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TMI Blog2008 (4) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... overy of Rs. 14,50,000/- together with interest at the rate of 24% per annum both pendente lite and future. During the pendency of the suit the pecuniary jurisdiction of the District Courts was enhanced and, therefore, the suit came to be transferred to the Court of Additional District Judge, Delhi by order dated 8.8.2003. The order reached that court on 25.9.2003. It seems that the court of Additional District Judge thereafter sent notices to the parties and the matter was fixed for 22.10.2003. This order was passed on 25.9.2003 itself and the plaintiff-respondent had noted the further date of 22.10.2003. On 22.10.2003 it was found that the defendants had not been served and therefore, the court passed the order that the defendants and their counsel should be served through the court notice for 1.12.2003. The addresses for these notices were allegedly furnished by the plaintiff-respondent on that date. However, it seems that on 1.12.2003, the Trial Court issued notice only to the counsel of the defendants. The matter was fixed on 7.1.2004 for the appearance of the partiers. It seems that on 22.9.2004, the Court proceeded ex-parte against the appellant herein and ultimately an ex-p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2 and 4 did not have a Vakalatnama on behalf of the appellant. The Trial Court, however, went on to note that the counsel for Defendants 1, 2 and 4 put in his appearance on more than one occasions consciously and deliberately on behalf of the appellant also and sought for time to file written statement. Learned Judge also went on to note that the other defendants were the family members of the present appellant. It was also noted that inspite of the summons, the appellant had not appeared and, therefore, she could not turn around and say that on transfer she was bound to be given the notice of the proceedings. The Court further recorded a finding that the intentions of the appellant were malafide from the day one, which was apparent from the fact that the present appellant had not even furnished the correct address even in the present application under Order IX Rule 13 CPC. The learned Judge also held that it was only this appellant who was looking after the entire business on behalf of defendants 1, 2 and 4 in India as the other individuals were the residents of USA and, therefore, it was not mandatory to issue any court's notice either to the parties or to their counsel. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. L.D. Adlakha and Mr. Ajay Amittabh Suman who appeared on 8.8.2003 before the Joint Registrar should have clarified that they are not representing the appellant (defendant No. 3). The High Court ultimately held that Rule 6 of Chapter 13 was duly complied with. 8. On the backdrop of these findings it is to be seen as to whether there was compliance of Rule 6 Chapter 13 and if there was no compliance, the decree was liable to be set aside under Order IX Rule 13 CPC. Before we approach this question, few admitted facts would be necessary to be noted. They are: i) The appellant was not being represented by the counsel who appeared in the High Court on behalf of defendants 1, 2 and 4 (Ajay Amitabh Suman and/or K.K. Sharma). Shri L.D. Adlakha who allegedly appeared before the Joint Registrar Shri N.P. Kaushik on 8.8.2003 was not engaged by the appellant being plaintiff's counsel. Thus there was no counsel representing the appellant either before the Delhi High Court or before the Additional District Judge, Delhi. ii) Admittedly, there was no notice of transfer of proceedings or dates, to the appellant and notice to defendants 1, 2 and 4 was deemed to be sufficient not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siding Officer of the Court from where the matter was transferred (in this case the Delhi High Court) was responsible for informing the parties regarding the transfer as also the date on which the parties were supposed to be present before the court to which the case was transferred (District Judge in this case). Admittedly this did not happen in case of the present appellant who was the original defendant No. 3. It is obvious that the Joint Registrar Shri N.P. Kaushik proceeded under the impression that Shri Ajay Amitabh Suman was appearing for all the defendants. Therefore, there was no compliance with this Rule. The Courts below have observed that on this date the appellant was not appearing before the court at all though she was served way back in 2001. However, it is nobody's case and indeed the records do not show that she was proceeded ex-parte by the High Court. Therefore, she was certainly in the array of parties on 8.8.2003 and the Rule thus applied to her with full force. It cannot, therefore, be said that the word parties used in the Rule did not include her who was original defendant No. 3. In our opinion the courts below have obviously committed an error in trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was the appellant ever served or got an opportunity to pray for time to take part in the suit. It must be remembered at this juncture that till this time there were no ex-parte proceedings ordered against the present appellant either before the Delhi High Court or before the Additional District Judge, Delhi. From the orders before us it seems that ultimately the ex-parte evidence was ordered on 17.8.2004 and the matter was fixed on 29.10.2004 and thereafter on various dates for ex- parte evidence and ultimately the ex-parte decree was passed on 27.10.2005. It is further obvious that on these dates the other defendants did not remain present but more particularly, the present appellant was never served. Under these circumstances it is difficult to hold that there was a proper compliance of Rule 6 on the transfer of the matter from Delhi High Court to the court of Additional District Judge, Delhi. Once it is held that the appellant had no notice whatsoever and further she was bound to be given the notice of transfer, she being the party before the Delhi High Court , all the other contentions raised by the decree-holder and the findings recorded by the courts below must fall down. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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