JUDGMENT :

(Arvind Kumar Mishra-I, J.)

1. Heard Sri Nitin Kumar Agrawal, learned counsel for the defendant-appellants, Sri Uma Nath Pandey, learned counsel for the plaintiff-respondents and perused the material as brought on record.

2. The first appeal from order has been preferred by the defendant-appellant against the judgment and order dated 05.04.2011 passed by the Additional District Judge, Court No.8, Bulandshshr, in Misc. Case No.7 of 2008 filed under Order 41 Rule 21 of the Civil Procedure Code 1908, in Civil Appeal No.204 of 2002, Smt. Chawali Devi and others Vs. Mahendra and others, whereby the application under Order 41 Rule 21 CPC filed against the ex parte decree in the aforesaid civil appeal no.204 of 2002 has been rejected.

3. Contention, in brief, has been floated to the ambit that in this case, it so happened that at the initial stage, a declaratory original suit no.97 of 1983 was instituted by Smt. Chawali Devi wife of late Makkhan Lal and four others (Mahesh Kumar, Kamal Kumar, Rakesh Kumar and Yogesh Kumar) against the appellant Mahendra Kumar and five others. In the suit, notice was issued to the defendants which was duly served upon them. However, the written statement was filed by the defendants, in particular, the present appellant Mahendra Kumar (since deceased) and it was urged and claimed that some oral assurance was given by the plaintiff-respondents that it being the dispute between family members, the suit shall be withdrawn. Thereafter, defendant-appellant went to Ghaziabad and began to reside there for 13-14 years. In Ghaziabad, the appellant suffered from many ailments / diseases. He came back to Bulandshahr on 13.02.2008 when Subhash and Rakesh told him that the cinema hall is going to be sold by the respondents - Mahesh Kumar, Kamal Kumar, Rakesh Kumar and Yogesh Kumar as they have won litigation. Thereupon, the appellant being anxious contacted his counsel in Bulandshahr and enquired about the original suit no.97 of 1983 whereupon it transpired that the original suit was dismissed on 18.09.2002 against which an appeal was preferred by the aforesaid plaintiff-respondents which appeal was numbered 204 of 2002.

4. Learned counsel proceeded further that upon inspection of the record, the appellant came to know about fake service of notice upon him after obtaining fake signature of the appellant Mahendra Kumar on the notice, the appeal proceeded ex parte against the appellant. Service of notice is denied as notice was never received by the appellant. Notice sent to the other respondents is highly suspicious and service upon them is doubtful. It was incumbent for the lower appellate court to have matched specimen signature of the appellant brought on record by placing several documents as copies of the income tax returns whereupon the appellant had made his signature and the two signatures on income tax returns do not match with signature of the appellant as endorsed upon notice.

5. Filing of the rejoinder affidavit is not mandatory but discretionary and would not adversely affect the case of the appellant and the lower appellate court wrongly held that the objection/counter affidavit filed by the plaintiff-respondents has not been rebutted by filing any rejoinder affidavit.

6. Learned counsel for the appellants has added that insofar the judgment, order and decree dated 05.04.2011 passed by the lower appellate court is concerned, the appeal was transferred by the District Judge, Bulandshahr to the other courts of the Additional District Judges, Bulandshahr where it proceeded ex parte without ensuring compliance of Rule 89A of General Rules (CIVIL) 1957 which provides that in case proceeding of a case is transferred to another court, then in case parties are represented then either of the party or his/her counsel will be informed about the transfer before proceeding with the case and in case a party is not represented then notice shall be sent to him prior to proceeding further with the case. In th