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Ellapuram Panchayat Union Vs. Bhavaniamaman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 19 of 1981
Judge
Reported inAIR1981Mad248
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 14
AppellantEllapuram Panchayat Union
RespondentBhavaniamaman
Appellant AdvocateN.R. Chandran, Addl. Govt. Pleader
Respondent AdvocateR.D. Indrasenan, Adv.
Excerpt:
.....and reheard in exercise of powers under order 41 rule 21 - parties to proceedings before any civil court entitled to notice from court where proceedings are pending in order to fix them with knowledge of pendency of proceedings and also to entitle them to take steps in that regard - in case of transfer of appeals from one sub-court to another transferee court issues notice to that effect - notice of transfers received by petitioner and his counsel - revision dismissed. - - on a consideration of the oral as well as the documentary evidence. 188 of 1977, the petitioner has clearly admitted that thiru palaniraiakumar. if the disposal of the appeal is ex parte and a judgment is pronounced against the respondent an application may be made by such respondent to rehear the appeal and..........in order to contest the appeal. the petitioner had engraved one thiru c. m. palaniraiakuniar as counsel. this appeal a. s. no. 178 of 1973 filed by the respondent herein before the sub court. kancheepuram was later transferred to the file of the ii additional subordinate judge. chengalvattu. as per order dated 6-12-1977 in accordance with the proceedings of the district judge. the appeal so transferred from sub court. kancheevuram. to the sub court. chenealdattu. was received be sub court. chenvalpattu on 15-12-1977 and renumbered as a. s. no. 188 of 1977 on its file and posted for hearing on 16-1-1978. from 16-1-1978 it was adjourned to 15-2-1978 and on that day. thiru d. k. sampath. advocate. chengalpattu filed vakalat in the appeal on behalf of the respondent. and the appeal was.....
Judgment:
ORDER

1. The defendant in S. No. 413 of 1972, District Munsif's Court, Tiruvellore. is the petitioner in this civil revision petition. That suit was instituted by the respondent herein for a declaration that a passage leading to the devastanam in PeriaDalam belongs to it and also for an injunction. That suit was resisted by the petitioner herein on several grounds which need not be noticed in detail for vurroses~ of the Present civil revision petition. Suffice it to. save that the learned District Munsif. Tiruvallur. on a consideration of the oral as well as the documentary evidence. dismissed the suit instituted by the respondent on 30-7-1973 apply vieved by that. the respondent preferred an appeal. in A. S. No. 178 of 1973 to Sub-Court, Kancheepuram In order to contest the appeal. the Petitioner had engraved one Thiru C. M. Palaniraiakuniar as counsel. This appeal A. S. No. 178 of 1973 filed by the respondent herein before the Sub Court. Kancheepuram was later transferred to the file of the II Additional Subordinate Judge. Chengalvattu. as per order dated 6-12-1977 in accordance with the proceedings of the District Judge. The appeal so transferred from Sub Court. Kancheevuram. to the Sub Court. ChenealDattu. was received be Sub Court. Chenvalpattu on 15-12-1977 and renumbered as A. S. No. 188 of 1977 on its file and posted for hearing on 16-1-1978. From 16-1-1978 it was adjourned to 15-2-1978 and on that day. Thiru D. K. Sampath. Advocate. Chengalpattu filed vakalat in the appeal on behalf of the respondent. and the appeal was adjourned to 27-2-1978 On 27-2-1978. the petitioner was stated to be absent and the appeal was directed to be Posted in the list for hearing on 17-41978. From 17-4-1979 the hearing of the appeal was adjourned to 18-4-1978 and on 18-4-1978 the appeal was further adjourned to 24-4-1978 On 24-4-1978. the notes paper indicates 'both not ready' and the deal was thereafter adjourned dt 12-7-1978 From 12-7-1978. the appeal was adjourned to 15-7-1978. 20-7-1978, 25-7-1978. 27-7-1978 and there-after to 29-7-1978. On 29-7-1978. arguments were heard and judgment was reserved and on 4-8-1978. the learned Subordinate Judge. Chengalpattu, on a consideration of the merits. allowed the avail setting aside the dismissal of the suit instituted by the respondent herein and decreeing it as Prayed for. On 25-7-1980, the vetitioner filed I. A. No. 140 of 1980 in A. S. No. 188 of 1977 11nd Additional Sub-Court Chengalvattu. to condone a delay of 690 davs in filing an an idlication to rehear the appeal. In the affidavit in support of that a volication. the Petitioner referred to the filing of the appeal in A. S. No. 178 of 1973, Sub-Court, Kancheepuram, by the respondent and the engaging of a counsel by the Petitioner. The Petitioner further stated that the counsel so engaged by the petitioner informed the Petitioner in 1977 that the appeal had been transferred to the Sub-Court. Chengalvattu. Even thereafter. the Petitioner claimed that the Petitioner was under the impression that a notice for the hearing of the any deal will be sent by Sub-Court, Chengalpattu but that it did not receive any such notice and that the Petitioner became aware of the result of the appeal only on 28-6-1980. The Petitioner thus claimed that the petition for restoration of the appeal had been filed within 30 days of the date of knowledge of the result of the avail and raved that the exparte disposal of the appeal should be set aside and that the avail should also be reheard on its merits.

2. That application was resisted by the respondent herein on the ground that even according to the petitioner. the petitioner was aware of the transfer of the appeal from Sub-Court. Kancheepuram to Sub-Court. Chengalpattu and that in spite of it the Petitioner did not take any status whatever for defending the appeal. It was also pointed out that the Petitioner had been informed about the result of the arveal by the respondent by communications addressed to the petitioners by the Managing trustee of the respondent. A further objection was, also r4i sod. that fore . Sub-Court Chengalvattu. . Thiru. Varada, Reddi. Advocate. offered to appear on behalf of the petitioner on 15-2-1978. The respondent also contended that the disposal of the avail was, on the merits and not ex Parte and that the petitioner has not satisfactorily explained every day's delay.

3. The learned II Additional Subordinate Judge, ChengalPattu who enouired into this application held that the Petitioner has not satisfactorily explained the delay and that the disposal of the appeal was also on the merits. and. therefore. no ground was made out to restore and rehear the avveal. disposed of earlier on 4-8-1978. It is the correctness of this order that is challenged in the civil revision Petition.

4. What is urged by the learned counsel for the Petitioner on the strength of 0. 41, R. 17 (2) C. P. C. is that the disposal of the appeal A. S. No. 188 of 1977 by the Sub-Court. Chengalvattu. is an ex parte disposal and that that appeal should be restored and reheard in the exercise of the powers under 0. 41, Rule 21, C. P.C. The learned counsel for the Petitioner further submits that the Petitioner was bona fide under the indecision that a fresh notice of the day fixed for the hearing of the avveal will be sent by Sub Court, Chengalvattu. to which court the aimeal stood transferred and since no such notice was received effective steps were not taken by the Petitioner for the conduct of the appeal and, therefore, this would be a case of non-service of notice which would be sufficient cause for the non-adherence of the Petitioner at the time when the appeal in A. S. No. 188 of 1977 was disposed of. The further contention of the learned counsel for the Petitioner is that the aonlication to set aside the ex Parte disposal of the avveal had been filed immediately after the petitioner became aware of the result of the avveal on 28-6-1980 and. therefore. the delay has been satisfactorily explained.

5. On the other hand. the learned counsel for the respondent Points out that even according to the Petitioner. the fact of the transfer of the avdeal from Sub-Court Kancheepuram to the Sub-Court. Chenealpattu. was within the knowledge of the Petitioner even in 1977 and in spite of it. no steps were taken by the Petitioner before the transferee court and therefore the petitioner cannot now turn round and say that for want of notice from Sub-Court. Chengalpattu. it did not know about the pendency of the appeal before that court and could not therefore. take necessary steps therein. It is the further submission of the learned counsel for the remolding that a perusal of the notes paper particularly the entry dated 24-41978 would indicate that the petitioner had also entered appearance through counsel. as otherwise the entry 'both not ready' would not have been made therein and this, according to the learned counsel for the respondent. supports its case that the petitioner was represented by counsel or at any rate counsel offered to appear though eventually he did not and, therefore the petitioner was fully aware of the pendency of the anDeal. but did not take any steps.

6. it is not now in dispute that notice of the appeal in A. S. No. 178 of 1973, Sub-Court.* Chengalpattu was given to the petitioner and that a counsel of the name of Thiru C. M., Palaniraiakumar was also engaged by the petitioner to defend the anneal. In paragraph 1 of the affidavit filed support of the application I. A. No. 140 of 1980. in A. S. No. 188 of 1977, the petitioner has clearly admitted that Thiru Palaniraiakumar. the counsel engaged by the Petitioner had informed the petitioner in 1977 that the appeal had been transferred to the SubCourt, Chengalvattu. From this it is obvious that the petitioner had knowledge of the transfer of the appeal A. S. No. 178 of 1973 Sub-Court Kancheepuram to the SubCourt. Chengalpattu and therefore, one would have normally expected the petitioner to have taken further steps with reference to the appeal so transferred before Sub-Court, Chenglpattu, The omission according to the petitioner, to take such steps was on account of an impression stated to have been entertained by the petitioner that another fresh summons or notice will be sent by Sub-Court. Chengalpattu. to the petitioner and that since such a notice was not sent the petitioner was unaware of the anneal and it had been disposed of on 4-8-1978 without the knowledge of the petitioner as regards the hearing of the anneal, which later came to be known by the petitioner only on 28-6-1980. Under Order 41, Rule 14, C. P. Code, provision is made for'service of notice on the respondent or on his pleader in the'same manner provided for the service of summons an a defendant 0. 41, Rule 14 (2), C. P.C. enables the appellate court to effect service in the appeal by itself. Order 41, Rule 15, C. P. C. states that the notice to the resvondent in the appeal should declare that if he does not appear on the day fixed the appeal will be heard ex parte. Order.41, Rule 17 (1), C. P. C. provides for the dismissal of the anneal when the appellant fails to ad near on the day fixed for the hearing. Order 41, Rule 17 (2), C. P. C. declares that even when the anveal is disposed of in the absence of the respondent but in the presence of the appellant such hearing of the appeal and disposal is only ex arte. Under Order 41, Rule 21, C. P. C. if the disposal of the appeal is ex parte and a judgment is pronounced against the respondent an application may be made by such respondent to rehear the appeal and if the court is satisfied that notice was not duly served or that the respondent was Prevented by sufficient cause from endearing when the appeal was called on for hearing, the court shall rehear the anveal on such terms as to costs or otherwise as it thinks fit.

7. In the present case. the question is whether the petitioner has established that notice of the appeal was not duly served on him. Normally. a partv 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 pendencv 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 Order 41, Rule 14, C. P. C.

8. It would be a very salutary Practice if even in cases of appeals transferred from one Sub-Court to another owing to exigencies of workload. 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 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 two it is essential that parties must be informed by the transferee court in order to enable them to appear before the transferee court and contest the proceedings so transferred by engaging other counsel and taking necessary steps in that regard. In the absence of any provision 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 avvellate court as the case may be. It is very necessary and desirable not 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.

9. However in the instant case even according to the petitioner notice had been received by the Petitioner in A. S. No. 178 of 1973, Sub-Court, Kancheepuram and a counsel had also been engaged who had also discharged his duty by communicatory the transfer of the appeal from Sub Court, Kancheepuram to SubCourt. Chengalvattu. It cannot therefore, be said that the petitioner did not have any knowledge of the pendency of the appeal before Sub-Court, Chenralpattu and that it had been misled on account of the absence q1 a notice to that effect from Sub-Court. ChengalVattu. The Petitioner undoubtedly had knowledge of the transfer of the appeal from Sub-Court. Kancheepur&m; to SubCourt, Chengalpattu even in 1977 and even thereafter the Petitioner did not take any serious steps to defend the appeal. Under these circumstances the explanation attempted by the Petitioner that it was expecting a notice from Sub Court. ChengalDittu and that since it did not receive any such notice. it was unaware of the pendency of the appeal before that Court cannot be accepted No doubt. the disposal of the appeal, in the absence of the Petitioner herein. would nevertheless be an ex parte disposal under Order 41, Rule 17 (2), C. P. C. But even so. the petitioner has not satisfied the Court that notice was not duly served or that it was Prevented by sufficient cause from appearing when the appeal was called on for hearing- In the present case. as has been already pointed out. the notice of the Pendency of the appeal in A. S. No. L78 of 1973. SubCourt. Kancheepuzain was duly served on the petitioner and the petitioner was aware also of the transfer of that appeal to Sub-Court. Chengalvattu and therefore.~ it cannot be said that the petitioner did not have the notice of the pendency of the avveal before the Sub-Court. Chengalvattu.

10. The other question that remains for consideration is. whether the Detitioner was prevented by sufficient cause from anserine when the appeal was called. As regards this. the petitioner has not attempted to say anything other than what has been referred to already, No reason has been given as to why the petitioner who was aware of the Diffidence of the appeal before Sub-Court. ChenealDattu, even in 1977 did not take any steps to defend the same. The nonreceipt of the notice. which has been stated as the only go has already been adverted to and held to be not an acceptable ground to restore the appeal. It is also not established as to how the Petitioner suddenly came to know of, the result of the avveal only on 28-6-1980 when the Petitioner was aware of the appeal before Sub-Court. Chengalvattu even in 1977 itself. It is obvious that the Petitioner though fully aware of the vendencv of the appeal before SubCourt. Chenealpattu did not take any status whatever in that regard for some reason or other and has now come forward with this application on the ground that the petitioner was expecting a notice from Sub-Court. Chezigalvattu and that it became aware of the result of the appeal onIv on 28-6-1980. As pointed out earlier. the Petitioner cannot take any shelter under the Plea that it had been misled on account of the non receipt of notice for the hearing of the appeal from the transferee court. Under the circumstances of the present case, the delay in the filing of the application to rehear the appeal has not been satisfactorily explained at all. The Court-below was, therefore, perfectly justified in dismissing the application filed by the Petitioner and that order does not-suffer from any illegality or irregularity. The civil revision Petition therefore fails and is dismissed. No costs.

11. Revision dismissed.


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