1. The above revision petition has been filed against the order dismissing an application filed under Section 5 of the Limitation Act, praying the Court to condone the delay of 371 days in filing the petition to set aside the ex parte decree.

2. The respondent as plaintiff filed a suit in O.S No. 926 of 1994 on the file of the Sub Court, Salem against the petitioners herein (as defendants 4 and 5) and three others (as defendants 1 to 3), praying the Court to grant a decree for specific performance of the sale agreement dated 15.10.1993 by receiving the balance balance of sale price of Rs. 12,000 and executing a sale deed in his favour in respect of the suit property and in default, the Court to execute the sale deed in his favour and for other reliefs. The suit O.S No. 926 of 1994 which was originally filed before the Sub Court, Salem was subsequently transferred to the Sub Court, Attur in the year 1997 (after constitution of Sub Court at Attur) and the suit was renumbered as O.S No. 366 of 1997.

3. Briefly it is the case of the respondent herein that he entered into an agreement with defendants 1 to 3 on 15.10.1993 in and by which they agreed to sell the suit properties for a consideration of Rs. 60,000 and on the very same day, he paid a sum of Rs. 48,000 as part of the sale price. It was further agreed that the respondent herein would pay the balance sale price of Rs. 12,000 at any time before 30.10.1994 and on such payment the defendants 1 to 3 would execute a registered sale deed. The said agreement was registered as document No. 938 of 1993 on the file of Sub Registrar, Thalaivasal.

The further case of the respondent is that he was ready and willing to perform his part of the contract, but however, defendants 1 to 3 evaded to perform their part of the contract viz., to receive Rs. 12,000 and to execute the sale deed in his favour. This, according to the plaintiff, prompted him to send a notice to defendants 1 to 3 through his lawyer on 4.7.1994 Those defendants, who received the notice, sent a false reply on 11.7.1994 Again plaintiff sent another registered notice, so also a telegraphic notice on 22.10.1994 calling upon them to receive the balance sale price and to execute the sale deed on 31.10.1994 as 29th and 30th were holidays. The defendants 1 to 3 however did not respond to it but on the other hand sent a reply containing false allegations. According to the plaintiff, he came to know that defendants 1 to 3 have sold the suit properties to the petitioners herein/defendants 4 and 5 on 16.11.1994 and hence filed the suit impleading petitioners also as parties.

4. As mentioned supra, the suit was transferred to the file of Sub Court, Attur and renumbered as O.S No. 366 of 1997. On 6.4.1999, as the petitioners did not turn up, an ex parte decree came to be passed. The respondent filed E.P No. 19 of 2000 and in which the notice was sent from the Court to the petitioners herein.

5. On 12.6.2000 petitioners herein filed I.A No. 193 of 2001 in O.S No. 366 of 1997, an application under Section 5 of the Limitation Act praying the Court to condone the delay of 371 days in filing the petition to set aside the ex parte decree. In the affidavit in support of the said petition, they have stated that their counsel at Salem informed them that it would be sufficient for them to come to Court only after receiving letter from him (counsel) and hence they did not attend the Court on all the hearing dates. The petitioners would further claim that on 13.5.2000 they received a notice in E.P No. 19 of 2000 and only thereafter they approached their lawyer at Salem. On enquiry their counsel informed them that he was not able to attend each and every hearing dates before the Sub Court at Attur and on that day when ex parte decree came to be passed, he did not attend Court and that he himself was not aware about the exparte decree. Further claim of the petitioners is that had their counsel at Salem informed about the hearing date viz., 6.4.1999, they would have certainly attended the Court and only because they were not informed, they did not attend the Court and that in the facts and circumstances the petitioners cannot be blamed for their absence. They prayed that the delay in filing the petition under Section 5 of the Limitation Act may be condoned.

6. The respondent herein inter alia resisted the petition contending that petitioners were set ex parte even on 16.11.1990 for not filing written statement and in fact they have filed written statement only on 28.6.2001, after receiving the notice in E.P No. 19 of 2000. They further resisted the petition contending that the allegation that the advocate engaged by the petitioners told them that it would be sufficient if they appear before the Court as and when they receive letter from him and it is for them to strictly prove those allegations. A specific contention has been raised by the petitioners that the petitioners were very well aware of the date of ex parte order and they were very much present in the Court and in fact watching from the varandah when the respondent was examined in the Court. Respondent also pointed out that petitioners in the affidavit have not given any details with regard to the various dates as to when they met the Lawyer at Salem and as to when he received the bundle from the counsel at Salem and when they engaged Lawyer at Attur. Respondent also denied the allegation that in the interest of justice delay has to be condoned and that if the petition is not allowed, the petitioners will be put to hardship and loss and that the ends of justice will be defeated.

7. The trial Court after considering the entire matter found that the petitioners have not substantiated their claim and that the explanation put forward is totally unacceptable.

8. The learned counsel appearing for petitioners put forth the following contentions.

“(a) The petitioners were not at fault for not attending Court as their counsel at Salem asked them to come to Court only after they receive letter from him and as such no letter was received from their counsel.

(b) The above explanation has to be accepted and the same would constitute ‘sufficient cause’ within the meaning of Section 5 of the Limitation Act.

(c) There was no mala fide or negligence or inaction on their part.

(d) Admittedly the petitioners were not informed by the transferee Court about the transfer of the suit from the file of Sub Court, Salem to the file of Sub Court, Attur and because of which they had no knowledge about the hearing date of the suit and in any event for this reason alone the ex parte decree has to be set aside.

9. The learned counsel for the respondent on the other hand would contend that mere claims made by the petitioners in the affidavit, when particularly they have denied, cannot be taken to be a case where the petitioners have proved sufficient cause for not attending the Court and that there is utter lack of bona fides on their part as could be seen from their filing written statement belatedly and taking inconsistent stands in it and having purchased the property with full knowledge. It is also contended by the respondent that it is not necessary that the transferee Court should give notice to the petitioners about the transfer of the suit from the file of Sub Court, Salem to the Sub Court, Attur.

10. The first three submissions (a to c) of the petitioners can be taken together and dealt with first.

11. Before this Court takes up the task of considering the merits of the Claims and rival claims it is absolutely necessary that this Court has to refer to the ruling of the Supreme Court reported in Ram Nath Sao @ Ram Nath Sahu v. Gobardhan Sao, 2002 (1) CTC 769, where the Supreme Court ruled as under:

“Thus it becomes plain that the expression “sufficient cause” within the meaning of Section 5 of the Act or Order 22, Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party……. Acceptance of explanation furnished should be the rule and refusal an exception more so when no negligence or inaction or want of bona fide can be imputed to the defaulting party……. However, by taking a pedantic and hyper technical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way.” (emphasis supplied)

In N. Balakrishnan v. M. Krishnamurthy., 1998 (7) SCC 123, the Supreme Court ruled as under,

“… Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court.” (emphasis supplied)

12. From the above it is clear that while considering the petition filed under Section 5 of the Limitation Act, this Court has to examine the following aspects,

“1. Whether the petitioner has satisfactorily proved “sufficient cause” for the delay for not filing the petition in time.

2. Was there any negligence or inaction or want of bona fide on the part of the petitioner.

3. Whether a valuable right that has accrued to the other party will be likely to be defeated by condoning the delay.

4. Whether the petitioners have arguable points on facts and law.”

13. There was an agreement entered into between the defendants 1 to 3 and the plaintiff on 15.10.1993 and the defendants 1 to 3 received a sum of Rs. 48,000 out of total sale consideration of Rs. 60,000. The said agreement was duly registered as document No. 938 of 1993 on the file of Sub Registrar, Thalaivasal. As per the agreement, respondent had to discharge his obligation viz., to pay the balance price of Rs. 12,000 on or before 30.10.1994 and in such an event, defendants 1 to 3 should execute sale deed and get the same registered. The fact that on 4.7.1994 plaintiff sent a notice and again on 22.10.1994 a telegraphic notice, are not denied. In fact for those notices, defendants 1 to 3 had also sent reply notices. It was only thereafter, that was on 16.11.1994 defendants 1 to 3 sold the properties to defendants 4 and 5. In the decision referred supra, the Supreme Court has clearly ruled that in a particular case whether the explanation furnished would constitute “sufficient cause” or not will depend upon the facts of each case. This Court is inclined to point out the following facts and circumstances which would speak volume against the petitioners (i.e)

(a) Negligence and inaction, that too wilful, has to be inferred from the facts and circumstances,

(b) Vagueness of the affidavit and contradiction between the affidavit and deposition before Court,

(c) Failure to place any materials before Court to substantiate the case, and

(d) Absence of arguable points and law in the defence.

Let this Court proceed to deal with each aspect one by one.

(a) Negligence and inaction, that too wilful, has to be inferred from the facts and circumstances - The suit was instituted in the year 1994 and the petitioners were impleaded as defendants in the year 1996. Only with the application to condone the delay in setting aside the ex parte decree, the written statement was filed. Or in other words, written statement has been filed after five long years, for which petitioners have no explanation.

(b) Vagueness of the affidavit and contradiction between the affidavit and deposition before the Court - A bald affidavit has been filed in support of the application to condone the delay in setting aside the ex parte decree. In the affidavit, petitioners have not stated as to when they collected the bundle from their Salem advocate and contacted the advocate at Attur. In fact, they have not even mentioned as to when was the last occasion they met the advocate prior to 6.4.1999

In the deposition before Court, first petitioner has stated that when he contacted the advocate at Salem after receiving notice in execution petition, the advocate told him that he asked his clerk to write a letter about the transfer of the case to Sub Court, Attur, but however, he failed to do the same. This does not find a place in the affidavit in support of the application.

(c) Failure to place any materials before Court to substantiate the case - In the facts and circumstances of the case, the proper and only way to substantiate the case of the petitioner is to get a supporting affidavit from the advocate at Salem. It is not known as to what prevented the petitioners from obtaining and filing an affidavit from the advocate at Salem.

(d) Absence of arguable points and law in the defence - As a prudent and bona fide purchasers, petitioners should have verified from the Office of Registrar in the Registration Department about the encumbrance, if any, with reference to the suit property. That would have revealed the existence of the agreement. In the written statement, while in paragraph 3 a specific stand has been taken that the agreement is a forged one, in paragraph 4 it is stated that the document was obtained by force, undue influence, coercion, fraud and misrepresentation. However, no particulars were given as contemplated under Rule 4 of Order 6. In paragraph 7 the petitioners would claim that the suit property was worth Rs. 1.00 lakh even in 1993, but however would plead that they purchased the property for Rs. 85,000/- in 1994.

14. The above facts and circumstances would clearly show that the petitioners have not come forward with an explanation, which would be in the nature of ‘sufficient cause’ for this Court to condone the delay.

15. Let this Court now proceed to consider the next submission that the ex parte order is liable to be set aside on the sole ground that they were not informed about the transfer of the suit to the file of Sub Court, Attur by the transferee Court.

16. The suit was originally instituted in the Sub Court Salem and numbered as O.S No. 926 of 1994. A separate Sub Court at Attur was constituted and all suits, which came in the jurisdiction of that Court were transferred to the Sub Court, Attur and in that way, the present suit was also transferred to the Sub Court, Attur and renumbered as O.S No. 366 of 1997. It has to be noted, it is not the case of the petitioners that their counsel at Salem was not informed about the transfer of the suit to the file of Sub Court, Attur. In fact, in the affidavit filed in support of the petition they have stated that they met their counsel at Salem and he informed that he (counsel) was not able to attend the Sub Court, Attur on all the hearing dates and on the particular date i.e, on 6.4.1999, he (counsel) did not attend the Sub Court at Attur and hence was not aware about the passing of the ex parte decree. Once petitioners had engaged a counsel and who filed a vakalat, any notice given by the Court or by the other party to that counsel would constitute sufficient and proper notice to the petitioners. That being so, when the petitioners' counsel at Salem was informed about the transfer of the suit and in fact the said counsel also attended some hearing dates at Sub Court, Attur, petitioners cannot be heard to say that the transferee court also should have issued notice about the transfer of the suit to them. In fact this Court (High Court) had way back in the year 1981 issued instructions to the Subordinate Courts for their guidance. The relevant portion of the said Circular reads as under,

“(i) 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 endorsements 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.”

Inasmuch as in the present case the transferor Court has followed the instruction (i) referred supra, there is no substance in the contention of the learned counsel for the petitioners.

17. Apart from the instructions referred supra given by this High Court in the Circular, this Court considers that the transferor and transferee courts should follow some more procedures such as,

(a) while implementing the instruction No. 1, the Courts should give reasonable time to both the counsel to inform their respective clients,

(b) the transferee Court on receipt of the cases transferred to its file, should put a notice in the Court notice board giving all details including the first hearing date, to avoid unnecessary delay in the respective parties coming to know about the transfer of the suits which would enable them to take follow up actions that may be necessary as the situation warrants.

18. This Court sums up the instructions as under to be followed by the transferee Courts, whenever suits are transferred to their file because of the constitution of new Courts or due to enhancement of pecuniary jurisdiction,

“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 endorsements 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.

2. The transferor Court will specifically mention the date when the case will be taken up for the first hearing in the transferee Court, which should be at least two weeks after the date when the endorsement of the Advocates are taken.

3. 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 giving reasonable time for the parties to appear before Court either by himself/themselves or through counsel.

4. As soon as the transferee Court receives the list of cases transferred to its file, it should prepare a list containing the details and put up in the Court notice board mentioning the first hearing date.

19. In the light of the above discussions, this Court is of the view that the revision petition is totally devoid of merits and the same is dismissed. Consequently, C.M.P No. 2711 of 2002 is also dismissed. No costs.