M P SRIVASTAVA Vs. GYAN GUPTA

JUDGEMENT

(1.) The petitioners are aggrieved by the impugned order dated 7.4.2005 dismissing the application of the petitioner under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as, 'the said Code').

(2.) A suit for recovery was filed by the respondent against the petitioners on the Original Side of this Court. However on account of increase of pecuniary jurisdiction of this Court by the order dated 6.8.2003, the matter was transferred to the court of District Judge for the parties to appear on 29.3.2003. The order passed on 6.8.2003 records that the parties will appear before the District Judge when the matter will be assigned to a court of competent jurisdiction. The matter, however, came to be listed before the learned Additional District Judge on 29.8.2003. In view of the orders passed on 6.8.2003, the learned Additional District Judge adjourned the matter to 23.9.2003. The petitioners did not enter the appearance and an ex parte decree was passed on 29.11.2003.

(3.) Learned counsel for the petitioners contends that when a case is transferred to different court, it is the bounden duty of that court to issue a notice to the parties before taking further steps in the matter. In this behalf learned counsel referred to the judgment of the learned single Judge of the Patna High Court in the case of Kishore Kumar Agrawal Vs. Basudeo Prasad Gutgutia and another, AIR 1977 Patna 131 and of the learned single Judge of the Bombay High Court in the case of Krishnaji Mahadeo Bapat Vs. Wamanrao Balwantrao Shinde and another, AIR 1977 Bombay 36. Reference was also made to the judgment of the learned single Judge of the Allahabad High Court in the case of State of U.P. and another Vs. Sunil Kumar Bajpai and another, 1990 ALL,L.J.330. The conspectus of the aforesaid judgments shows that before ex parte proceedings are taken out against any party, the transferee court ought to issue notice to the parties, specially since in matters of transfer from one district to another a different counsel would have to be engaged.