B. N. Sapru, J. - (1.) THIS writ petition is directed against an order of the trial court dated 30-10-1980 whereby the defence of Bisheshwar Dayal was struck off for non-compliance with the provisions of Order XV Rule 5 of the Code of Civil Procedure.
(2.) THE landlords had filed a suit for ejectment and arrears of rent against Bisheswar Dayal. THE suit was instituted by filing a plaint which mentioned the name of the Court as the Court of Munsif, Bijnor. From Annexure-2 to the counter affidavit it appears that the Plaint was presented in the Court of Sri R. K. Dubey who was then exercising the powers of Munsif, Bijnor and also the Judge Small Causes. THE valuation of the suit was Rs. 1,400/-. At that time Sri R. K. Dubey had the jurisdiction to try the suit on Small Causes side upto Rs. 2,000/, Sri R. K. Dubey was transferred and he was succeeded by Sri B. M. Joshi as Munsif, Bijnor, who was also invested with the powers of Judge Small Causes but his power was limited to the pecuniary jurisdiction of Rs. 1,000/-. The suit was decreed ex parte on 5-7-1977. The petitioner applied for setting aside the ex -parte decree on 25-7-1977. The ex parte decree was set aside on 1-10-77. The case was fixed for filing of written statement on various dates. The petitioner filed his written statement on 2-3-1978. In the written statement, a plea was taken that the Munsif had no jurisdiction to entertain the suit and the proper forum for the suit was the Court of Judge Small Causes. When the matter came up before the Court on 8-5-78 the objection to jurisdiction was again taken by the defendant. On 13-8-1978 the Munsif wrote a letter to the District Judge (Annexure 2 to the counter affidavit). He found that J the suit was instituted In the Court of the Judge Small Causes but was wrongly 1 entered in the register maintained in respect of suits on original side instead of the J register maintained for Judge Small Causes suits. He found that his pecuniary M jurisdiction as a Judge Small Causes was limited to Rs. 1,000/- and as such the " suit was not triable by him. Sri B. M. Joshi also found that since the plaint was rightly presented, it would not be proper to return the plaint for presentation to a competent court. In his letter dated 15-5-1978 addressed to the District Judge after reciting the aforesaid facts Sri B. M. Joshi requested the District Judge to transfer, the case to some other court competent to try the suit. The District Judge by his order dated 18-5-1978 transferred the case to the Court of the Civil Judge to try the suit as a Judge Small Causes, Bijnor. Consquently the suit was registered in the Court of the Judge Small Causes on 28-5-1978.
(3.) FROM paragraph 11 of the counter affidavit it is clear that the information was sent from the transferee court to the counsel for the petitioner and landlord respondents informing them vide notice dated 3-1-1979 (Annexure 4 to the counter affidavit) that 9-3-1979 was the date fixed for the disposal of the case. The fact that this notice was served on the counsel for the petitioner is not clearly denied by the petitioner in his rejoinder affidavit. On 9-3-1979 an application was filed for striking off the defence on the ground of non-compliance of the provisions of Order XV Rule 5 of the Cod:; of Civil Procedure. On this application, the counsel for the petitioner endorsed that- "I am not counsel in this case as I was appearing in the Munsif court and I have no information about the institution of this case in this court and this application be delivered to the client." The assertion by the petitioner is that he was informed about the transfer of the case only on 3-3-1979.;