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Krishnammal And Another v. Arulmughu Madanagopa...
Factual and Procedural Background
The respondent originally filed a suit in District Munsif Court, Perambalur which, for administrative reasons, was transferred by order dated 27-1-92 to the District Munsif Court, Ariyalur. The first hearing in the transferee court was on 16-3-92 when the plaintiff's counsel filed a vakalat; the court directed that notice be taken to the defendants and posted the matter for 30-3-92. The matter was adjourned to 30-4-92 and later to 20-7-92 for the defendants' appearance. On an application by the plaintiff dated 24-6-92 the hearing was advanced (the opinion refers to advancement to 30-6-92 and elsewhere refers to an ex parte decree dated 26-6-92), and an ex parte decree was passed at the advanced hearing.
The petitioners (defendants in the original suit) filed I.A. 625 of 1993 seeking condonation of a delay of 380 days in filing an application to set aside the ex parte decree. The trial court dismissed the condonation application, and the petitioners filed the present civil revision challenging that dismissal. By consent of counsel the revision petition itself was taken up for final disposal.
Legal Issues Presented
- Whether the delay of 380 days in filing the application to set aside the ex parte decree was satisfactorily explained and should be condoned.
- Whether, on transfer of a suit, the transferee court is obliged to issue fresh notice to the parties (particularly where parties were represented by counsel before the transferor court).
- Whether the petitioners can rely on the transferee court's direction to issue notice (if any) to challenge the validity of the ex parte decree or to justify delay in taking steps to set aside the decree.
Arguments of the Parties
Petitioners' Arguments
- The petitioners contended that the transferee court had directed issuance of notice to the defendants on 16-3-92 and therefore the court should have waited until service was effected; they were not served and hence unaware of the advanced hearing and the ex parte decree.
- They asserted they were unaware of the transfer of the suit from Perambalur to Ariyalur and only learned of the ex parte decree upon receiving notice in an execution petition; they acted immediately thereafter in filing the application to set aside the decree and for condonation of delay, so the delay was bona fide.
Respondent's Arguments
- The respondent argued that on 16-3-92 the plaintiff's counsel filed vakalat in the transferee court and the transferor court had already informed the respective counsel about the transfer, so there was no necessity for fresh summons to the defendants.
- The respondent asserted the transferee court's direction to issue notice was a mistake, and that once the mistake was realized the court proceeded on the basis that fresh notice was unnecessary. There was no rule requiring fresh notice after transfer and the petitioners offered no satisfactory explanation for the 380-day delay, which was exorbitant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| K. Janarthan v. R. Thilak Kumar (1992-2-L.W. 505) | Whether it is necessary for the transferee court to serve notice on parties in cases of transfer of suits; discussion of the requirement for notice after transfer and reliance on prior authority. | The court relied on this authority to hold that it is not the duty of the transferee court to inform parties about the transfer when the parties were already represented by counsel before the transferor court, and therefore the petitioners could not rely on a failure to be served by the transferee court as justification for delay. |
| Ellapuram Panchayat Union v. Bhavaniamman Devasthanam (AIR 1981 Madras 248 = 94 L.W. 256) | Observed there were no Rules prescribing the issue of notice after transfer; emphasized desirability/necessity of giving notice on transfer to satisfy natural justice; recommended that courts strive to inform parties of transfer pending rule-making. | The court quoted and applied the principles discussed in this decision to explain the administrative response (a Circular) and to frame the duties of transferor and transferee courts: transferor to inform and take endorsements; transferee to issue fresh notice only where parties had not been served previously. |
Court's Reasoning and Analysis
The court reviewed the chronology and the representations. It accepted that the suit was transferred from the District Munsif Court, Perambalur to Ariyalur and that on the first hearing in the transferee court (16-3-92) the plaintiff's counsel filed vakalat. From this the court inferred that the transferor court had informed respective counsels about the transfer (since the plaintiff engaged counsel in the transferee court immediately).
The court found no satisfactory explanation for the defendants' non-appearance on 16-3-92. It examined the affidavit filed by the petitioners supporting the condonation application and noted material omissions: the petitioners did not specify the date they received notice in the execution petition or the date they consulted counsel. The affidavit and evidence contained inconsistent explanations, including an assertion that the petitioners' counsel at Perambalur had not informed them about the transfer because he was unwell. The court treated that explanation as reflecting negligence by counsel and as an afterthought rather than a bona fide excuse.
On the specific contention that the transferee court had ordered notice and should have waited until service was effected, the court analysed precedent and administrative guidance. It cited K. Janarthan which considered whether transferee courts must serve parties on transfer and relied on the Ellapuram decision where Ratnam, J. observed absence of rules prescribing fresh notice but stressed the desirability of such notice for natural justice. The court referred to the administrative Circular (Roc. No. 193-A/81 R.R., July 1981) implementing practical instructions:
- the transferor court should post transferred cases to a particular date and take endorsement of advocates already appearing that they are aware of the transfer before forwarding papers to the transferee court; and
- where parties have not already been served, the transferee court should issue notice or fresh notice as appropriate.
From these authorities and the Circular the court concluded that when parties were represented by counsel before the transferor court, it was not the duty of the transferee court to issue fresh notices. In the present case the parties had been represented by counsel before transfer, so there was no requirement for fresh summons to the defendants. The court further held that the lower court's order directing notice on 16-3-92 was incorrect, but that the petitioners could not take advantage of that incorrect direction to justify their inordinate delay. Given the absence of a satisfactory explanation and the inordinate length of the delay, the court found no sufficient cause to condone the delay.
Holding and Implications
DISMISSED. The Civil Revision Petition was dismissed.
Implications:
- Direct effect: The court affirmed the trial court's dismissal of the application to condone the delay in filing the application to set aside the ex parte decree; the petitioners' request for condonation was refused and the revision dismissed.
- On broader consequences: The opinion applies existing authority and administrative Circular guidance regarding duties on transfer and does not purport to lay down a new rule; the court emphasized that where parties are represented before transfer, the transferee court is not obliged to issue fresh notice and a party's unexplained, inordinate delay will not be condoned. The opinion does not state that it establishes any novel precedent beyond application of the cited authorities and administrative instructions.
KA/RR/VCS (notations as in the original opinion).
By consent of both the counsel, the civil revision petition itself is taken up for final disposal. The petitioners are the defendants in O.S 54/92 on the file of District Munsif Court, Ariyalur. The respondent herein tiled the said suit originally on the file of the District Munsif Court, Perambalur. For administrative reasons, by order dated 27-1-92 the suit was transferred to the District Munsif Court, Ariyalur and the first hearing was posted on 16-3-92, on which date the counsel for the plaintiff filed vakalat on behalf of the plaintiff. Notice was ordered to the defendants by 30-3-92. The matter was adjourned to 30-4-92 by extending the time for parties appearance. On 30.4.92 the matter was adjourned to 20.7.92 for the appearance of the defendants. However, on 24-6-92, on an application filed by the plaintiff, the hearing of the suit was advanced to 30-6-92. On that date, the ex parte decree was passed.
2. The petitioners herein filed an application I.A 625 of 1993 to condone the delay of 380 days in filing the application for setting aside the ex parte decree in the said suit. The said application was dismissed by the trial court, against which the present revision has been filed.
3. The counsel for the petitioners contended that on 16-3-92 the suit was adjourned to 30-3-92 with a direction to take notice to the defendants. On 30-3-92 the matter was adjourned to 30-4-92, extending the time for the appearance of parties. On 30-4-92, the matter was adjourned to 20-7-92, since there was no representation on behalf of the defendants. But, and however, by order dated 24-6-92, the suit was advanced to 26-6-92 and the ex parte decree was passed. The petitioners were not served with the notice. When the lower court has directed the issue of notice on 16-3-92, the lower court ought to have waited till the service is effected on the defendants. The petitioners were not aware about the transfer of the suit from the District Munsif Court, Perambalur to the District Munsif Court, Ariyalur. Only on receipt of notice in the execution petition, they came to know about the ex parte decree dated 26-6-92 and immediately the application has been filed for setting aside the ex parte decree with an application to condone the delay. Hence the delay is bona fide.
4. On the contrary, the counsel for the respondent contended that on 16-3-92 at the first call before the District Munsif Court, Ariyalur the plaintiff's counsel had filed the vakalat. The transferor court had already informed the respective counsel about the transfer of the suit to the District Munsif Court, Ariyalur and as such there is no necessity for the issue of any summons to the defendants. The direction issued by the District Munsif, Ariyalur to take the summons to the defendants is a mistake. On realising the mistake, the suit was taken up on the ground that no fresh notice is necessary for the defendants. When there is no Rule contemplating the issue of fresh notice, the direction issued by the transferee court cannot be taken advantage of by the defendants in the suit. There is absolutely no explanation for the delay of 380 days. Since the delay is exorbitant one, the order of the lower court in dismissing the application needs no interference.
5. I carefully considered the contention of both the counsel. There is no dispute that the suit was originally filed before the District Munsif Court, Perambalur which subsequently transferred to the District Munsif Court, Ariyalur. In the transferee court, the first call had been filed on 16-3-92 and on that date the plaintiff's counsel had filed the vakalat. Hence, the transferor court had informed the respective counsels about the tranfer of the suit and only on that basis the plaintiff had engaged the counsel before the transferee court on the very first hearing date. There is no explanation for the non-appearance of the defendants on 16-3-1992 before the transferee court.
6. In the affidavit filed in support of the application for condoning the delay, the petitioners had stated thus:
Here the petitioners did not give the date on which they received the notice in the execution petition and the date on which they met the counsel. In the absence of these dates, it cannot be said that the defendant had acted without any delay. Further in the evidence he has stated as follows:
It is the case of the petitioners that their counsel at Perambalur had not informed about the transfer of the suit. Their case is that their counsel is not well and did not inform them. If that be so, it cannot be said that the mistake of the counsel in not informing his clients about the transfer is a bonafide mistake, since the counsel owes a duty to his clients to inform about the stage of the proceedings. If really the counsel had not informed the petitioners about the transfer it will amount to negligence and dereliction of duty of their counsel at Perambalur. Hence the explanation given by the petitioner in the evidence and in the affidavit is contrary. I am of the opinion that the same cannot be accepted and it is only an afterthought. Since the delay is inordinate one, it cannot be lightly taken note of. Hence the lower court is perfectly right in dismissing the application for condoning the delay.
7. So far as the contention of the counsel for the petitioners that the petitioners had not been served with the notice by the transferee court and the lower court having ordered notice to the defendants ought to have waited till the service is completed, the same cannot be accepted. It can be seen from the judgment reported in K. Janarthan v. R. Thilak Kumar (1992-2-L.W. 505) wherein the question arose is whether it is absolutely necessary that the parties to the proceedings should be served with notice by the transferee court, in case of the transfer of suits from other courts? In the above judgment, it has been held as follows:
“The question of notice was considered by this Court in Ellapuram Panchayat Union v. Bhavaniamman Devasthanam (AIR 1981 Madras 248 = 94 L.W 256). Ratnam, J. found that there were no Rules prescribing the issue of notice after a transfer of a suit is effected. He felt that it was necessary and imperative to make such provisions so that the principles of natural justice could be satisfied. The following passages in his judgment are relevant and reliance is placed therein:
“Normally, a party to a proceeding before any civil court is entitled to a notice from that court where the proceedings are pending in order to fix him with the knowledge of the pendency of the proceedings and also to enable him to take steps in that regard. It is on account of this that even in matters which are tried afresh as a result of remit orders that the parties are given notice afresh as otherwise, the fact that the court is again seized of the matter may not be within the knowledge of the parties. Likewise, even when an appeal is preferred, the respondent to such an appeal is entitled to a notice and this has been provided for under O. 41, R. 14, C.P.C”
“It would be a very salutary practice if even in cases of appeals transferred from one Sub-court to another owing to exigencies of work load, a notice to that effect should be given to the parties informing them that the appeal which was pending before one court has since been transferred to another court. No provision to this effect either under the Code of Civil Procedure or under the Civil Rules of practice and Circular Orders has been brought to the notice of the Court by the counsel on either side, since a party to a litigation before any court should know where it is pending and when it is likely to be taken up,
“It is essential that parties must be informed by the transferee court in order to enable them to appear before the tranferee court and contest the proceedings so transferred by engaging other counsel and taking necessary steps in this regard. In the absence of any provisions to that effect either under the Code of Civil Procedure 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, nay, even imperative that till such time as provision in this regard is made either under the Code of Civil Procedure 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 litigants before it after giving an effective and adequate hearing to both sides, which is the bedrock of our system of administration of Justice.”
After the said judgment the matter was considered administratively by this Court. A note was put up by the office before the judges for framing of appropriate Rules. The observations of Ratnam, J. were placed before the judges. After considering the matter this Court issued the following Circular in Roc. No. 193-A/81. R.R in July, 1981. The following instructions were given to the subordinate courts for their guidance:
“(1) When suits, appeals or other proceedings are transferred 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 other proceedings being transferred to a particular court and only thereafter forward the papers to the transferee court.”
(ii) In cases where parties have not already been served, notice or fresh notice (as the case may be) shall be issued by the transferee court.”
That Circular will also apply only to a transfer by courts. It is seen from the first instruction that it is for the transferor court to make the parties aware of the proceedings of transfer. The second instruction applies to cases where the parties have not already been served. With regard to those cases the instruction was that a notice or fresh notice, as the case may be, shall be issued by the transferee court. Hence the Circular does not contemplate a fresh notice or summons by a transferee court in a case where summons had been served duly on parties when the proceedings were pending in the transferor court. In the present case summons had been served duly on the respondent when the matter was pending in this court and no question of fresh notice to the respondent arises when the matter was transferred to the City Civil Court. The City Civil Court was under no obligation to issue notice to the respondent about the transfer. It was for the respondent to inform himself about the proceedings and appear before the court. Hence the respondent cannot place any reliance on the circumstance that he was not served with summons or notice in the suit after it was taken on file in the City Civil Court.”
8. From the above said principle, it is clear that it is not the duty of the transferee court to inform the parties about the transfer when the parties are represented by counsel before the transferor court. In this case, there is no dispute that the parties were represented by respective counsels before the transferor court. Hence there is absolutely not necessity for the issue of fresh summons to the defendants in the suit. The lower court is hot correct in ordering notice to the defendants by its order dated 16-3-92. When the direction for the issue of summons to the defendants is not correct, now it is not open to the petitioners herein to take advantage of the same; especially when such issue of summons or notice is not contemplated either by the Rules or by the Circulars. Hence, there is absolutely no cause, much less any sufficient cause for the inordinate delay in filing the application for setting aside the ex parte decree.
9. For the reasons stated above, the Civil Revision Petition is dismissed.
KA/RR/VCS
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