Judgment:
ORDER
S. Jagadeesan, J.
1. By consent of both the counsel, the civil revision petition itself is taken up for final disposal. The petitioners are the defendants in O.S. No. 54 of 1992 on the file of District Munsif Court, Ariyalur. The respondent herein filed the said suit originally on the file of the District Munsif Court, Perambalur. For administrative reasons, by order dated 27.1 1992 the suit was transferred to the District Munsif Court. Ariyalur and the first hearing was posted on 16.3.1992, on which date the counsel for the plaintiff filed vakalat on behalf of the plaintiff. Notice was ordered to the defendants by 30.3.1992. The matter was adjourned to 30.4.1992 by extending the time for parties appearance. On 30.4.1992 the matter was adjourned to 20.7.1992 for the appearance of the defendants. However, on 24.6.1992, on an application filed by the plaintiff, the hearing of the suit was advanced to 26.6.1992. On that date, the ex pane decree was passed.
2. The petitioners herein filed an application I.A No. 625 of 1993 to condone the delay of 380 days in filing the application for setting aside the ex parte decree in the said suit. The said application was dismissed by the trial court, against which the present revision has been filed.
3. The counsel for the petitioners contended that on 16.3.1992 the suit was adjourned to 30.3.1992 with a direction to take notice to the defendants. On 30.3.1992 the matter was adjourned to 30.4.1992, extending the time for the appearance of parties. On 30.4.1992, the matter was adjourned to 20.7.1992, since there was no representation on behalf of the defendants. But, however, by order dated 24.6.1992, the suit was advanced to 26.6.1992 and the exparte decree was passed. The petitioners were not served with the notice. When the lower court has directed the issue of notice on 16.3.1992, the lower court ought to have waited till the service is effected on the defendants. The petitioners were not aware about the transfer of the suit from the District Munsif Court, Perambalur to the District Court, Anyalur. Only on receipt of notice in the execution petition, they came to know about the ex parte decree dated 26.6.1992 and immediately the application has been filed for setting aside the ex parte decree with an application to condone the delay. Hence the delay is bonafide.
4. On the contrary, the counsel for the respondent contended that on 16.3.1992 at the first call before the District Munsif Court, Ariyalur the plaintiff's counsel had filed the vakalat. The transferor court had already informed the respective counsel about ihe transfer of the suit to the District Munsif Court, Ariyalur and as such there is no necessity for the issue of any summons to the defendants. The direction issued by the District Munsif, Ariyalur to take the summons to the defendants is a mistake. On realising the mistake, the suit was taken up on the ground that no fresh notice is necessary for the defendants. When there is no Rule contemplating the issue of fresh notice, the direction issued by the iransferee court cannot be taken advantage of by the defendants in the suit. There is absolutely no explanation for the delay of 380 days. Since the delay is exhorbitant one, the order of the lower court in dismissing the application needs no interference.
5. I carefully considered the contention of both the counsel. There is no dispute that the suit was originally filed before the District Munsif Court, Perambalur which subsequently transferred to the District Munsif Court, Ariyalur. In the transferee court, the first call had been fixed on 16.3.1992 and on that date the plaintiff's counsel had filed the vakalat. Hence the transferor court had informed the respective counsels about the transfer of the suit and only on that basis the plaintiff had engaged the counsel before the transferee court on the very first hearing date. There is no explanation for the non-appearance of the defendants on 16.3.1992 before I lie transferee court.
6. In the affidavit filed in support of the application for condoning the delay, the petitioners had stated thus:
Here the petitioners did not give the date on which they received the notice in the execution petition and the date on which they met the counsel. In the absence of these dates, it cannot be said that the defendant had acted without any delay, further in the evidence he has stated as follows:
It is the case of the petitioners that the counsel at Perambalur had not informed about the transfer of the suit. Their case is that their counsel is not well and did not inform them. If that be so, it cannot be said that the mistake of the counsel in not informing his clients about the transfer is a bona fide mistake, since the counsel owe a duty to his clients to inform about the stage of the proceedings. If really the counsel had not informed the petitioners about the transfer it will amount to negligence and dereliction of duty of their counsel at Perambalur. Hence, the explanation given by the petitioner in the evidence and in the affidavit is contrary. I am of the opinion that the same cannot be accepted and it is only an after thought. Since the delay in inordinate one, it cannot be lightly taken note of. Hence the lower court is perfectly right in dismissing the application for condoning the delay.
7. So far as the contention of the counsel for the petitioners that the petitioners had not been served with the notice by the transferee court and the lower court having ordered notice to the defendants ought to have waited till the service is completed, the same can not be accepted. It can be seen from the judgment reported in K. Janarthan v. Thilak Kumar (1992) 2 L.W. 505, wherein the question arose is whether it is absolutely necessary that the parties to the proceedings should be served with notice by the transferee court, in case of the transfer of suits from other courts? In the above judgment, it has been held as follows:
The question of notice was considered by this Court in Ellapuram Panchayat Union v. Sri Bhavaniamman Panchayat : AIR1981Mad246 , Ratnam, J. found that there were no Rules prescribing the issue of notice after a transfer of a suit is effected. He felt that it was necessary and imperative to make such provisions so that the principles of natural justice could be satisfied. The following passages in his judgment arc relevant and reliance is placed therein:
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 to enable him to take steps in that regard. It is on account of this that as even in matters which arc 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.
It would be a very salutary practice if even in cases of appeals transferred from one Sub Court to another owing to exigencies of work load, 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 it 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 transferee court and contest the proceedings so transferred by engaging other counsel and taking necessary steps in this regard In the absence of any provisions 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 very 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, that there should be an inflexible adherence to this retirement 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.
After the said judgment the matter was considered administratively by this Court. A note was put up by the office before the Judges for framing of appropriate Rules. The observations of Ratnam, J., were piaced before the Judges. After considering the matter this Court issued the following circular in Roc. No. 193-A/S1.R.R. in July, 1981. The following instructions were given to the subordinate courts for their guidance:
(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 endorsement of the Advocate, 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 transferred 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.
That circular will also apply only to a transfer by courts. It is seen from the first instruction that it is for the transferor court to make the parties aware of the proceedings of transfer. The second instruction applies to cases where the parties have not already been served. With regard to those cases the instruction was that a notice or fresh notice, as the case may be, shall be issued by the transferee court. Hence, the circular does not contemplate a fresh notice or summons by a transferee court in a case where summons had been served duly on parties when the proceedings were pending in the transferor court. In the present case summons had been served duly on the respondent when the matter was pending in this Court and no question of fresh notice to the respondent arises when the matter was transferred to the City Civil Court. The City Civil Court was under no obligation to issue notice to the respondent about the transfer. It was for the respondent to inform himself about the proceedings and appear before the court. Hence, the respondent cannot place any reliance on the circumstance that he was not served with summons or notice in the suit after it was taken on file in the City Civil Court.
8. From the abovesaid principle, it is clear that it is not the duty of the transferee court to inform the parties about the transfer when the parties are represented by counsel before the transferor court. In this case, there is no dispute that the parties were represented by respective counsels before the transferor court. Hence, there is absolutely no necessity for the issue of fresh summons to the defendants in the suit. The lower court is not correct in ordering notice to the defendants by its order dated 16.3.1992. When the direction for the issue of summons to the defendants is not correct, now it is not open to the petitioners herein to take advantage of the same; especially when such issue of summons or notice is not contemplated either by the Rules or by the Circulars. Hence there is absolutely no cause much less any sufficient cause for the inordinate delay in filing the application for setting aside the ex parte decree.
9. For the reasons stated above, the civil revision petition is dismissed.