2004 PLP 1981 (CLC)

Representation

• ----Ss. 24-A(2) & O.III, R.5---Transfer of suit---Appearance of parties on transfer of suit---Appeal---Limitation---Court in which suits were pending adjudication had become vacant---Suits were being adjourned and parties and their advocates were appearing before the said Court-- Lastly suits were fixed on 29-9-1997 when parties in suits were present---Cases were adjourned to 13-11-1997 as the Court was still lying vacant, in the meantime District Judge transferred suits from `P.J.G.' where same were pending to Court at `K' and matters were adjourned for 13-11-1997 which was already fixed---On said date nobody having appeared before transferee Court, Court ordered for issuance of Court motion notices to advocates of parties---Advocates of parties having refused to accept said Court motion notices, Court after perusing report of bailiffs held service good and fixed suits for evidence---After recording evidence of plaintiffs suits were fixed for evidence of defendants, but defendants having failed to appear, suits were decreed-- Appeal filed by defendants after more than one and half years of passing decree in favour of plaintiffs were dismissed being time-barred--Defendants had filed revision against dismissal order of Appellate Court alleging that they had no knowledge about suits as no Court motion notices were served upon them by transferee Court and they had also prayed for condonation of delay---Parties were present on 29-9-1997 before Court when suits were adjourned to 13-11-1997---Service of Court motion notices upon advocates of defendants, was service upon defendants and was effectual for all purposes as if same had been served upon party in person---Gross negligence on part of defendants could not be condoned without assigning cogent, plausible and sufficient cause for their not appearing in the Court---Defendants who had knowledge about transfer of suits, could not claim that they had no knowledge about transfer of suits---Appeals filed by defendants were rightly dismissed being barred by time---In absence of any illegality or irregularity in the impugned judgment and decree, same could not be interfered with in revision before High Court.
• A.M. Mobeen Khan for Respondent No. 1.
• The facts giving rise to the present applications are that on 2-9-1979 the respondents in both the appeals filed separate suits for pre-emption in the Court of Senior Civil Judge, Khairpur. The suits were transferred from one Court to another. Lastly the suits were pending in the Court of Civil Judge, Pir Jo Goth for recording the evidence of plaintiffs in both the suits. The said Court became vacant. The parties and their Advocates were appearing before the said Court. The suits were being adjourned. Lastly the suits were fixed on 29-9-1997 when the parties in both the suits were present. The cases were adjourned to 13-11-1997 as the Court was lying vacant. In the meantime the learned District Judge transferred both the suits from the Court of Civil Judge, Pir Jo Goth to the Court of Civil Judge Kotdiji. The R&Ps of both the suits were received by the Civil Judge, Kotdiji on 11-7-1997. The matters were adjourned to 13-11-1997 as the same were already fixed on that date but nobody appeared before the said Court. The Court ordered for the issuance of Court motion notices to the parties' Advocates of both the suits. The suits were being adjourned from time to time for want of service of Court motion notices. On 6-12-1997, the Court motion notices returned served upon the parties' Advocates of both the suits as they refused to accept the same The Court after perusing the report of bailiff held service good and the suits were fixed for evidence. The evidence of plaintiff/respondent in both the suits were recorded. On 23-12-1997 the suits were fixed for evidence of defendants/applicants of both the suits but they did not appear before the Court. The suits were adjourned to 24-12-1997. On that date the Court after hearing the plaintiff's Advocate of both the suits and perusing the record decreed both the suits. On 20-4-1998 the applicants of both the revisions preferred appeals before the District Court and applications under section 5 of Limitation Act were filed in both the appeals in which the applicants took the plea that the suits were decreed on 24-12-1997 without their knowledge. They came to know about the ex pate decree on 6-4-1998. They applied for copies which were supplied to them on 17-4-1998 and then on 20-4-1998 they filed the appeals. The Appellate Court after hearing the parties' advocates dismissed bout the appeals being time-barred under the impugned judgments.
• I have heard the parties' Advocates of both the revisions and perused the record of cases very carefully. The applicants' Advocate has stated that the applicants had no knowledge about the suits as no Court motion notices were served upon them by the Court of Civil Judge, Kotdiji and when they came to know about the ex parte decree, they applied for the copies of decree and then they filed the appeals. He has further stated that the delay may be condoned.
• On the other hand the respondents' Advocate has stated that the Court motion notices were served upon the applicants' Advocates whose powers were in tact but they refused to accept the notices, therefore, the trial Court held the service good, that the said service was in accordance with law; that it was between the applicants and their Advocates; that the Advocate is agent of the applicants therefore, his actions are equally binding upon the applicants. He has further stated that valuable rights have accrued in favour of respondents which cannot be curtailed on flimsy grounds taken by the applicants.
• I have given due consideration to the arguments and find that it is an admitted position that on 29-9-1997 the parties of the suits were present before the Court of Civil Judge, Pir Jo Goth when the suits were adjourned to 13-11-1997. In the meantime, the suits were transferred to the Court of Civil Judge, Kotdiji. The said Court fixed the suits on 13-11-1997 as already fixed by the Court of Civil Judge Pir Jo Goth but nobody appeared before the Court. It was ordered by the Civil Judge, Kotdiji that Court motion notices be served upon the parties' Advocates which were duly served upon the Advocates for the applicants and respondents but they refused to accept the notices hence the trial Court held the service good. Under Order III, rule 5, C.P.C. the service of process on pleader is service upon the party. The said rule reads as under:--
• Thus, the service effected upon the Advocates for the applicants was effectual for all purposes as if the same had been given to or served upon the party in person. Furthermore section 24-A(2), C C.P.C. deals with the transfer of suit from one Court to another otherwise than on the application of any party. The said subsection reads as under: --
• In the present case on 29-9-1997 the suits were pending before the Civil Judge, Pir Jo Goth when the parties were present. The suit was adjourned to 13-11-1997 in their presence and the said date was in their knowledge. It appears that the parties did not appear before the said Court on 13-11-1997. Had they been appeared before the said Court, they would have been informed about the transfer of the suits as required under section 24-A(2), C.P.C. Non-appearance of the parties and their Advocates before the Court of Civil Judge, Pir Jo Goth clearly show their gross negligence on their part which cannot be condoned without assigning cogent, plausible and sufficient cause. However, the transferee Court ordered for the issuance of the Court motion notices upon the parties' Advocates which were served as per bailiff's report, upon the Advocates for the applicants but nobody cared to appear before the transferee Court. As such the applicants had knowledge about the transfer of the suits; therefore, they cannot claim that they had no knowledge about the transfer of the suits. They got the said knowledge in pursuance of service of notices upon their Advocates in terms of Order III, rule 5, C.P.C. The notices were deemed to have been served upon the applicants for all effectual purposes.

Headnotes / Summary

Judgment & Decree