- (1.) THIS revision petition is directed against an order setting aside the exparte decree passed in O.S. No. 2353 of 1991 on the file of the Seventh Assistant Judge, City Civil Court, Madras. The undisputed facts are as follows: The petitioners herein filed an original petition for leave to file a suit as indigent persons in this Court on the original side on 10-10-1975. In the original petition, notice was ordered to the respondents therein, the 8th respondent therein being the respondent herein. He entered appearance through counsel on 29-6-1976. After the petition was ordered, the suit was registered as C.S. No. 389 of 1977. Once again, the respondent engaged counsel and T. Raghavan. T. Scshadri and Mailsami filed vakalat for him on 11-4-1978. On the passing of the Tamil Nadu Civil Courts Act 34 of 1980 enhancing the pecuniary jurisdiction of the City Civil Court and providing that the suits pending in this court of the value below the pecuniary limits mentioned therein, shall stand transferred to the City Civil Court, the proceedings in the suit were forwarded to the City Civil Court. The papers were received in the City Civil Court on 2-7-1981 and the suit was numbered there as O.S. No. 2353 of 1981. It was called in the Second Additional Court. A copy of the plaint was filed with suitable amendments in view of the change of forum on 11-8-1981. The Court directed fresh summons to the 2nd defendant and notice to counsel for other defendants returnable on 11-9-1981. The matter was being adjourned for the same purpose till 19-9-1981 on which date the matter was posted to 30-9-1981. On 30-9-1981, the 7th defendant's counsel filed vakalat. The Court recorded that fresh summons had been issued to the second defendant and return thereof was to be awaited. With regard to defendants 3, 4, 10, 12, 14 and 15, the Court adjourned the matter to 22-10-1981 for filing vakalat and written statement. On 22-10-1981 the Court recorded that summons issued to the 2nd defendant was returned unserved for want of residence and fresh summons was directed to the correct address. It was also recorded that vakalat and written statements were filed for defendants 3, 4, 5, 10, 11, 12, 15 and 16. The further entry contained a direction to issue fresh summons to defendants 2, 6, 10 and 13. As regards others, including the respondent herein it was adjourned to 18-11-1981 for written statement On 18-11-1981 the matter was adjourned to 15-12-1981 with a similar entry. On 15-12-1981 it was recorded that the 9th defendant's counsel had filed vakalat and the 6th defendant was set ex parte as he was absent in spite of service and fresh summons was directed to defendants 2, 10 and 13. Time for filing written statement was granted to others. The names of counsel for defendants 3, 10, 15 and 17 were noted. The matter was adjourned to 19-1-1982. From 19-1-1982 it was adjourned to 5-2-1983 with similar entries. On 24-2-1983 the suit was transferred to the 7th Assistant Judge to be called along with O.S. No. 1018 of 1979 on 25-2-1983. On the later date the matter was adjourned for written statement of defendants to 11-4-1983. It was further adjourned to 15-6-1983, 30-6-1983 and various other dates upto 18-10-1983. On 18-10-1983, the following entry is found: ?It is seen from records that written statement of defendants 2, 3, 8, 10, 12, 13, 14 and 17 were not filed. T.E. 3-11-83?. By similar entries, time was being extended from that date onwards upto 3-4-1986. On that date, it was entered that the written statement of defendants 2, 8, 10, 12, 13, 14, 17 and 24 to 26 were not filed and they were called absent and set exparte. The matter was posted to 7-4-1986 for issues. Ultimately, the suit was decreed on 13-5-1986.
(2.) THE respondent herein filed I.A. 13967 of 1988 on 1-8-1988 under O. 9, R. 13, C.P.C. for setting aside the decree passed on 13-5-1986. In the affidavit filed in support of the application he claimed that he had no knowledge of the transfer of the suit to the City Civil Court and the subsequent proceedings there-in. According to him, he came to know of the matter only on 28-7-1988, pursuant to certain notices issued by the petitioners in other proceedings claiming to be Receivers. THE application was opposed by the petitioners therein THE trial Court has accepted the application and passed an order setting aside the exparte decree. THE order was passed on 7-2-1991. It is the said order that is challenged in this revision petition. The following reasons are given by the trial Court for setting aside the exparte decree: (a) It is not proved that after the suit was transferred from the High Court to the City Civil Court, notice was given to the respondent herein. (b) There is no entry that the respondent appeared before the Court in the proceedings or his counsel appeared in the matter, (c) The facts pleaded by the petitioners herein to show that the respondent had notice of the proceedings and also knowledge of the same have not been proved. I will give the details a little later, (d) It is not proved that the respondent is aware of the transfer of the proceedings from the High Court to the City Civil Court, (e) It has been held in Krishnaji v. Marnamrao A.I.R. 1977 Bombay 36 that a vakalat filed in one Court will not hold good if the proceeding is transferred to another Court, (f) It has been held in Kishore Kumar v. Basudeo Prasad A.I.R. 1977 Patna 131 that after the proceeding is transferred to a Court, the transferee Court shall issue notice to the parties once again. Hence, there is sufficient reason for setting aside the exparte decree. Some interesting questions of law have been argued before me by counsel on both sides. The main contention of the petitioners is that the application for setting aside the ex parte decree is barred by limitation and in the absence of any application for condonation of the delay under S. 5 of the Limitation Act, the Court below had no jurisdiction to set aside the exparte decree. It is also argued that there is no rule prescribing the issue of notice of fresh summons to parties after the proceeding is transferred from one court to another if the parties had been served already while proceedings were pending in the transferor Court. It is further argued that on the facts of this case, there is ample evidence to show that the respondent had knowledge of the proceedings in the City Civil Court and counsel were also appearing for him and taking time to file written statement. Per contra, it is contended by the respondent that the proceeding in the City Civil Court is entirely a fresh suit and once it is numbered in the City Civil Court, fresh summons ought to have been issued as if the suit has been instituted for the first time in that court. According to respondents, though the court directed notice to the counsel, no such notice was issued in fact, and the respondent was never made aware of the proceedings in the City Civil Court. It is argued that the second part of the third column of Art. 164 of the Limitation Act would apply and the starting point of limitation is only the knowledge of the respondent of the decree. As the respondent got knowledge of the decree only on 28-7-1988, his application filed on 1-8-1988 was well within time and it was not barred by limitation. Before considering the questions of law argued by counsel on both sides, I will discuss the evidence on record and give my findings on the facts. I am quite aware that this is a revision petition and S. 115 C.P.C. contains limitations within which this Court should act under that section. As I am of the view that in the present case, the order of the court below is vitiated by its failure to advert itself to the relevant materials on record, the finding given by the court below is perverse and in that situation, it is open to this Court to interfere under S. 115, C.P.C. A Full Bench of the Allahabad High Court in Shambhu Dayal v. Basdeo Sahai A.I.R. 1970 Allahabad 525 has ruled thus: ?If a court omits to consider a material on record having a bearing (in this case the material had a vital bearing) on the question to be decided by it or fails to apply its mind to or to record a finding on a crucial aspect of the case which cannot be ignored in the determination of the controversy before the Court, it certainly acts illegally or at least with material irregularity in the exercise of its jurisdiction. I may refer? in this connection to Sher Singh v. Jt. Director of Consolidation 1969 All L.J. 38.?
(3.) IT has also been pointed out by this Court in Arukkani Ammal v. Gurusamy (1987) I M.L.J. 32 = 100 L.W. 707. ?The power of the Court to set aside an exparte decree should be exercised judicially, and unless sufficient cause is shown for non-appearance on the day on which the suit is fixed for hearing, there will be no jurisdiction or justification for the trial Court to set aside the ex parte decree?. The tendency on the part of litigants to take exparte decrees casually and make applications at leisure to set them aside should be curbed and the court should scrutinise the same with proper care having regard to the stringent provisions of S. 5 of the Limitation Act. In the present case, the respondent has given evidence as P.W. 1 in support of his version that he had no knowledge of the proceeding before 28-7-1988. The court below has token it for granted that his ipse dixit should be accepted without weighing his evidence against the admitted facts and circumstances. A Court of fact should always consider, in the first instance, whether the deposition of a party should be believed or not. For arriving at a conclusion on that aspect of the matter, the court should take into account the entire deposition and the various other circumstances available on record and conclude whether his evidence is worthy of acceptance. In the present case, the trial Court has failed to take note of certain clinching admissions made by the respondent as P.W. 1. He has stated that he engaged Mr. Raghavan as counsel, for him in the High Court. He has admitted that when the matter was in the High Court he used to meet his Advocate Mr. Raghavan very often. It should be remembered that the matter was pending in the High Court from 1975 to 1981. He has also admitted that after the case was transferred to the City Civil Court Mr. Raghavan and two others were his Advocates. In fact, he has added an emphasis by using the Tamil word which could be equated with the word ?only?. The sentence reads thus: Tamil He has further admitted that his Advocates would give him information as to whatever takes place in the case in the following words:? Tamil After making the above admissions, he has probably realised that he has made some damaging statements. Hence, he has added that he met Mr. Raghavan last in 1978 and from 1978 to 1988, he did not meet the three Advocates. That subsequent version is clearly contradictory to the earlier version that he used to meet his Advocate Mr. Raghavan very often when the matter was pending in the High Court. I have already pointed out that the matter was pending till 1981. Having realised that his statement that he was meeting Mr. Raghavan till 1981 would cause damage to his case, he has chosen to add that he did not meet him after 1978 till 1988. ;