ASHOK U SAMAT Vs. M/S SHANTHI BUILDERS

JUDGEMENT

(1.) THE defendants are the petitioners.

(2.) THE petitioners filed I.A.No.109 of 1999 for condonation of delay of 369 days in setting aside the ex parte decree dated 19.11.1998. THE respondent filed C.S.No.3 of 1994 in this Court for recovery of Rs.1,82,865 with interest. THE petitioners set out their defence in their written statement filed in 1994. Subsequently, in 1996, the suit was transferred to City Civil Court and numbered as O.S.No.1653 of 1996. According to the petitioners, neither they nor their counsel were served with any notice of transfer of the said C.S. from this Court to the City Court and therefore, they did not appear. Only when execution proceedings were filed, they received the notice and they came to know on 8.12.1999 that the suit had been decreed ex parte as early as 19.11.1998. According to the petitioners, delay was not deliberate one and had to be condoned.

(3.) THERE is no dispute that Tamil Nadu Civil Courts and Madras City Civil Court's Amendment Act, 1995 enhanced the pecuniary jurisdiction of the City Civil Court, Chennai. THEREfore, all the suits which were valid upto Rs.1 lakhs were transferred from High Court to City Civil Court. They were transferred in two or three stages and as stated in the counter filed by the respondent in this C.R.P., the lists were also periodically posted on the notice board. It is also not in dispute that the petitioners were represented by counsel while the suit was pending in the High Court. The transfer of the suit was not at the instance of either party where notice would necessarily go to other side, it was a statutory transfer and in such statutory transfers, notice is not given to the individual parties. In the decision relied on by the learned counsel for the petitioner reported in Ellapuram Panchayat Union v. Shri Bhavaniammal Devasthanam Ellapuram Panchayat Union v. Shri Bhavaniammal Devasthanam Ellapuram Panchayat Union v. Shri Bhavaniammal Devasthanam , 94 L.W. 256. dealt with the transfer of an appeal from one court to another. This Court held on facts that the respondent did have sufficient knowledge of the pendency of the appeal in the transferee court and his explanation that he was prevented by sufficient cause to appear in the appeal was not accepted. However, the learned Judge held in this case that, ?In the absence of any provision to that effect either under the C.P.C. or under the Civil Rules of Practice and circular orders, every effort should be made by courts to put the litigants on notice of the transfer of pending litigation, be it the trial court or the appellate court as the case may be. It is very necessary and desirable may, even imperative till such time as provision in this regard is made either under the C.P.C. or under the Civil Rules of Practice and circular orders that there should be an inflexible adherence to this requirement regarding notice; as otherwise, courts cannot adjudicate upon the rival claims of the litigations before it after giving an effective and adequate hearing to both sides, which is the bedrock of our system of administration of justice.? The learned Judge has referred to in the decision reported in Krishnammal and another v. Arulmughu Madanagopalaswamy Temple represented by its Executive Officer, Perambalur Krishnammal and another v. Arulmughu Madanagopalaswamy Temple represented by its Executive Officer, Perambalur Krishnammal and another v. Arulmughu Madanagopalaswamy Temple represented by its Executive Officer, Perambalur , (1997)1 L.W. 276 which was relied on by the court below to dismiss the application filed by the petitioners. In that case, the suit was originally filed by the District Munsif, Perambalur. For administrative reasons, it was transferred to District Munsif Court, Ariyalur. The plaintiff filed vakalath and notice was ordered to the defendants. The defendants did not appear and subsequently, an ex parte decree was passed. The learned Judge held that the transferee court owed no duty to inform about the transfer especially his parties are represented by the counsel before the transferor court and therefore, there was no necessity for issue of fresh summons to the defendants by the transferee court. In fact, the learned Judge in this case also found that the transferor court had informed the respective counsel about the transfer of the suit and only on that basis, the plaintiff had engaged the counsel before the transferee court on the very first hearing date. THEREfore, the learned Judge came to the conclusion of the facts that a mistake of the counsel in not informing the clients about the transfer of the suit was not a bona fide mistake and the reason given for the delay could not be accepted. The circular issued by this Court to Sub Court for its guidance is extracted in this judgment which was relied upon with great vehemence by the learned counsel for the petitioner. ?When suits, appeals or other proceedings retransferred from one court to another court, the transferor court shall post before it, the cases to a particular date and take endorsement of the advocates, who have already entered appearance for the parties that they are aware of the suits, appeals or the proceedings being transferred to a particular suit and only thereafter forward the papers to the transferee court.? THEREfore, according to the learned counsel for the petitioner, this Court ought to have taken endorsement before posting the case to the transferee court. In the same judgment, there is a reference to the another judgment reported in K.Janarthan and another v. R.Thilak Kumar K.Janarthan and another v. R.Thilak Kumar K.Janarthan and another v. R.Thilak Kumar (1992)2 L.W. 505. That was a case which is very similar to the instant case. The suit was registered in 1977. Vakalath was filed on behalf of the defendants in 1978. On the passing of the Act 34 of 1980 which enhanced the pecuniary jurisdiction of the Civil Court, the suit was transferred to Civil Court and numbered as O.S. 2353 of 1981. The court directed fresh summons and the matter was periodically adjourned and ultimately, the defendants were set ex parte and the suit was decreed in 1986. In 1988, the application was filed for setting aside the ex parte decree on the ground that the defendants came to know of the matter only then. This Court set aside the order of the trial court condoning the delay and allowed the C.R.P. The finding of the learned Judge is extracted hereunder: ?The respondent had been duly served not only in the application for permission to file the suit as an indigent person, but also in the suit after it was registered in the court. He did not file any written statement for over four years when the suit was pending in this Court. THEREafter when the matter was pending for about five years in the City Civil Court he did not move his little finger to appear in the suit or contest the same. I have found on facts that he had ample knowledge of the proceedings and he appears in court in 1988 for the first time and seeks to set aside the decree which has been obtained by the petitioners after toiling in courts for a period of about eleven years.? The learned Judge also held that notwithstanding the fact that the Registry only lists the case numbers and not the names (as in the instant case) the party ought to have gone to the City Court and ascertained the position.