1993 Supreme(All) 282

IN THE HIGH COURT OF ALLAHABAD
ASHIM KUMAR BANERJEE
AKTTARYAR KHAN - Appellant
Versus
AZAHAR YAR KHAN - Respondents
Civil Revision 553 Of 1992
Decided On : 05/14/1993

Compliance of the provisions of Rule 89a of the General Rules (Civil) is mandatory and the court cannot exercise its jurisdiction with material irregularity by applying the provisions of Order 8, Rule 10, C. P. C. and decreeing the plaintiffs suit without calling upon the plaintiff to give evidence and without the plaintiff giving evidence in support of his case.

Headnote:

SMALL CAUSE COURTS ACT - SECTION 17 - ORDER 8 RULE 10 C.P.C. - ORDER 9 RULE 13 C.P.C. - GENERAL RULES (CIVIL) RULE 89A - TRANSFER OF SUIT - NON-COMPLIANCE OF RULE 89A - EX PARTE DECREE - SETTING ASIDE - CONDITIONS PRECEDENT FOR ORDER 8 RULE 10 C.P.C. - EVIDENCE REQUIRED EVEN IN THE ABSENCE OF WRITTEN STATEMENT.

Fact of the Case:

Suit for recovery of arrears of rent and damages and for ejectment of defendants from the shop in dispute was filed in the court of the District Judge and summons were directed to be issued to the defendants. The suit was subsequently transferred to the court of IIIrd Additional District Judge without any information or notice to the defendant-applicants either from the court of the District Judge or from the transferee court. The defendants did not appear before the transferee court nor did they file any written statement. The court fixed 20-12-1991 for final hearing. On the said date the court found that despite personal service on the defendants they were neither present nor any written statement had been filed. Consequently the court decreed the suit against the defendants under Order 8, Rule 10, C. P. C. The defendants filed an application purporting to be under Order 9, Rule 13, C. P. C. read with Rule 89a of the General Rules (Civil) for setting aside the ex parte decree dated 9-4-1992 and for restoration of the suit to its original number and for setting aside the ex parte decree dated 9-4-1992.

Finding of the Court:

The court found that there was no compliance of Rule 89a of the General Rules (Civil) and that the court below had exercised its jurisdiction with material irregularity by applying the provisions of Order 8, Rule 10, C. P. C. and decreeing the plaintiffs suit on 9-4-1992. The court also found that the court below had not called upon the plaintiff to give evidence and that the plaintiff had not given evidence in support of his case.

Issues: 1. Whether the provisions of Rule 89a of the General Rules (Civil) were complied with? 2. Whether the court below had exercised its jurisdiction with material irregularity by applying the provisions of Order 8, Rule 10, C. P. C. and decreeing the plaintiffs suit on 9-4-1992? 3. Whether the court below had called upon the plaintiff to give evidence and whether the plaintiff had given evidence in support of his case?

Ratio Decidendi: 1. The court held that there was no compliance of Rule 89a of the General Rules (Civil) as the transferor court had not recorded that the defendants had been informed about the transfer, the transferee court had not recorded any satisfaction that the defendants had been informed of the transfer, and there was no finding or evidence to show that the notice was pasted on the notice board for information regarding the transfer of the case. 2. The court held that the court below had exercised its jurisdiction with material irregularity by applying the provisions of Order 8, Rule 10, C. P. C. and decreeing the plaintiffs suit on 9-4-1992 as there was no express order of the court granting time to the defendants for filing written statement and the court had not called upon the plaintiff to give evidence and the plaintiff had not given evidence in support of his case. 3. The court held that the court below had not called upon the plaintiff to give evidence and that the plaintiff had not given evidence in support of his case.

Final Decision: The revision was allowed, the defendants application for setting aside the ex parte decree dated 9-4-1992 stands allowed and the order dated 7-12-1992 passed by the court below is set aside. The court below shall now fix a date for filing of the written statement by the defendants for which notice will be issued to the defendants as well as their counsel. The court below will proceed with the trial of the suit as expeditiously as possible.