Bhagwati Prasad vs Madhavi Balutia and Others

B.S. Verma, J.—Heard learned Counsel for the parties.

Learned Counsel for Respondents states that he does not want to file counter affidavit and revision be disposed of at the admission stage itself. He further states that the matter involves a legal issue and the order passed by Additional District Judge, is a speaking order.

By means of this revision, preferred u/s 25 of Provincial Small Causes Courts Act, against the judgment and order dated 27.05.2011, passed by Ist F.T.C./Additional District Judge, Haldwani, Nainital, in Misc., Bhagwati Prasad v. Smt. Madhavi Balutia and Ors. Case No. 26 of 2010, whereby the application paper No. 6C, moved u/s 5 of the Limitation Act, has been rejected.

According to the revisionist, a, Smt. Madhavi Balutia and Ors. v. Bhagwati Prasad S.C.C. suit No. 08 of 2009, for recovery of rent and ejectment, has been filed in the court of Judge Small Causes Court/District Judge, Nainital. Notices were issued to the revisionist/Respondent but were served upon the son of the revisionist/Respondent. Learned District Judge, deemed sufficient service on Respondent and on 31.08.2009, proceeded ex parte. Thereafter on 15.09.2009, the case was transferred to the court of Additional District Judge/Ist F.T.C., Haldwani. Learned Counsel for revisionist has contended that no notice under Rule 89-A of General Rules (Civil), was issued to the revisionist/Respondent after transfer of the case to the court of Additional District Judge/Ist F.T.C., Haldwani, which is mandatory in nature. Rule 89-A of General Rules (Civil), is being reproduced as under:

89-A. Procedure to be followed on transfer or withdrawal of cases -(1) When a case, i.e. a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed, is transferred from one court to another, the former court shall record the order of transfer in the order-sheet and get it signed by counsel of the party or parties, if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted.

(2) A note to the effect that a party or the parties have been informed in accordance with Sub-rule (1) shall be made on the record by the transferring court.

(3) Where cases are transferred in a large number the court from which they are transferred shall besides following the procedure laid down in Sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be posted on the notice-board of the local bar association for information of the members of the bar and another copy to be posted on the notice board of the court for information of the general public. It shall also send to the other court along with the records of the transferred cases, a copy of the list (or relevant extract of it); the other court shall post it on its own notice board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being posted on the notice board of the bar association.

(4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer.

(5) In sub-rules (1) to (4) ''transfer'' includes withdrawal of a case.

Learned Counsel appearing on behalf of the opposite party has relied upon the judgment passed by this Court, reported in, Shri Lalita Prasad Lakhera v. Shri Satya Prasad Vyas 2011 (1) UAD 2010, wherein in para-11 while rejecting the revision it has been observed as under:

The only ground of challenge raised by the learned Counsel for the applicant is that after the case was transferred from Dehradun to Rishikesh, it was imperative for the transferee court to issue notice again to the tenant as required under Rule 89-A of the General Rules (Civil). The submission of the learned Counsel for the tenant was attractive in the first blush, but the Court finds that such arguments cannot be taken into consideration at this stage. There is nothing to indicate in the application under Order IX Rule 13 of the CPC to the effect that such a specific ground was raised before the court below nor is there any assertion before this Court that such ground was argued before the trial court which has not been considered. Consequently, at this stage, the Court is not inclined to consider this submission since the same was not raised before the trial court while addressing the application under Order IX Rule 13 of the Code of Civil Procedure....

Learned Counsel for the revisionist has relied upon the judgment of the Apex Court, reported in, Reena Sadh Vs. Anjana Enterprises, , wherein in case of setting aside ex parte decree, it has been held in para-22 that after transfer of a case, issuance of notice is mandatory in nature. In the case at hand, this fact is not disputed that no notice was issued by Additional District Judge to the Respondent. So far as question of legal issue is concerned, it is the Advocate who has to raise such issue and not the litigant. Therefore, on this sole ground, revision is liable to be allowed. The revision is allowed. Learned Additional District Judge, shall hear and decide application under Order IX Rule 13 C.P.C., on merit, as expeditiously as possible.