. The defendant-appellant preferred the appeal under Order XLIII, Rule 1 (d) of the Code of Civil Procedure.
2. The relevant facts are these:--
The plaintiff-respondents filed Title Suit No. 127 of 1972 before the Subordinate Judge, Monghyr. On 10th January, 1974, he defendant-appellant entered appearance in the suit before the trial court and he applied for time to file his written statement. The trial court allowed time to the defendant to file written statement till 11-2-1974. Before 11-2-1974 the District Judge, Monghyr transferred the suit by an order dated 26-1-1974 to the Subordinate Judge, Jamui.
3. The short point involved in this case is: whether the transferor court was required to serve notices on the party about the transfer of the case in the facts and circumstances of the case
4. In my opinion, the answer is in the affirmative. In every case of transfer the transferor court is duty bound to send a separate notice to each party in respect of the transfer of the case. The transferor court is required to send the notices for the simple reason that the party has to appoint a new lawyer in the transferee court. It is for this reason it is incumbent upon the transferor court to send a notice of transfer to each party in a suit. In the present case, the suit was heard ex parte on 27-5-1974 by the learned Subordinate Judge, Jamui and he passed an ex parte decree. On 25-7-1974 the defendant-appellant filed an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree on two grounds, namely (1) that he could not appear on account of his illness and (2) that he had no notice about the transfer of the case. The trial Court disbelieved ground No. 1. Hence, I shall not interfere with the findings arrived at by the trial court. The trial court did not discuss about ground No. 2 though this ground was raised in the petition filed before the trial court. In appeal learned counsellor the appellant contends that the appellant had no notice of the transfer of the case. This fact has not been denied by the respondents in the counter-affidavit.
5. In view of the observations made above I set aside the ex parte decree dated 27-5-1974 and direct the trial court to finish the trial within three months from the date of receipt of the record after serving notices on the parties.
6. In the result the appeal is allowed and the ex parte decree dated 27-5-1974 is set aside. The parties will bear their own costs in this appeal.