Rajasthan High Court
Shivcharan Lal S/O Ruparam vs Pappu Khan S/O Abudl Kahn on 10 February, 2021
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 11402/2020
1. Shivcharan Lal S/o Ruparam, Aged About 62 Years, R/o
Sahani Para Saramathura Tehasil Baseri District Dholpur
Rajasthan
2. Vedprakash S/o Ruparam, Aged about 60 years, R/o
Sahani Para Saramathura Tehasil Baseri District Dholpur
Rajasthan
----Petitioners-Plaintiffs
Versus
1. Pappu Khan S/o Abudl Khan, R/o Sahani Para
Saramathura Tehasil Baseri District Dholpur
2. Jallo Khan S/o Zahur Khan, R/o Sahani Para Saramathura
Tehasil Baseri District Dholpur
----Respondents-Defendants
For Petitioner(s) : Mr. Sachin Kumar Mittal, Advocate
HON'BLE MR. JUSTICE PRAKASH GUPTA
Order
10/02/2021
This writ petition has been filed by the petitioners-
plaintiffs (for short, 'the plaintiffs') against the order dated
25.9.2019 passed by Addl. District Judge, Bari (for short, 'the
Appellate Court') in Civil Misc. Appeal No. 6/2016, whereby the
appellate Court allowed the appeal filed by the respondent-
defendant no.1 Pappu Khan and set-aside the order dated
18.5.2016 passed by Gram Nyayalaya, Basedi, Distt. Dholpur.
Facts of the case are that the plaintiffs filed a suit
against the defendants for permanent injunction and removal of
encroachment in the Court of Civil Judge, Bari (for short, 'the trial
court'), where the defendants did not appear and resultantly ex-
parte proceedings were drawn against them on 19.10.2000.
(2 of 5) [CW-11402/2020]
Subsequently the defendants filed an application under Order 9
Rule 7 CPC, which was allowed and ex-parte proceedings were
set-aside vide order dated 15.10.2003. Thereafter the defendants
filed their written statement and the trial court framed the issues.
Thereafter the trial court recorded the evidence of the plaintiffs on
17.11.2010. In the meantime, on 26.10.2010, District Judge,
Dholpur directed to transfer the case alongwith other cases to
Gram Nyayalaya, Basedi. Accordingly, on 15.11.2010, the case
was transferred from the Court of Civil Judge, Bari to Gram
Nyayalaya, Basedi and on the next date i.e. on 18.11.2010, the
case was listed in the said court, but on that date, neither the
plaintiffs nor their advocate, nor defendants and nor their
advocate appeared before Gram Nyayalaya, Basedi. On that day,
Gram Nyayalaya posted the matter for 23.12.2010 for passing the
appropriate order. On 23.12.2010, plaintiffs' advocate was present
before Gram Nyayalaya, Basedi, but the defendants or their
advocate remained absent, as such the matter was adjourned to
20.1.2011. On 20.1.2011, again neither defendants nor their
advocate was present before Gram Nyayalaya, Basedi, therefore,
ex-parte proceedings were drawn against them and vide judgment
dated 10.2.2011, suit was partly decreed ex-parte. The
defendants filed an application under Order 9 Rule 13 CPC for
setting aside the said ex-parte judgment and decree dated
10.2.2011. An application under Section 5 of the Limitation Act
was also filed for condonation of delay. The plaintiffs filed reply to
the said applications. Gram Nyayalaya, Basedi vide its order dated
18.5.2016 dismissed the application under Order 9 Rule 13 CPC.
The defendant no.1 filed an appeal before the Appellate Court. The
Appellate Court vide its judgment dated 25.9.2019 allowed the
(3 of 5) [CW-11402/2020]
appeal and set-aside the order dated 18.5.2016 passed by Gram
Nyayalaya, Basedi subject to payment of cost of Rs. 3000/-.
Hence, this writ petition.
Learned counsel for the plaintiffs submits that after
initiation of ex-parte proceedings, the matter was sent for
settlement in Lok Adalat. The notices of Lok Adalat were sent by
Gram Nyayalaya, Basedi to the plaintiffs and the defendants and
they were served on both the parties, but the defendants did not
appear before the Lok Adalat. In such circumstances, Gram
Nyayalaya, Basedi rightly decreed the suit ex-parte vide judgment
dated 10.2.2011. The defendants filed the application under Order
9 Rule 13 CPC, which came to be dismissed vide order dated
18.5.2016. However, on filing the appeal thereagainst, the appeal
has been allowed and the order dated 18.5.2016 passed by Gram
Nyayalaya, Basedi has been set-aside, despite the fact that the
cause for non appearance, as disclosed by the defendants, was
not sufficient for setting aside ex-parte decree. He further submits
that according to Section 24 CPC, District Judge can transfer cases
from one court to another court by a common order and it is not
necessary for the Court to issue summons / notices again to the
respective parties in each and every case. Only a list of the
transferred cases may be affixed in the court premises for
information and that is sufficient notice. In the instant case, notice
was affixed in the court premises and a copy of the notice was
sent to Bar Association, Bari. However, the learned appellate court
has committed material illegality while setting aside the order
passed by Gram Nyayalaya, Basedi. On this count, the impugned
judgment dated 25.9.2019 passed by the Appellate Court is liable
to be quashed and set-aside.
(4 of 5) [CW-11402/2020]
Heard. Considered.
It is admitted fact that the suit was filed in the Court of
Civil Judge (Jr. Division), Bari, District Dholpur. On 27.9.2010,
although learned counsel for the parties were present and the
matter was adjourned to 17.11.2010 for cross-examination of the
plaintiffs, but in the meanwhile in compliance of the order dated
26.10.2010 passed by District Judge, Dholpur, vide order dated
15.11.2010, the matter was transferred to the Court of
Nyayadhikari, Gram Nyayalaya, Basedi. On the said date, i.e. on
15.11.2010, neither the plaintiffs nor defendants were present nor
their respective advocates were present. In this way, they were
not having any knowledge with regard to transfer of the case.
Neither any notice was given to them nor anything was brought on
record to show that a copy of the notice was sent to the Bar
Association, Badi and/or pasted on the notice board of the court of
Civil Judge (Jr. Division), Basedi. For this reason, on 18.11.2010
when the matter was taken up by Nyayadhikari, Gram Nyayalaya,
Basedi, Dholpur, again neither plaintiffs appeared nor defendants
appeared nor their respective advocates appeared. Resultantly,
ex-parte proceedings were drawn against them on 20.1.2011 and
ex-parte judgment and decree came to be passed. This would be
fortified from the fact that the respondents-defendants mentioned
in the application that on 2.7.2011 when the plaintiffs informed
about passing the ex-parte judgment and decree, they came to
know about it and immediately thereafter applied for certified copy
of the orders and filed the application under Order 9 Rule 13 CPC
alongwith the application under Section 5 of the Limitation Act.
So far as the notice for Lok Adalat sent by Taluka Legal
Services Authority was concerned, the appellate court observed
(5 of 5) [CW-11402/2020]
that although the same was issued to the defendants and
reported to have been served on their relative, but the
relationship of the respondents-defendants with the person who
received the notice was not mentioned. In this view of the matter,
service of notice for Lok Adalat sent by Taluka Legal Services
Authority was not treated as sufficient.
As per the averments made in the petition, in the year
2010, State Government established many Gram Nyayalayas and
the power to transfer the case was given to District Judges. In this
view of the matter, it cannot be said that the case was transferred
suo-moto by the District Judge and rather on the basis of
directions of the superior authority, the case was transferred.
The cause for non appearance of the defendants was
sufficient cause, moreso in view of the fact that where cases are
transferred by virtue of general order of transfer for various
reasons, one of them may be creation of new court, many counsel
don't shift their practice to the station where cases are transferred
or new court is established and the cases remain unattended.
This writ petition has been filed under Article 227 of the
Constitution of India. The power under Article 227 of the
Constitution is to be exercised in cases of jurisdictional error,
apparent perversity, patent illegality or manifest injustice, which is
not the situation here in this case.
For the aforesaid reasons, I find no force in this writ
petition and the same being bereft of any merit, is liable to be
dismissed, which stands dismissed accordingly.
(PRAKASH GUPTA),J
DILIP KHANDELWAL /1
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