PANNA LAL Vs. DISTRICT JUDGE AND ORS.

JUDGEMENT

(1.) HEARD Sri V.D. Ojha, learned Counsel for the petitioner. None has appeared on behalf of respondents even in the revised list. By means of this writ petition, the petitioner seeks quashing of the judgment and order dated 5.10.1993 passed by the Court of Judge Small Causes Jhansi in S.C.C. Suit No. 68 of 1993 whereby the application of the petitioner for seeking aside the ex -parte decree dated 15.1.1987 made under Order IX, Rule 13 of Code of Civil Procedure has been rejected. The petitioner has also challenged the judgment and order dated 9.11.1993 passed in S.C.C. Revision No. 133 of 1993 by the Court of District Judge Jhansi.

(2.) UPON a perusal of the impugned order passed by the Trial Court it appears that the sole ground for rejecting the application under Order IX, Rule 13, Code of Civil Procedure is that upon institution of the suit notice was served on the petitioner on 20.2.1981 and the petitioner did not appear inspite of service, where after on 28.8.1981 an order to proceed ex -parte against the petitioner was passed by the Court. The case was transferred from the Original Court after 28.8.1981 and since the petitioner did not appear to contest the proceedings the Transferee Court proceeded to decree the suit ex -parte on 15.1.1987. The Revisional Court has considered the grounds of revision taken by the petitioner and has concurred with the finding and the conclusions recorded by the Trial Court and dismissed the revision of the petitioner recording that since the petitioner had been served notice of the suit on 20.2.1981 and the suit proceeded ex -parte against him by the order dated 28.8.1981, therefore any subsequent transfer of the suit from the Court to another Court did not require any notice to be sent to the petitioner.

(3.) LEARNED Counsel for the petitioner has placed reliance upon a decision in the case of Hira Lal and others v. State of Bihar : AIR 1968 Patna 439, and has contended that when a case is transferred suo moto to another Court information of the transfer has to be communicated to the party or their lawyers and in the absence of such communication the aggrieved party would have sufficient and good cause for recall of the ex -parte decree. On the facts of the present case it is on record that no notice was served on the petitioner on transfer of the case from the Original Court. It is also on record that Transferee Court has proceeded ex -parte without issuing any notice to the petitioner. Therefore, there is non -compliance of the provisions of Rule 89 -A of the General Rule Civil. View expressed by the Courts below that in view of the fact that the petitioner had already been served notice of the suit by the Original Court and the Original Court had proceeded ex -parte due to non -appearance of the petitioner and therefore, the provision of Rule 89 -A of the General Rule Civil would not apply is patently erroneous. The requirement of rule is upon a transfer of the case. If a party is represented by an Advocate then notice can be given to him and if the party is not represented then the party has to be given notice at his address about the transfer. In the absence of such a notice the impugned orders cannot be sustained and are accordingly set aside. The writ petition is allowed. The Trial Court will proceed to decide the suit in accordance with law. No order is passed as to costs.