Seethai Mills Ltd. vs N.V. Perumalaswamy

P.S. Kailasam, C.J.—This appeal is filed against the judgment of Mohan. J. in Application No. 1239/75 in Company Petition No. 96/74

dismissing the said application for re-transfer of C. S. No. 113/75 on the file of this Court to the file of the City Civil Court, Madras, for trial and

disposal.

O. S. No. 3032/66 was filed by the respondent herein for recovery of Rs. 17,093.06 being the value of cotton supplied to the appellant. As the

appellant was absent, an ex parte decree was passed on 30-3-1967 by the learned City Civil Judge. For non-payment of the decree amount,

proceedings under the Company law for winding up also were started in this Court. While so, Application No. 757/75 was filed by the respondent

herein on the original side of this Court for transfer of the proceedings, namely, the application for setting aside the ex parte decree and another

application for excusing the delay in seeking to set aside the ex parte decree, to the High Court along with O. S. No. 3032/66, in which an ex

parte decree had already been passed. Mohan, J., by an order dated 11-4-1975 directed the transfer of the records in O. S. 3032/66 along with

the two applications. The application out of which this appeal arises, Application No. 1239/75, was filed by the judgment-debtor for re-transfer of

the applications to the City Civil Court, Madras. The learned Judge found that the application for setting aside the ex parte decree was belated and

that it had to be dismissed. He also found that no grounds have been made out to re-transfer all the proceedings to the City Civil Court under

Clause 13 of the Letters patent. In the result he dismissed Application No. 1239/75.

The present appeal by the judgment-debtor is against the order of the learned Judge dismissing the application for re-transfer to the City Civil

Court. We find that the order of the learned Judge in Application No. 757/75 transferring the suit and the two applications filed by the judgment-

debtor for setting aside the ex parte decree and for excusing the delay in filing the application for setting aside the ex parte decree was without

jurisdiction. Clause 13 of the Letters Patent empowers the High Court to remove and to try and determine, as a Court of extraordinary original

jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Madras subject to its

superintendence, when the High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice,

the reasons for so doing being recorded on the proceedings of the said High Court. The power under the Letters Patent is under extraordinary

original jurisdiction and from the wording of the said clause, it is confined to remove and to try and determine any suit. This contemplates the

existence of a suit pending. It is admitted in this case that a decree was passed ex parte and the suit was no longer pending. No doubt, after the suit

was decreed, two applications were filed for purposes already mentioned. But the filing of the two applications after the suit was decreed will not

make the suit pending, and as such, the transfer of the two applications along with the suit to the High Court under Clause 13 of the Letters patent

is without jurisdiction. It naturally follows that the order being void and without jurisdiction, it should be taken as not having been in existence at all.

The result will be the two applications filed for setting aside the ex parte decree and for excusing the delay in seeking to set aside the ex parte

decree will be before the City Civil Court for being disposed of according to law. In this view, it is not necessary to proceed further with the

appeal, because the two applications were in law never before the High Court. The result is the two applications, one for setting aside the ex parte

decree and the other for excusing the delay in seeking to set aside the ex parte decree will be remitted to the City Civil Court for being disposed of

on merits. We refrain from dealing with the merits of the case dealt with by the learned Judge. The City Civil Court will dispose of the matter

without in any way being influenced by the observations made by the learned Judge or by us. The appeal is allowed. There will be no order as to

costs.