Andhra HC (Pre-Telangana)
Koruprolu Atchaya And Others vs Bideshi Raghuram Singh on 14 June, 1994
Equivalent citations: AIR1995AP58, 1994(2)ALT363, AIR 1995 ANDHRA PRADESH 58, (1994) 2 APLJ 222, (1994) 2 ANDH LT 363, (1994) 2 CURCC 666, (1994) 2 LS 12
ORDER
1. This civil revision petition is directed against the order dated 6-9-1993 in I.A. No. 228 of 1993 in O.S. No. 65 of 1992, on the file of the Subordinate Judge, Pitha-puram.
2. The petitioners are the defendants in the suit O.S. No. 65 of 1992. They filed an application under O. 9, R. 13 of the Code of Civil Procedure seeking to set aside the ex parte decree passed by the Court below on 17-11-1992. Along with the said application they also filed I.A. No. 228 of 1993 seeking to condone the delay of 88 days in filing the application under 0.9, R. 13 of the Code of Civil Procedure. The grounds urged on behalf of the petitioners in the application that O.S. 'No. 65 of 1992 filed by the respondent was transferred by the District Court invoking the general power of transfer and withdrawal vested under S. 24 of the Code of Civil Procedure, from Peddapuram Sub-Court-to Pithapuram Sub-Court on administrative grounds. Pursuant to the order of the District Court transferring O.S. No. 65 of 1992 from Peddapuram Sub-Court to Pithapuram Sub-Court, it is stated, the learned counsel representing the petitioners herein in the Sub-Court, Peddapuram, returned the case file to the petitioners herein informing them about the transfer of the case O.S. No. 65 of 1992 to Pithapuram Sub-Court. It is further stated that the counsel informed the petitioners herein that the date or hearing would be intimated to them by the Pithapuram Sub-Court and as such they were not aware of the fact of the case being posted in Pithapuram Sub-Court.
3. While the matter stood thus, the petitioners herein came to know about the case being decided by the Pithapuram Sub-Court in the month of March, 1993, through third parties who are close to the respondent. On knowing this, the petitioners' father went to Pithapuram Sub-Court on 12-3-1993 and made enquiries with the advocate. He came to know that the petitioners herein were set ex parte by the Court and an ex parte decree was passed on 17-11-1992. Since the petitioners herein were under the impression that they would be sent notices by the transferee Court, i.e., the Pithapuram Sub-Court, they could not engage a counsel to defend their interest in the matter and contest the matter in the Pithapuram Sub-Court. It is only after knowing about the ex parte order, they engaged a counsel and immediately, an application under O.9, R. 13 of the Code of Civil Procedure was filed seeking to set aside the ex parte decree dated 17-11-1992. Along with the said application a petition under S. 5 of the Limitation Act for condonation of delay of 88 days was also filed: The lower Court, however, refused to accept the grounds stated in the affidavit for condoning the delay and dismissed the application holding that no justifying grounds have been stated in the application filed for condonation of delay. Accordingly, I. A. No. 228 of 1993 was dismissed. Aggrieved by the said order the present revision has been filed.
4. Mr. N. V. Ranganadham, counsel appearing on behalf of the respondent herein justified the action of the lower Court in dismissing the application filed under S. 5 of the Limitation Act by contending that R. 63 of the Civil Rules of Practice makes it obligatory on the part of the transferor Court, i.e., the Sub-Court, Peddapuram, in the present case, to issue notices to the counsel or the parties intimating the date of their appear-.ance before the transferee Courl. It is argued that in the instant case the transferor Court has rightly issued notice to the counsel appearing on behalf of the petitioners herein, who are defendants in the suit, intimating the date of their appearance before the Pitha-puram Sub-Court, the transferee Court. Therefore, it is contended, that when once the parties have knowledge as to the posting of the case, in terms of R. 63 of the Civil Rules of Practice, it is not open to the parties to take a stand that they had no knowledge as to the posting of the case. Under these circumstances, it is contended, that the lower Court has rightly dismissed the application.
5. For the purpose of setting the dispute at rest, R. 63 of the Civil Rules of Practice is traced out as under:
"Application for transfer:-- An application for transfer of a suit, appeal or other proceeding from one Court to another shall be made by Original Petition entitled in the matter of the pending suit, appeal or other proceeding as in Form No. 17. Notice of the application in Form No. 18 shall be issued and served on the other parties to the suit, appeal or other proceeding.
Provided that if under S. 24 of the Code, the District Court trasfers a suit, appeal or other proceeding of its own motion and without giving notice in the first instance, it shall record in writing its reasons for dispensing with such notice and shall direct the court from which it has been transferred to intimate the parties or their Advocates about the transfer and the date on which they should appear before the court to which it has been "transferred."
6. The rule contemplates that when a suit is transferred on administrative grounds by the District Court invoking the general power of transfer and withdrawal under S. 24 of the Code of Civil Procedure, the transferor Court has to issue notice either to the counsel who is on record or to the parties, intimating the date of their appearance before the transferee Court. It is in that context this rule is framed enabling the parties to know the date of hearing before the transferee Court in advance so that they can prepare themselves and appear on the date of hearing so fixed by the transferor Court before the transferee Court. The endeavour though laudable, in my view, is not sufficient to remedy the difficulties of the parties who are not informed by their counsel representing them before the transferor Court for some reason or the other, if notice is given to counsel only. In the absence of notice also being issued to the parties by the transferor Court as contemplated under R. 63 of the Civil Rules of Practice, even if notice is issued to the counsel appearing on their behalf, if he fails to intimate the date of their appearance before the transferee Court, it would cause hardship to the parties if they fail to appear on the date so fixed for their appearance before the transferee Court. It is, therefore, in order to mitigate the hardships of the litigants, I am of the view, that the rule so contemplated shall read as under :--
"Application for transfer:-- An application for transfer of a suit, appeal or other proceeding from one court to another shall be made by original petition entitled in the matter of the pending suit, appeal or other proceeding as in Form No. 17. Notice of the application in Form No. 18 shall be issued and served on the other parties to the suit, appeal or other proceeding.
Provided that if under S. 24 of the Code, the District Court transfers a suit, appeal or other proceeding of its own motion and without giving notice in the first instance, it shall record in writing its reasons for dispensing with such notice and shall direct court from which it has been transferred to intimate the parties and their Advocates about the transfer and the date on which they should appear before the court to which it has been transferred."
This would redeem the hardships faced by the parties in a contingency of this nature when the counsel appearing on their behalf fails to intimate the date of their appearance in the transferee Court.
7. In the instant case, as no notice was issued to the petitioners herein, the petitioners had no knowledge as to the exact date of their appearance before the transferee Court. In the circumstances, I hold that the petitioners herein have shown sufficient reasons seeking to condone the delay of 88 days in filing the application under 0.9, R. 13 of the Code of Civil Procedure seeking to set aside the ex parte decree.
8. Accordingly, the civil revision petition is allowed and the impugned order is set aside. Consequently the Court below is directed to dispose of the application filed under O. 9, R. 13 of the Code of Civil Procedure on merits.
9. Though the counsel appearing on behalf of the respondent insists imposition of costs on the petitioners, I am afraid I cannot agree with such insistence by the counsel for the respondent, since I have held that R. 63 of the Civil Rules of Practice which is the centre of controversy in this revision should be read in a different way and as such his request is rejected. No costs.
Revision allowed.