VELPURI KRISHNA RAO Vs. RANDHI SURYANARAYANA

JUDGEMENT

(1.) The revision petitioner filed O.S. No. 93 of 2000 on the file of the Addl. Junior Civil Judge, Vizianagaram, against the respondents for permanent injunction restraining them from ever interfering with his peaceful possession and enjoyment of the schedule property. The suit was decreed on 19.04.2011. Against which, the respondents preferred A.S. No. 17 of 2006 on the file of the Special Judge for Trial of Cases under S.Cs & S.Ts (POA) Act-cum-Addl. District Judge, Vizianagaram. The learned Special Judge allowed the appeal by judgment and decree dated 19.04.2011 by setting aside the judgment and decree of the trial Court. Feeling aggrieved thereby, the revision petitioner filed I.A. No. 770 of 2011, under Order IX Rule 13 of the Code of Civil Procedure, 1908 (for short 'the Act'), contending that he and his advocate had no notice of transfer of the appeal and without hearing him, the learned Special Judge rendered the judgment in the appeal. The said application was dismissed by the learned Special Judge by order dated 22.06.2011 on the ground that the counsel for the revision petitioner had knowledge about the transfer of the appeal and on several dates of adjournments, they reported as not ready. The same is under challenge in this civil revision petition. Learned counsel for the revision petitioner contended that since no notice was issued to the petitioner or his counsel, after A.S. No. 17 of 2006 was transferred from the Principal District Judge's Court to the Additional District Judge's Court, as contemplated under the proviso to Rule 63 of the Civil Rules of Practice, neither the petitioner nor his counsel could appear before the Addl. District Judge's Court and the matter could not be properly pursued and, hence, the learned Special Judge should not have passed the ex parte judgment and decree in the appeal and the same should have been set aside under order IX Rule 13 of CPC. He further contended that the aforestated Rule specifically provides for issuance of notice and, in such a case, sending of list of transfer of cases to the Bar Association or displaying of the same on the notice board would not amount to compliance of Rule 63 of the Civil Rules of Practice and that the learned Special Judge had not appreciated the Rule in proper perspective.

(2.) On the other hand, learned counsel for the respondent submitted that the petitioner's counsel was aware about the transfer of the appeal and also the dates of hearing, as the petitioner's counsel in the lower appellate Court appeared before the Court of the Addl. District Judge and sought for adjournments. He also submitted that though notices were issued to both parties to appear before the Lok Adalat for conciliation and compromise, neither the petitioner nor his counsel appeared before the Lok Adalat. He further submitted that when the revision petitioner's counsel in the lower appellate Court knew about the transfer and dates of hearing of the appeal, further notice under Rule 63 of the Civil Rules of Practice would not in any way effect the disposal of the case. He further submitted that when the petitioner and his counsel were aware of the transfer of the appeal and they appeared before the lower appellate Court subsequent to transfer of the appeal, now they cannot contend that the provisions of Rule 63 of the Civil Rules of Practice are violated.

(3.) I have gone through the order under revision wherein it is categorically found that after transfer of A.S. No. 17 of 2006 from the Court of the Principal District Judge to the Court of the Addl. District Judge, the petitioner's counsel in the lower appellate Court appeared and sought for adjournments and the matter was also referred to Lok Adalat after issuance of notices to both parties, that even in Lok Adalat, notices were issued to the petitioner and the respondent, but they did not appear before it and that after the record was returned back to the Court of the Addl. District Judge, the matter was posted for hearing, which goes to show that the petitioner and his counsel in the Court below were aware of the transfer and dates of hearing of the appeal. A perusal of the judgment and decree dated 19.04.2011 in A.S. No. 17 of 2006 also shows that the judgment was passed on merits and the appearance of the counsel of both parties was also marked. As such, it cannot be said that the learned Special Judge passed ex parte judgment and decree.