Uttarakhand High Court
Smt. Asha Rawal vs Sri Chaman Singh & Others on 16 March, 2020
Author: Manoj. K. Tiwari
Bench: Manoj K. Tiwari
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 2612 of 2018
Smt. Asha Rawal. .....Petitioner
Versus
Sri Chaman Singh & others. ...Respondents
Mr. Siddhartha Singh, Advocate for the petitioner.
Mr. S.K. Mandal, Advocate for respondent nos. 1 to 4.
Dated: 16th March, 2020
Hon'ble Manoj K. Tiwari, J.
By means of this writ petition under Article 227 of Constitution of India, petitioner has challenged the order dated 05.02.2018 passed by Civil Judge (Senior Division), Vikas Nagar in Misc. Case No. 03 of 2014 and also the judgment dated 05.07.2018 passed by learned Additional District Judge, Vikas Nagar in Civil Revision No. 5 of 2018.
2. It transpires that respondent nos. 1 to 4 jointly filed a suit (O.S. No. 316 of 2004) for cancellation of sale deed dated 26.02.2004 executed by respondent nos. 5, 6 & 7 in favour of the petitioner. Petitioner was joined as defendant No. 4 in the said suit. The said suit was filed in the year 2004 in the Court of Civil Judge (Senior Division), Dehradun and was registered as Original Suit No. 316 of 2004. Petitioner filed her written statement in the said suit on 20.01.2005. Subsequently, the said suit was transferred vide order dated 11.11.2008 to the Court of Additional Civil Judge (Senior Division), Dehradun. Again, the said suit was transferred to the Court of Civil Judge (Senior Division), Vikas Nagar vide order dated 02.09.2009.
23. The said suit was decreed ex-parte by Civil Judge (Senior Division), Vikas Nagar vide judgment dated 25.03.2011. When petitioner learnt about the ex-parte decree, she filed an application for setting aside ex-parte decree alongwith delay condonation application on 08.01.2014. The delay condonation application filed by the petitioner was rejected by learned Civil Judge (Senior Division), Vikas Nagar vide order dated 05.02.2018. Petitioner, thereafter, filed Revision Petition challenging the order passed by trial Court. The Revisional Court/ADJ, Vikas Nagar not only dismissed the Revision filed by the petitioner but also rejected petitioner's application under Order 9 Rule 13 CPC vide judgment dated 05.07.2018. Feeling aggrieved by these two orders, petitioner has approached this Court.
4. It is the contention of learned counsel for the petitioner that petitioner was not served with any notice regarding both the transfers i.e. from the Court of Civil Judge (Senior Division), Dehradun to the Court of Additional Civil Judge (Senior Division), Dehradun and, thereafter, to the Court of Civil Judge (Senior Division), Vikas Nagar. Learned counsel for the petitioner submits that although transferor Court had directed for issuance of notice regarding transfer of the suit to the defendants, including petitioner, however, no notice was served upon the petitioner regarding such transfer. Learned counsel for the petitioner has placed reliance upon Rule 89A of General Rules (Civil), which is extracted below:
"89 A. (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 3 transferred from that court to another, the former court shall record the order of transfer in the order sheet and get it signed by the 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.
(2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring court.
(3) Where the cases are transferred in a large number the courts from which they are transferred shall, besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be pasted on the notice board of the local bar association for information of the members of the bar and another copy to be pasted on the notice board of the court for information of the general public. It shall also Send to the other court along with the records of the transferred cases, a copy of the list (or relevant extract of it); the other court shall paste it on its own notice board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being pasted on the notice board of the bar association.
(4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer.
(5) In sub-rules (1) to (4) 'transfer' includes withdrawal of a case."4
5. Per Contra, learned counsel for respondent nos. 1 to 4 submits that the Court of Additional Civil Judge (Senior Division), Dehradun had passed an order on 26.05.2009, which provided that the case would be proceeded ex-parte against the defendants, therefore, the transferee Court i.e. Civil Judge (Senior Division), Vikas Nagar was justified in proceeding with the matter ex-parte and passing an ex-parte decree.
6. The contention made by learned counsel for respondent nos. 1 to 4 is bereft of merit.
7. Learned counsel for respondent nos. 1 to 4 has taken me through the order sheet of the trial Court. A perusal of the order dated 15.10.2009 passed by Civil Judge (Senior Division), Vikas Nagar indicates that the transferee Court had noted the presence of the plaintiffs. Learned counsel for respondent nos. 1 to 4 submits that, by the said order, the Court concerned had directed for issuance of notices regarding transfer of the case to the defendants, therefore, requirement of Rule 89-A was met. However, this order also indicates that transferee Court was satisfied that notice were not served upon the defendants till then, therefore, reliance upon the earlier order dated 26.05.2009 in defence of the impugned orders is clearly misplaced.
8. Learned trial Court has rejected petitioner's application filed under Section 5 only on the ground that transferor Court on 26.05.2009 had directed for proceeding ex-parte against the defendants. Since the suit was subsequently transferred to Vikas Nagar, therefore, it was incumbent upon the transferee Court to 5 ensure that notice regarding such transfer has been served upon the defendants. Deciding the suit ex-parte without following the mandate of Rule 89A(4) of General Rules (Civil) can't be said to be proper.
9. Hon'ble Allahabad High Court in the case of Akbar Hussain Vs. IXth Additional District Judge, Barielly and others, reported in 2000 (2) Allahabad Rent Cases 689, while dealing with a similar situation, has held as under:
"7. In view of the aforesaid provisions, before transfer, in case date is fixed by the District Judge, the intimation is to be given to the counsel for the parties, if they are represented, otherwise transferee court is required to issue notice to the parties regarding the date fixed for hearing. In the present case neither any notice was issued by the District Judge at the time of transfer of the case nor notice was issued by the transferee court to the petitioner as is evident from the order sheet which has been filed by the learned counsel for the petitioner alongwith the supplementary affidavit. Therefore, the petitioner could not get notice or knowledge of the proceedings in the court of Additional J.S.C.C. The court below has committed error which is apparent on the face of record in upholding the validity of the order passed by the trial court. The impugned orders, in view of the facts stated above, are wholly illegal and are liable to be quashed."
10. Similarly, in the case of Deepak Soni Vs. VIIIth Additional District Judge, Kanpur Nagar and others, reported in 2003 (53) ALR 656, Hon'ble Allahabad High Court has held as under:
6"6. Even though the conduct of the tenant petitioner is not above board and his anxiety to delay the proceedings is writ large on the face of the record, however, there is an apparent error in the orders passed by the Courts below rejecting the restoration application. Even otherwise, it is always in the interest of justice to decide the matter on merit unless defendant has been extremely negligent and his absence is deliberate. On the order sheet Daftari gave his report on 18.07.1998 to the effect that when he requested Sri Jaiswal, previous learned Counsel of the defendant to acknowledge the information of 12.8.1998, next date, by signing the order sheet, learned Advocate refused to do so on the ground that the tenant had taken away the file from him and he was no more required to represent the defendant. When Sri Jaiswal had already intimated that he was no more representing the defendant, then it was not proper for him to sign the order sheet of 12.8.1998. Even if a Counsel, after intimating that he was no more representing the client, makes the signatures over the order sheet regarding the transfer of case to another Court and fixing the next date it is no information to the client at least for the purposes of restoration application. Technically, unless Vakalatnama is withdrawn advocate continues to represent the client, however, this technicality cannot come in the way of restoration. Rule 89-A General Rule Civil cannot be said to have been complied with in letter and spirit, particularly spirit, if an advocate, makes his signatures on the order sheet after declaring that he was not representing the client. Even if it is held that technically notice of transfer of case was sufficient and Rule 89-A had been complied with still it can very safely be presumed that defendant must not had actually known the date and transferee Court. If an advocate intimates that client has taken away the file from him, he is in no position 7 to inform the client about the next date and transferee Court. Both the Courts below have not recorded any findings with regard to actual knowledge of defendant about the transfer of the case from JSCC to II Additional JSCC and knowledge of the date fixed there i.e. 24.8.1998, it was better for the JSCC/II Additional JSCC to have issued notice to the defendant about the transfer of the case and the date fixed in transferee Court after his previous Counsel, through, Daftari had intimated that client had taken way the file from him."
11. Hon'ble Allahabad High Court in the case of Sikandar Vs. Akhalak, reported in 2008 (2) ARC 231, while considering the import of Rule 89A of General Rules (Civil), has held as under:
"9. Thus in view of the aforesaid decision of this Court it has to be held that the Court was obliged to issue notice to the defendant in view of the provisions of Rule 89-A of the Rules. Both the Courts below, however, had not examined the issue in this perspective and have merely proceeded to examine whether the defendant had notice of the Suit on 23rd February, 2000 when the counsel had appeared. In my opinion the crucial date was 23rd May, 2001 on which date the case was transferred from the Court of Civil Judge (Junior Division), Muzaffarnagar to the Civil Judge (Junior Division), Budhana and since notice as required under Rule 89-A of the Rules was not given to the defendant, the application filed by him for setting aside the ex-parte decree was liable to be allowed in view of the decision of this Court in Ashtosh Shrotriya (supra)."
12. Similar view was expressed by Co-ordinate Bench of this Court in judgment dated 22.02.2007 8 rendered in the case of Dinesh Chandra Paliwal Vs. Swami Shukdevanand Trust and another, reported in 2007 (1) U.D. 480. Paragraph no. 6 of the said judgment is reproduced below:
"6. From a bare perusal of the events narrated above after the transfer of the revision to the Court of District Judge, Hardwar, it is very much clear that the counsel for the petitioner Sri Vipin Goel has made a statement in the Court on 2- 1-2007 that he had no instruction from the revisionist and once the District Judge had ordered for issue of notice to the revisionist-petitioner on 2-1-2007 fixing 15-1-2007, it was for the court to have examined whether the notice was sufficiently served upon the party. The order-sheet dated 13-2-2007 of the court of the District Judge Hardwar also shows that the counsel for the revisionist informed the court that he had no instruction from the revisionist and he wants to withdraw his Vakalatnama. However, the District Judge has made an observation in the order-sheet that the revisionist has information of the date fixed in the case and deliberately, the revisionist was not appearing before the court to linger on the proceedings. Learned counsel for the petitioner has hammered the observation made by the District Judge that the revisionist had full knowledge of the date fixed without ensuring service of notice upon the revisionist and the District Judge proceeded to decide the revision in the absence of the revisionist, which is against the principle of natural justice. The learned counsel has therefore urged that the revisionist had been denied reasonable opportunity to press his revision, therefore, the impugned order is liable to set aside. The submission of the learned counsel for the petitioner has some force. "9
13. The specific stand taken by the petitioner in her delay condonation application was that in the absence of any notice regarding transfer of the suit, she had no knowledge about the proceedings. She further contended that when she learnt about the ex-parte decree, she immediately filed the application under Order 9 Rule 13 CPC. This was sufficient explanation for the dely. However, learned trial Court erred in rejecting the delay condonation application by solely relying upon the order dated 26.05.2009 passed by the transferor court. Learned Revisional court also overlooked this vital aspect of the matter. Therefore, the impugned orders cannot be sustained in the eyes of law.
14. In such view of the matter, the writ petition is allowed. Impugned orders dated 05.02.2018 and 05.07.2018 passed by learned trial Court and revisional Court respectively, are set aside. The delay condonation application filed by the petitioner is allowed. Learned trial Court is directed to decide petitioner's application for setting-aside ex-parte decree filed under Order 9 Rule 13 C.P.C., on merits within six weeks from the date of production of certified copy of this order.
15. There will be no order as to costs.
(Manoj. K. Tiwari, J.) 16.03.2020 Arpan