Allahabad High Court
Ram Padarath And Another vs Smt. Chiraunji Devi on 19 December, 2014
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Case :- WRIT - C No. - 39989 of 2008 Petitioner :- Ram Padarath And Another Respondent :- Smt. Chiraunji Devi Counsel for Petitioner :- Prabhaker Varddhan,M.D. Singh "Shekhar" Counsel for Respondent :- Sc,Ashok Mehta,P. Maurya Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri M.D. Singh "Shekhar", learned Senior Counsel assisted by Sri P.K. Singh and Sri Prabhakar Vardhan, learned counsels for the petitioners and Sri Ashok Mehta, learned Senior Counsel assisted by Sri Purushottam Maurya, learned counsel for the respondent.
The present writ petition arose out of proceedings under Order IX rule 13 C.P.C. initiated by the petitioner. Brief facts giving rise to the present writ petition are that the petitioner claiming ownership on the basis of a registered sale deed dated 21.1.1980 submits that their names have been mutated in the revenue records on 31.3.1980. They were continuing in possession. The vendor Sarju Prasad filed a suit bearing Original Suit No. 126 of 1984 on 4.2.1984 for cancellation of the sale deed dated 21.1.1980 executed in favour of the petitioners on the ground that the sale deed was an outcome of fraud committed by the petitioner. The suit was decreed ex-parte on 7.5.1984, however, name of the petitioner continued in the revenue records. No steps were taken to expunge the name of the petitioners. On 16.1.2004, after about 20 years, an application for mutation of her name was filed by opposite party wife of Sarju Prasad after his death on 21.4.1994. The name of opposite party was mutated on 3.3.2004. The petitioners obtained a copy of 'Khatauni' for the purpose of loan on 26.10.2004, then they came to know about the order dated 3.3.2004 expunging their names from the revenue records. Immediately, an application was moved on 26.10.2004 before the Tehsildar for recall of the order dated 3.3.2004. The order dated 3.3.2004 was stayed by the Naib Tehsildar, however, it was vacated on 10.12.2004. An appeal was filed by the petitioners before the Commissioner in which a stay order was passed on 7.1.2005 staying the operation of order dated 10.12.2004 passed by the Naib Tehsildar. Resultantly, the interim order granted on 22.11.2004 by the Naib Tehsildar revived and is still continuing. A restoration application under Order IX Rule 13 C.P.C. was filed by the petitioners on 8.12.2004 alongwith application under Section 5 of the Limitation Act for recall of ex-parte decree dated 7.5.1984.
The categorical stand taken by the petitioner in application under Order IX Rule 13 was that the entire proceedings of Original Suit No. 126 of 1984 was ex-parte. The suit was filed on 4.2.1984, on the same day summons were issued fixing 24.3.1984 for filing of W.S. and 31.3.1984 for framing issues. On 24.3.1984, written statement was not filed and as such order was passed that no W.S. filed, put up on the date fixed (i.e. 31.3.1984). However, prior to the date fixed i.e. 31.3.1984, the suit was transferred to the Court of XIth Additional Civil Judge, Allahabad from the Court of Munsif (east), Allahabad. However, the matter was taken up by the transferee Court on 31.3.1984 i.e. the date fixed by the Court from which the case was transferred. On 31.3.1984, the transferee court found the service of summons upon petitioners i.e. defendants sufficient by refusal and passed an order to proceed ex-parte fixing 21.4.1984. On 21.4.1984, the next date was fixed as 27.4.1984 for orders. The matter was heard on 27.4.1984 and 30.4.1984 was fixed for judgment. On 30.4.1984, further the date was fixed as 7.5.1984 for judgment and on the said date, the judgment was pronounced and the suit was decreed ex-parte.
The court below rejected the application under Order IX Rule 13 filed by the petitioner on the ground that service of summons was sufficient, on the basis of report of process server. The petitioners have failed to prove that they had no knowledge of the suit and hence there was no justification to set aside the ex-parte decree after 20 years. The appeal filed against the order of rejection dated 13.1.2006 was dismissed by the Additional District Judge, Court No. 16, Allahabad on 24.5.2008 on the same ground. Challenging the orders passed by both the courts below, the present writ petition has been filed.
Assailing the orders of rejection of application for setting aside ex-parte decree of the courts below, learned counsel for the petitioner submits that the provisions of Rule 89-A of the General Rules (Civil) meant for civil courts have not been followed by the transferee court. The petitioners were not informed of the transfer of the suit from the court of Munsif to the court of XIth Additional Civil Judge, Allahabad. The transfer of suit on 27.3.1984 was in the absence of the parties. It was incumbent on the transferee court to satisfy itself that the parties or their counsels have been informed. A note to this effect that the parties have been informed of the transfer was required to be made in the order-sheet. The order-sheet clearly shows that the petitioners were not informed of the transfer and the date fixed i.e. 31.3.1984 and hence the decision to proceed ex-parte by the transferee court on 31.3.1984 is against the mandate of Rule 89-A of the General Rules (civil). It cannot be deemed that the defendants/petitioners were absent and the court was competent court to proceed in disposing of the suit ex-parte. The mistake is on account of act of the court and it was incumbent on the court to rectify its mistake. The application under Order IX Rule 13 could not have been rejected on the ground that service of summons issued by the court from which the suit was transferred, was sufficient.
Reliance has been placed upon the judgment of this Court in Balbir Singh Chauhan Versus Vijai Kumar Agarwal decided on 19th December, 1986 and Jinendra Jain and others Versus Punjab National Bank reported in 1996 All., L.J. 1043.
Refuting the submissions of Sri M.D. Singh "Shekhar", learned Senior Counsel for the petitioners, Sri Ashok Mehta, learned Senior Counsel for the respondent submits that in the present case, the situation as contemplated under Rule 89-A did not arise at all as the defendants had not been put in appearance before the Court below by 27.3.1984 when the suit was transferred to the Court of XIth Additional Civil Judge, Allahabad. Summons were issued on 4.2.1984 fixing 24.3.1984 for W.S. And 31.3.1984 for framing issues. The case was called out on 31.3.1984, i.e. the date fixed by the Court from which the suit was transferred. The transferee court found that the summons were duly served upon the defendants and passed an order to proceed ex-parte. Dates were fixed for hearing and the matter was heard on 27.4.1984 and was decided ex-parte. While deciding the application under Order IX Rule 13, a satisfaction was recorded by the Court that the summons were duly served and the defendants/petitioners had knowledge of the suit. They had failed to establish that the decree was obtained by fraud. The findings of fact recorded by both the courts below call for no interference in exercise of powers under Article 226 of the Constitution of India.
Before dealing with the submissions of the learned counsel for the parties, it would be apposite to refer to provisions of Rule 89-A of General Rules (CIVIL) 1957:-
89-A. Procedure to be followed on transfer or withdrawal of cases.
"(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 transferred from the Court to another, the former Court shall record the order of transfer in the order sheet and get it signed by 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 cases are transferred in a large number the Court 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 posted on the notice board of the local bar association for information of the members of the bar and another copy to be posted 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 post 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 posted 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."
A careful reading of Rule 89-A shows that it deals with two situations, first is where the party or parties already represented in the Court, another situation is where the party is unrepresented. For the first situation, it is provided that where the party or parties is represented in a particular court and the case is transferred from that court to another court. The former Court shall record the order of transfer in the order-sheet and get it signed by the counsel for the party or parties. However, where any party is unrepresented, information shall be sent to his registered address. It further contemplates that the case shall be called out by the transferee court on the date already fixed by the transferring court and the presence of the parties be noted. In other words, the transferee court has to ensure that the party or parties are aware of the date fixed before proceeding on merits in a transferred matter.
In the instant case, the suit was transferred before the defendant could put his presence/appearance in the court, where the suit was instituted. Summons were issued by the transferring court fixing 24.3.1984 for W.S. and 31.3.1984 for framing issues. The case was taken up by the transferee court on the date fixed by the transferring court i.e. 31.3.1984. It is categorically recorded by the transferee court that the service of summon was sufficient by refusal. As the defendants/petitioners did not appear before the court below despite due service of summons, there was no occasion before the transferee court to examine as to whether the defendants have knowledge of the transfer or not. The first situation as contemplated under Rule 89-A of General Rules (civil) did not arise at all in the present case. The second situation of party being unrepresented has been satisfied as summons were duly served upon the defendants. The defendants have failed to establish that they had no knowledge of the suit and were prevented by sufficient cause from appearing in the Court when the suit was called on for hearing.
The summons were issued by two modes i.e. registry and ordinary process. A finding of fact has been arrived at by the courts below that the process server had submitted a report bearing signatures of the witnesses that the defendants had refused to receive the summons after reading the same and hence it was pasted on the front door of the house of the defendants. Similarly, there was a report of the Postman of refusal to receive the registry. Though the defendants have filed affidavits of witnesses whose signatures bore on the report of process server, however, one of the witnesses appeared in the witness-box and recorded a statement that he had never signed the affidavit filed by the defendants in their support that summons were not served upon them. Bechai, one of the witnesses categorically stated on oath that his signatures have been fraudulently obtained by the defendants on the affidavit namely Paper No. 26-Ga/1. After looking to the summons namely Paper No. 12-A/1 and 2, this witness stated on oath that his signatures and thumb-impression were there in the said document. He has proved the report of process server of service upon the defendants. In view of the report of the process server and the categorical statement of one of the witnesses in support of the said report, a finding of fact has been arrived at by the court below that service of summon was sufficient upon the defendants by refusal and they had deliberately avoided the service and willingly did not appear before the court below on the date fixed i.e. 31.3.1984. The above findings were affirmed by the appellate court. The appellate court has categorically recorded a finding that the petitioners have not appeared before the transferee court and the suit was transferred prior to the service of summons. There was no occasion for observing the provisions of Rule 89-A, as the situation contemplated therein did not arise at all. The technical ground taken by the defendants that they were not aware of the transfer of the suit in another court cannot be treated sufficient to set aside the ex-parte decree.
Learned counsel for the petitioners has failed to assail the finding of fact regarding service of summons upon the petitioner returned by the court below. Only submission of the learned counsel for the petitioners in order to assail the orders of rejection of application under Order IX Rule 13 is that the mandatory provisions of Rule 89-A of General Rules(civil) has not been followed.
As discussed above, the situation as contemplated under Rule 89-A did not arise in the present case as the suit was transferred prior to appearance of the defendants. The summons were issued by the transferring court and were duly served upon the defendants. The service was made by both ways i.e. ordinary process as well as registered post. The process server and the Postman both have given their report that the defendants had refused to receive the summons. The finding of service of summons recorded by the Court below has not been assailed and it is established that the petitioner were having knowledge of the suit on the date fixed i.e. 31.3.1984, the orders of courts below are clearly justified in the facts and circumstances of the case.
It was, therefore, incumbent upon them to appear before the Court below on the date fixed i.e. 31.3.1984. The case was taken up by the transferee court on the date fixed by the previous court. In case the petitioners would have appeared before the previous court i.e. court of Munsif from where the suit was transferred, they could have raised the dispute that they were not made aware of the transfer and hence could not appear before the transferee court i.e. the court of XIth Additional Civil Judge, Allahabad. Indisputably, this is not the case of the petitioners. Merely because the petitioners were not informed of the transfer prior to the date fixed i.e. 31.3.1984, it cannot be said that the transferee court was at fault in proceeding with the suit ex-parte. The defendants/petitioners were absent despite service of summons upon them and it cannot be said that they were prevented by a sufficient cause from appearing in the court when the suit was called on for hearing.
The judgments relied by learned counsel for the petitioners namely Balbir Singh Chauhan (supra) and Jinendra Jain (supra) are distinguishable in the facts and circumstances of those cases.
In Balbir Singh Chauhan (supra), the summons were served upon the defendants and they had appeared before the Court below. As the copy of plaint was not available to them, the plaintiff was ordered to supply a copy of the plaint and the date was fixed. On the prayer made by the defendants, further time was granted to file written statement. In the meantime, the case was transferred to another court and it was found that none of the counsel for the parties i.e. plaintiff or defendant were informed of the transfer and the date fixed before the transferee court.
Whereas in Jinendra Jain (supra), the suit was transferred on 1.7.1989 to the Court of IIIrd Additional Civil Judge from the Court of IInd Additional Civil Judge. The defendant had moved an application before the Court of IInd Additional Civil Judge on 7.7.1989 i.e. after transfer with the endorsement that plaintiffs counsel was not available. Another application was filed on 28.7.1989 for adjournment on which the plaintiffs counsel had noted no objection.
In the said circumstances, the Court below found that the plaintiff had no notice of information about the transfer of the suit. There was no information to the plaintiff and it was held that Rule 89-A of General Rules (civil) was not complied with. It was observed that the mistake was of the Court and the suit was restored. The civil revision passed against the order of IVth Additional District Judge, Gorakhpur rejecting the application for recall of order passed by the Court below restoring the original suit to its original number was dismissed.
In the fact situation of the cases relied upon by learned counsel for the petitioners, it was held by this Court that there was violation of the mandatory provision of Rule 89-A and General Rules (civil) and hence the order to proceed ex-parte was recalled.
The fact situation of the present case is different and as discussed above, no occasion to observe the provisions of Rule 89-A arose before the Court below.
The arguments of learned counsel for the petitioners to assail the orders of the courts below have no force.
There is no infirmity in the orders passed by the courts below.
The writ petition is accordingly dismissed.
Order Date :- 19.12.2014 B.K. (Sunita Agarwal, J.)