Patna High Court
Lal Bahadur Sah vs Ram Narain Nayak on 10 September, 1986
Equivalent citations: AIR1988PAT150, AIR 1988 PATNA 150, (1987) PAT LJR 301 (1987) BLJ 152, (1987) BLJ 152
JUDGMENT S.K. Jha, J.
1. This appeal is directed against the order dated 6th March, 1980 passed by the 2nd Additional District Judge, Muzaffarpur in Miscellaneous Case No. 22 of 1979by which the application for restoration under Order 41, Rule 19 of the Code of Civil Procedure (hereinafter referred to as the Code) for setting aside the order of dismissal for default dated 1-9-79 in Money Appeal No. 8 of 1977 has been rejected.
2. When this case was originally placed before a learned single Judge of this Court for hearing on 13-3-1986 the learned Judge, doubting the correctness of the decision of another single Judge in the case of Kishore Kumar v. Basudevo Prasad, 1977 BBCJ (HC) 319 : (AIR 1977 Pat 131) referred the appeal to the Division Bench for disposal.
3. The moot question for consideration in this case is, in my view, not testing the validity of the observations made in the case of Kishore Kumar Agrawal (supra) which was sought to be reinforced by learned counsel for the appellant by the case of Ram Sukhal Pathak v. Kesho Prasad Singh, 3 Pat LJ 218 : (AIR 1918 Pat 341) (SB) with specific reference to an observation made by one of the learned Judges whose difference with another learned Judge of this Court ultimately led the case to be heard by a Full Bench. That specific reference which has been pressed upon our attention finds place in a paragraph of the judgment of Jwala Prasad, J. differing from Mullick J. at page 221 of the report. I shall presently show that even this Full Bench decision cannot be pressed into service in aid of the appellant. Therefore, before expressing my opinion with regard to the correctness of the decision in Kishore Kumar Agrawal's case (supra), if necessary, it is relevant to give a short narration of the facts of the instant case.
4. The Money Appeal in question was in the first instance, filed before the learned District Judge, Muzaffarpur on 15-10-1977. On 28-3-1979 the appeal was transferred to the 3rd Additional District Judge and subsequently on 3-5-79 the case was transferred to the court of Sri Nawal Kishore Prasad Sinha, 2nd Additional District Judge, Muzaffarpur. Thereafter several dates, to wit 19-5-79, 13-6-79, 16-7-79, 30-7-79, 6-8-79, 18-8-79 and 1-9-79 were fixed one after the other for hearing the appeal. Ultimately when no one appeared on the last mentioned date i.e. 1-9-79 the appeal was dismissed for default as neither party had made any pairvi nor had any one chosen to appear on behalf of the appellant in spite of repeated calls.
5. On 24-9-79 the appellant filed a Misc. Case which was registered as Misc. Case No. 22 of 1979 in which the impugned order has been passed rejecting the appellant's application for restoration under Order 41, Rule 19 of the Code. The main ground taken by the appellant was that he had no notice of the transfer of the Money Appeal to the 3rd Additional District Judge nor had he any such notice, meaning no knowledge of the transfer to the court below which had passed the impugned order and, therefore, he was precluded from taking proper steps. Mr. Baidyanath Prasad No. 2, in all fairness to him, stated at the outset, that the client, namely, the appellant had nothing to do in this case as he had already entrusted the case to the Karpardaz and the counsel engaged by him and it being an appeal only the counsel had to argue it on merits.
6. The main ground taken by the appellant in the court below was that he had fallen ill on 26-8-79 and remained confined to bed till 2-9-79 during which period he was treated by Dr. B.N. Jha(A.W. 4). Thus he was prevented by sufficient cause from taking proper steps in the Money Appeal.
7. Before taking up the question with regard to 'notice' which is a subsidiary to the main question raised by the learned counsel for the appellant, I think it worthwhile to dispose of the main and primal point with regard to his illness. The court below has recorded a finding that the case of his illness from 26-8-79 to 2-9-79 did not appear to be correct. The appellant had not been able to file either the prescription or the vouchers/cash-memos with regard to the medicines purchased on such a prescription. On the question of illness only A.W. 2(Phudeni Ram), A.W. 3 (Surendra Prasad) and A.W. 4 (Dr. B. N. Jha) have deposed in the case in the court below. A.W. 2 is merely a labourer and he has stated that the appellant was suffering from fever for a week from 26-8-79. The court below has rightly expressed its real surprise of this witness's exactitude with regard to the date of illness of the appellant when he had failed to give the date of his own illness in the same year. Further-more, in his cross-examination he has stated that he had heard about the illness of the appellant from his son. Curiously enough, and for reasons best known to the appellant, the son has not been examined as a witness at all. Therefore, the evidence of A.W. 2 is not only inadmissible as being hearsay but is intrinsically not believable and the court below has rightly not relied upon the evidence of A.W. 2.
A. W. 3 is the Karpardaz of the case and he has admitted that he was doing pairvis in the appeal but he had tried even to conceal the filing of the attendance of the appellant but he was constrained to admit that the attendance was in his pen. What a manifest contradiction. The court below has, therefore, rightly observed that the evidence of A.W. 3 did not inspire any confidence and, in my view, it has rightly brushed it aside for cogent reasons. In so far as the evidence of the doctor (A.W. 4) is concerned he had himself admitted that he had examined the appellant on 26-8-79 and not ever thereafter. He had also admitted that he did not maintain a register. There was nothing on the record to suggest that he had any occasion to learn as to what had happened after 26-8-79. Therefore, the court below has gone on to say that if it was merely a case of fever then in the absence of any medical report to the contrary it would ordinarily be presumed that he may be suffering from fever for three or four days but in my view neither had any case been decided nor any evidence appraised on the basis of a mere conjecture and surmise. If the medical evidence would have been that A.W. 4 had examined the appellant ever after 26-8-79 and if he had been ill on 1-9-79, the mater would, perhaps, stand on a firm ground in favour of the appellant. Therefore, in my view, the court below is fully justified in observing that there is no evidence on record to ascertain as to what prevented the appellant from taking any steps in the Money Appeal on 1-9-79 which was the date fixed for the hearing of the appeal when the case was dismissed for default. Therefore, on the question of illness, I am in full agreement with the conclusion arrived at by the learned Additional District Judge that the appellant had failed on the evidence as add used by him to induce the court to come to a conclusion that he was not in a position to do any pairvi in this case on account of his illness on 1-9-79.
8. I have, however, stated hereinbefore that Mr. Baidyanath Prasad No. 2, learned counsel for the appellant has already accepted the position that the client had nothing to do in the matter and it was merely for the counsel to argue the case. The most pertinent question that arises is as to whether the appellant's counsel had any 'knowledge' of that particular date, namely, 1-9-79 as having been fixed for the hearing of the appeal. I am talking of 'knowledge' purposely and deliberately because that has a great bearing upon the question of 'notice' which is of secondary importance in this case and which has induced the learned single Judge to refer this case to a Division Bench for testing the correctness of an earlier single Judge decision of this Court as indicated at the outset. I equate 'notice' simpliciter with 'knowledge'. I find, it therefore, not necessary to decide that point of law in view of the facts of this case.
I find that the court below, after a fair appraisal of the evidence on record and the materials as borne out by the order-sheet in the appeal, has come to the conclusion that the appellant, his Karpardaz as well as his counsel had knowledge of the transfer of the case to the last transferee court before 1-9-79 and that they had also the knowledge that the case was fixed for hearing on 1-9-79. Once that finding is accepted, as I accept it to be so, the question of notice pales into insignificance. Issuance of notice is only a matter of procedure and has to be rigidly adhered to in cases where a party has no knowledge about such transfer and, therefore, then the principle of audi alteram partem is attracted. It has been well said many a time by the Supreme Court that the principles of natural justice are not embodied rules. What should apply to a given case must depend to a great extent on the facts of that case, the frame work of the law under which the enquiry is held and so on and so forth. In this regard the Supreme Court in the case of Hiranath Mishra v. The Princpal, R.M.C. Ranchi (1975) 1 SCC 805 : (AIR 1973 SC 1260) held, under the circumstances of that case, that the requirements of natural justice were fulfilled because the principles of natural justice were not inflexible and cannot be put into a strait-jacket of any rigid formula and the application of it may differ in different circumstances. Therefore, in the present case no question of notice arises at all and it is merely of academic importance.
9. In deference, however, to the submission made by learned counsel for the appellant with regard to the case of Kishore Kumar and Ram Sukhal Pathak (SB), (AIR 1977 Pat 131) and AIR 1918 Pat 341 (supra) I feel (in) duty bound to make a reference to those cases. In the case of Ram Sukhal Pathak, there was an adjournment on 16-7-1915 until 21st August, 1915 and on 21st August, the case being still before the District Judge, on the 9th August which was not a date fixed in the case, an order was made that the case should be transferred to the Subordinate Judge for disposal. In the order-sheet where the order appears there was, as usually is the procedure even today, a column for the signature of the parties or the pleaders, when necessary (underlining is mine for the sake of emphasis) and in the case of many of these orders that column is filled up with the signature of their parties or their pleaders. With regard to the order which was made on the 9th August, there was no signature in the column to show that the parties or his pleaders were present or the counsel was informed when the order of transfer was made and indeed as the case had been adjourned on the 16th of July, 1915 there was no reason why they should be under the impression that anything further will be done in the case until the date fixed for the hearing which was the 21st August. Therefore, it was held by Sir Dawson Miller, C.J. speaking for the Full Bench that :
"One is not surprised to find that there was apparently nobody present before the District Judge on behalf of the parties when he made the order transferring the case to the Subordinate Judge for disposal on the 9th August. The reason why it was so transferred, we are not told. On the 10th August the order for transfer having been received by the Subordinate Judge, he ordered that the case was to be put up on the 21st August, and on that date the case appears to have been called on. Neither party appeared and the reason given by the plaintiff, who is the appellant before us, is that he had no intimation that the case had been transferred to the Subordinate Judge, and although he was present on that date in the court of the District Judge, which is in the same building, I understand, as that of the Subordinate Judge, he had no idea that his case was to be taken up before the Subordinate Judge."
In these circumstances when the Subordinate Judge dismissed the suit for default it was held in the circumstances of that case that on a date not fixed in the case if it had been transferred by the District Judge to the Subordinate Judge without any intimation or notice to the party or his counsel, the order of dismissal could not be justified as a notice was a must in such cases. That is not the position in the instant case because as I have already held above agreeing with the court below that, the appellant had knowledge and obviously, there fore, his counsel had also the knowledge of transfer of the case to its file. In the case of Kishore Kumar Agrawal (supra) the transfer of the title suit in question was made by the District Judge on 11-2-74 which was the time allowed to the defendant to file a written statement by the trial court. Before 11-2-74, however, the District Judge, Munger, transferred the suit by an order dated 26-1-74, which again, was not a date fixed in the suit, to the Subordinate Judge, Jamui. This case stands on a firmer footing than the case with which the Full Bench was seised because in the Full Bench case the transfer was from one court to another court in the same building whereas in the case of Kishore Kumar Agarwal the transfer was made by the District Judge on 26-1-74 which was not a date fixed in the case to the Subordinate Judge at Jamui, a different place altogether. How could the client, his Karpardaz or his counsel be aware of the transfer of the case by the transferor court to a transferee court until a fresh notice was issued and duly served on the party. Therefore, it was held in the circumstances of that case that, it was incumbent to 'serve a notice' on the party aggrieved to give him 'knowledge' (underlining is mine for focussing the attention) about the transfer of the case on the facts and in the circumstances of that case. That may have been a good reason for setting aside an ex parte decree on 27-5-74 on which date the defendant-appellant of that case or his counsel was not even aware that the case had been transferred to the court of the Subordinate Judge, Jamui, in the absence of any notice to him by the transferee court at Jamui. The judgments of the learned single Judge in Kishore Kumar Agrawal's case (supra) and the Full Bench decision with regard to 'notice' may in appropriate cases be justified. The doubt with regard to the correctness of that decision expressed by the learned single Judge referring this case to the Division Bench is, however, of academic importance only as we are not called upon to pronounce that on the facts and in the circumstances of the instant case, a 'notice' was necessary. At best, I treat such observations in the two cases as obiter dicta in so far as this case is concerned. I have already held that the question of 'notice' arises where the party or his counsel has no 'knowlege'.
Only more so as, apropos this point it was not even canvassed at the Bar that even in spile of 'knowledge', a 'notice' was mandatory - as it would have been an exercise in futility.
10. For the reasons aforementioned, I am constrained to dismiss this appeal but without any costs.
S.S. Sandhawalia, C.J.
11. I entirely agree.