Andhra Pradesh High Court - Amravati
Kandukuri Pakkeramma Alias Radha vs Kandukuri Pyari And 3 Others on 11 October, 2022
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CIVIL REVISION PETITION No.1153 of 2018
ORDER:
The plaintiff before the learned trial Court has filed this revision under Section 115 C.P.C. questioning the correctness of order dated 07.09.2017 of learned Additional Senior Civil Judge, Kadapa in I.A.No.2977 of 2016 in O.S.No.397 of 2010.
2. Despite notices to respondents, none appeared. From the record that is placed before this Court, it is seen that the present revision petitioner filed O.S.No.397 of 2010 seeking for partition of plaint schedule properties in equal measure and one such share shall be given to plaintiff. The defendants submitted their written statements and issues in the said suit were settled on 01.04.2013 and the matter went for trial. PW.1 gave his evidence in chief and got exhibited his documents on 13.06.2013. However, there was none attending to face cross- examination despite several adjournments and conditional orders, the trial Court instead of closing the evidence of PW.1, chose to dismiss the suit for default on 19.06.2015. Thereafter, the plaintiff filed I.A.No.588 of 2015 to set aside that dismissal order. The respondents therein, who are defendants in the suit, did not choose to file their counters and they were set ex parte. However, during the subsequent phase, since the petitioner in 2 Dr. VRKS, J C.R.P.No.1153 of 2018 I.A.No.588 of 2015 failed to prosecute the application and since none was appearing for her that petition was dismissed. It seems that subsequently the petitioner once again filed I.A.No.2977 of 2016 in O.S.No.397 of 2010 under Order IX Rule 4 C.P.C. seeking to set aside the order that dismissed the suit for default. It is that application on contest that was dismissed by the learned trial Court by the impugned order, forcing the plaintiff to come up with this revision.
3. The papers placed before this Court could show that the petition, counter and the impugned order in I.A.No.2977 of 2016 in O.S.No.397 of 2010. In that petition, it is stated that the suit was pending before learned Principal Senior Civil Judge, Kadapa and the matter was posted to 08.06.2015 and on that day the Court clerk informed that the suit would be transferred to Additional Senior Civil Judge, Kadapa under notice to her. However, nothing transpired for certain days and thereafter, it came to light that the suit was transferred to the learned Senior Civil Judge, Kadapa and there it was dismissed for default. It is stated that the transfer was not made with due notice to parties and application to set aside was also dismissed without informing her about the transfer of the suit. It is in those circumstances, alleging that there is violation of 3 Dr. VRKS, J C.R.P.No.1153 of 2018 procedure and principles of natural justice, the petitioner filed I.A.No.2977 of 2016. The counter filed by the respondents therein who are defendants in the suit referred to the petition mentioned allegations and denied them as incorrect and stated that it is for the party or his lawyer to vigilantly pursue the litigation and blame cannot be thrown on a clerk of a Court and instead of being present in the Court, she allowed the suit to be dismissed and there are no valid grounds to allow the petition.
4. After hearing both sides and after considering the material on record, learned Senior Civil Judge, Kadapa passed the impugned order. One would normally expect that the order in I.A.No.2977 of 2016 could certainly narrate the facts mentioned in that petition and the facts mentioned in the counter. However, the impugned order does not contain any reference about transfer of case from one Court to other Court and the absence of notice of transfer to the parties, which is alleged in the petition. It simply says that there was 106 days delay in presenting I.A.No.2977 of 2016 and the only reason urged is that the party was out of station and that was found not satisfactory and therefore, dismissed the petition. Thus, a reading of the impugned order gives an impression that the delay in representation of the petition was not accepted by the 4 Dr. VRKS, J C.R.P.No.1153 of 2018 trial Court. The contents of the order stand against the material facts alleged in the petition and the counter. Thus, the order does not match with the averments in the petition and counter.
5. Delay in representation is a matter between Court and the party filing the petition. If I.A.No.2977 of 2016 is taken as correct, then the entire order certainly does not relate to it and on that ground itself the impugned order has to be set aside.
6. Learned counsel for revision petitioner is unable to make any submission about the correctness or otherwise of various petitions and their numbers filed in the trial Court. However, one submission made by the learned counsel for revision petitioner which finds place in the petition filed before the trial Court is that the suit was transferred from Principal Senior Civil Judge Court to Additional Senior Civil Judge Court and the transferee Court failed to give any notice and prior to the transfer there was no hearing thereby making it unknown to the parties that the suit was transferred from one Court to the other. It is for that reason in the transferee Court plaintiff could not appear and prosecute her case. A reading of the counter filed in I.A.No.2977 of 2016 does not say that a notice of transfer was given to both sides or that the transferee Court 5 Dr. VRKS, J C.R.P.No.1153 of 2018 informed the parties or the counsel about the dates of adjournment of the proceedings. Thus, the substance of the allegations mentioned in the petition shall be accepted as correct. Rule 63 of the Andhra Pradesh Civil Rules of Practice and Circular Orders, 1980 provide the mechanism when a case is transferred. It provides principles about transfer that is made on petition filed by the parties and about transfer made by the District Court in exercise of its powers under Section 24 C.P.C. The theme of this rule categorically discloses that the advocates or their parties should be informed of the date on which they should appear before the transferee Court. With the material that is available on record, this Court is constrained to accept the submission of the learned counsel for revision petitioner that this principle is violated in this case. In such circumstances, the inevitable conclusion is that the suit that was dismissed for default was an incorrect order being passed by a transferee Court without notice to parties and therefore, such order cannot be sustained. The prayer in the petition in I.A.No.2977 of 2016 as well as in this revision is to set aside the order dated 19.06.2015, which dismissed O.S.No.397 of 2010 for default and hence that prayer shall be allowed. 6
Dr. VRKS, J C.R.P.No.1153 of 2018
7. In the result, this Civil Revision Petition is allowed setting aside the order dated 07.09.2017 in I.A.No.2977 of 2016 in O.S.No.397 of 2010 on the file of learned Additional Senior Civil Judge, Kadapa and thus I.A.No.2977 of 2016 stands allowed. As a consequence of it, O.S.No.39 of 2010 is restored to the file. Learned Additional Senior Civil Judge, Kadpa shall expeditiously dispose of the suit. There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 11.10.2022 Ivd 7 Dr. VRKS, J C.R.P.No.1153 of 2018 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CIVIL REVISION PETITION No.1153 of 2018 Date: 11.10.2022 Ivd