KAPLURU SUBBARAYUDU Vs. KAMMARA RANGIAH

JUDGEMENT

(1.) These two appeals arise from proceedings originally instituted in O.S. No. 84 of 1952 in the Court of the Subordinate Judge, Kurnool. The material facts relevant for the purpose of disposal of these appeals are briefly as follows :- The suit, O.S. No. 84 of 1952 was filed by one Kamara Kalappa against six defendants for a declaration of his exclusive and absolute right in the plaint schedule lands and other allied reliefs or, in the alternative, for possession of the plaint schedule lands, ejecting the first defendant therefrom. Defendants 2 to 6 filed a written statement contending that they had no interest in the suit lands. The first defendant contested the suit raising various contentions. The learned Subordinate Judge framed ten issues and ultimately, after full trial, dismissed the suit against the first defendant with costs and exonerated defendants 2 to 6 without costs. During the pendency of the suit, the sole plaintiff Kamara Kalappa died and his legal representatives were added as plaintiffs 2 to 5. An appeal, A.S. No. 164 of 1954 was preferred by plaintiffs 2 to 5 to the Court of the District Judge, Kurnool. The learned District Judge, Kurnool, transferred that appeal to the Additional District Judge, Adoni, for hearing. Subsequently, the learned District Judge, Kurnool, withdraw the case back to his own file. He took it up for hearing on 24th March, 1955. On that date, the first defendant Kunduru Subbarayudu was absent. The learned District Judge, Kurnool, pronounced judgment on 3ist March, 1955, allowing the appeal, decreeing the suit in favour of the plaintiffs, directing the first defendant to deliver possession of the suit lands to the plaintiffs and awarding costs to the plaintiffs throughout against the first defendant. The judgment opens as follows: "This appeal coming on 24th March, 1955, for hearing before me in the presence of R. Venkatarao, Advocate for the appellant, and the respondent being absent and himself ex parte......"

(2.) Later, the first defendant filed I.A. No. 147 of 1955, an application under Order 41, rule 21, Civil Procedure Code and section 151, Civil Procedure Code, for setting aside the judgment which had been pronounced ex parte against him and for rehearing the appeal and disposing it of on merits. In support of this he filed an affidavit alleging reasons for his absence on the date of the hearing. The District Judge, Kurnool, passed an order dated I2th July, 1955, dismissing that application, holding that the appeal had not been heard ex parte, that the first defendant had not been set ex parte, that the appeal had been heard and decided on merits and that the only remedy open to the first defendant was to prefer an appeal. The first defendant filed C.M.A. No. 250 of 1955 against the order of the District Judge, Kurnool. The High Court passed an order on 3oth October, 1958, holding that the learned District Judge had not applied his mind to the reasons alleged in the affidavit in support of the petition for rehearing and that justice of the case required that the case should be sent back for reconsideration of the matter by the learned District Judge and for a finding whether there was sufficient cause for the first defendant to be absent on the date of the hearing of the appeal. The learned District Judge, Kurnool, heard Advocates on both sides and sent his finding dated 3rd January, 1959, which is to the following effect :- "That the present appellant (first defendant) had no sufficient cause for his being absent on the day appointed for hearing in A.S. No. 164 of 1954."

(3.) Meanwhile, the first defendant also filed S.A. No. 117 of 1956 against the judgment and decree of the District Judge, Kurnool, dated 31st March, 1955, in A.S. No. 164 of 1954. After perusing the finding dated 3rd January, 1959, our learned brother Seshachelapati, J., referred the C.M.A. to a Bench for disposal. Thus, C.M.A. No. 250 of 1955 and S.A. No. 117 of 1956 came up for hearing before us. We have heard Advocates on both sides. The main point raised and argued on behalf of the appellant before us is that the judgment of the learned District Judge has to be set aside because the appellant was not given notice of the transfer (withdrawal) of the case from the Additional District Judge. Adoni, to the Principal District Judge, Kurnool. In this judgment the above 'withdrawal' is also referred to for convenience as ' transfer '. It is beyond doubt or dispute that the first defendant had no notice of that transfer. But, it is contended on behalf of the plaintiffs that no notice was necessary as the transfer (withdrawal) was done by the learned District Judge suo motu and not on any application put in by any party. Sri M. S. Ramachandra Rao for the respondents also supported this contention which has been accepted by the learned District Judge in his finding dated 3rd January, 1959.