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Ellapuram Panchayat Union, Periapalayam, Represented by Its Commissioner Vs. Sri Bhavaniamman Devastanam, Represented by Its Managing Trustee, P.S. Sethurathinammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1981)1MLJ382
AppellantEllapuram Panchayat Union, Periapalayam, Represented by Its Commissioner
RespondentSri Bhavaniamman Devastanam, Represented by Its Managing Trustee, P.S. Sethurathinammal
Excerpt:
- .....urged by the learned counsel for the petitioner on the strength of order 41, rule 17(2), code of civil procedure, is that the disposal of the appeal a. s. no. 188 of 1977 by the sub-court, chengalpattu, is an ex parte disposal and that that appeal should be restored and reheard in the exercise of the powers under order 41, rule 21, code of civil procedure. the learned counsel for the petitioner further submits that the petitioner was bona fide under the impression that a fresh notice of the day fixed for the hearing of the appeal will be sent by sub court, chengalpattu, to which court the appeal 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.....
Judgment:
ORDER

V. Ratnam, J.

1. The defendant in O. 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 Devasthanam in Periyapalayam 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 purposes of the present civil revision petition. Suffice it to say that the learned District Munsif, Tiruvellore, on consideration of the oral as well as documentary evidence, dismissed the suit instituted by the respondent on 30th July, 1973. Aggrieved by that, the respondent preferred an appeal in A. S. No. 178 of 1973 to the Sub-Court, Kancheepuram. In order to contest the appeal, the petitioner had engaged one Thiru C. M. Palanirajakumar as counsel. The appeal A. S. No. 178 of 1973 filed by the respondent herein before the Sub-Court, Kancheepuram, was laser transferred to the file of the II Additional Subordinate Judge, Chengalpattu, as per order dated 6th December, 1977 in accordance with the proceedings of the District Judge. The appeal so transferred from Sub-Court, Kancheepuram, to the Sub-Court, Chengalpattu, was received by Sub-Court, Chengalpattu, on 15th December, 1977 and renumbered as A. S. No. 188 of 1977 on its file and posted for hearing on 16th January, 1978. From 16th January, 1978, it was adjourned to 15th February, 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 27th February, 1978. On 27th February, 1978, the petitioner was stated to be absent and the appeal was directed to be posted in the list for hearing on 17th April, 1978. From 17th April, 1978 the hearing of the appeal was adjourned to 18th April, 1978. and on 18th April, 1978, the appeal was further adjourned to 24th April, 1978. On 24th April, 1978, the notes paper indicates, 'both not ready' and the appeal was thereafter adjourned to 12th July, 1978. From 12th July, 1978 the appeal was adjourned to 15th July, 1978, 20th July, 1978, 25th July, 1978, 27th July, 1978 and thereafter to 29th July, 1978. On 29th July, 1978, arguments were heard and judgment was reserved and on 4th August, 1978, the learned Subordinate Judge, Chengalpattu, on a consideration of the merits, allowed the appeal setting aside the dismissal of the suit instituted by the respondent herein and decreeing it as prayed for. On 25th July, 1980, the petitioner filed I. A. No, 140 of 1980 in A. S. No. 188 of 1977, II Additional Sub-Court, Chengalpattu, to condone a delay of 690 days in filing an application to rehear the appeal. In the affidavit in support of that; application, 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 Sub-Court. Chengalpattu. Even thereafter, the petitioner claimed that the petitioner was under the impression that a notice for the hearing of the appeal 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 28th June, 1980. The petitioner thus claimed that the petition for restoration of the appeal had been filed within thirty days of the date of knowledge of the result of the appeal and prayed that the ex-parte disposal of the appeal should be set aside and that the appeal 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 steps whatever for defending the appeal. It was also pointed out that the petitioner had been informed about the result of the appeal by the respondent by communications addressed to the petitioner by the Managing Trustees of the respondent. A further objection was also raised before Sub-Court, Chengalpattu, that Thiru Varada Reddy, Advocate, offered to appear on behalf of the petitioner on 15th February, 1978. The respondent also contended that the disposal of the appeal was on the merits and not ex parte and that the petitioner has not satisfactorily explained everyday's delay.

3. The learned II Additional Subordinate Judge, Chengalpattu, who enquired 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 appeal, disposed of earlier on 4th August, 1978. It is the correctness of this order that is challenged in this civil revision petition.

4. What is urged by the learned Counsel for the petitioner on the strength of Order 41, Rule 17(2), Code of Civil Procedure, is that the disposal of the appeal A. S. No. 188 of 1977 by the Sub-Court, Chengalpattu, is an ex parte disposal and that that appeal should be restored and reheard in the exercise of the powers under Order 41, Rule 21, Code of Civil Procedure. The learned Counsel for the petitioner further submits that the petitioner was bona fide under the impression that a fresh notice of the day fixed for the hearing of the appeal will be sent by Sub Court, Chengalpattu, to which Court the appeal 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-appearance of the petitioner at the time when the appeal in A. S. No. 188 of 1977 was disposed of. The farther contention of the learned Counsel for the petitioner that the application to set aside the ex parte disposal of the appeal had been filed immediately after the petitioner became aware of the result of the appeal on 28th June, 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 appeal from Sub-Court, Kancheepuram, to the Sub-Court, Chengalpattu, 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 respondent that a perusal of the notes paper, particularly, the entry dated 24th April, 1978 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 appeal, 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, Kancheepuram, was given to the petitioner and that a counsel of the name of Thiru C.M. Palanirajakumar was also engaged by the petitioner to defend the appeal. In paragraph 1 of the affidavit filed in support of the application I. A. No. 140 of 1980 in A.S. No. 188 of 1977, the petitioner has clearly admitted that Thiru Palanirajakumar, the counsel engaged by the petitioner, had informed the petitioner in 1977 that the appeal had been transferred to Sub-Court, Chengalpattu. 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 Sub-Court, 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, Chengalpattu. 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 seat, the petitioner, was unaware of the appeal and it had been disposed of on 4th August, 1978 without the knowledge of the petitioner as regards the hearing of the appeal which later came to be known by the petitioner only on 28th June, 1980. Under Order 41, Rule 14, Code of Civil Procedure, provision is made for service of notice on the respondent or on his pleader in the same manner provided for the service of summons on a defendant. Order 41, Rule 14(2), Code of Civil Procedure, enables the appellate Court to effect service in the appeal by itself. Order 41, Rule 15. Code of Civil Procedure, states that the notice to the respondent 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), Code of Civil Procedure, provides for the dismissal of the appeal when the appellant fails to appear on the day fixed for the hearing. Order 41, Rule 17(2), Code of Civil Procedure, declares that even when the appeal 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-parte. Under Order 41, Rule 21, Code of Civil Procedure, if the disposal of an 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 appearing when the appeal was called on for hearing, the Court shall rehear the appeal on such terms as to costs or otherwise as it thinks fit.

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 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 no 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, Code of Civil Procedure.

7. 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 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 if 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 to 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 appellate Court as the case may be. It is necessary and desirable, may 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 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.

8. 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 has also been engaged who had also discharged his duty by communicating the transfer of the appeal from Sub-Court, Kancheepuram, to Sub-Court. Chengalpattu. It cannot, therefore, be said that the petitioner did not have any knowledge of the pendency of the appeal before Sub-Court, Chengalpattu, and that it had been misled on account of the absence of a notice to that effect from Sub Court, Chengalpattu. The petitioner undoubtedly had knowledge of the transfer of the appeal from Sub Court, Kancheepuram; to Sub Court, Chengalpattu; 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, Chengalpattu, and that since it did not receive any such notice, ill 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 exparte disposal under Order 41, Rule 17(2), Code of Civil Procedure. 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. No. 178 of 1973, Sub-Court, Kancheepuram, was duly served on the petitioner and the petitioner was aware also of the transfer of that appeal to Sub Court. Chengalpattu, and therefore, it cannot be said that the petitioner did not have the notice of the pendency of the appeal before Sub Court, Chengalpattu.

9. The other question that remains for consideration is, whether the petitioner was prevented by sufficient cause from appearing when the appeal was called. As regards this, the petitioner has not attempted to do anything other than what has been referred to already. No reason has been given as to why the petitioner who was aware of the pendency of the appeal before the Sub-Court, Chengalpattu, even in 1977 did not take any steps to defend the same. The non-receipt of the notice which has been stated as the only ground has already been adverted to and held to be not an accept-able ground to restore the appeal. It is also not established as to how the petitioner suddenly came to know of the result of the appeal only on 28th June, 1980; when the petitioner was aware of the appeal before Sub Court, Chengalpattu, even in 1977 itself, it is obvious that she petitioner, though fully aware of the pendency of the appeal before Sub Court, Chengalpattu, did not take any steps whatever in that reagard for some reason or other and has now come forward with this application on she ground that the petitioner was expecting a notice from Sub-Court, Chengalpattu and that it became aware of the result of the appeal only on 28th June, 1989. 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.


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