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Judgment
P. Venkatarama Reddi, J.—This Civil Miscellaneous Appeal is preferred against the order of the Subordinate Judge, Avanigadda rejecting the petitioner''s application filed under Order 9 Rule 13 CPC to set aside the ex parte final decree passed in O.S.No.151 of 1989.
In the affidavit filed in support of the application, the only ground stated by the petitioner is that he could not attend the Court because his Counsel did not inform him about the transfer of the case. The learned Subordinate Judge was not inclined to accept the petitioner''s version that he had no knowledge of transfer or the date of posting. The learned Judge commented that the petitioner had not even disclosed his defence "till now even after lapse of two years".
The learned Counsel for the appellant has relied upon the decision of a learned Single Judge of this Court in Koruprolu Atchaya and others Vs. Bideshi Raghuram Singh, . Construing the proviso to Rule 63 of Civil Rules of Practice (for short ''the Civil Rules''), the learned Judge held that when the suit is transferred u/s 24 of the CPC, notice to the Advocate about the transfer and the date of posting the case in the other Court is not sufficient. Notice should also be sent by the Court to the parties concerned. In the absence of such notice, it was held that the petitioner who filed application under Order 9 Rule 13 CPC cannot be said to have knowledge of the next date of appearance before the transferee Court.
Rule 63 of the Civil Rules reads as follows:
"An application for transfer of a suit, appeal or other proceeding from one Court to another shall be made by Original Petition entitled in the matter of the pending suit, appeal or other proceeding as in Form No. 17. Notice of the application in Form No. 18 shall be issued and served on the other parties to the suit, appeal or other proceeding:
Provided that if u/s 24 of the Code, the District Court transfers a suit, appeal or other proceeding of its own motion and without giving notice in the first instance, it shall record in writing its reasons for dispensing with such notice and shall direct the Court from which it has been transferred to intimate the parties or their Advocates about the transfer and the date on which they should appear before the Court to which it has been transferred."
In the aforementioned decision, the learned Judge was inclined to read the conjunction ''or'' occurring in the phrase "intimate to the parties fir their Advocates" as ''and'' ". This interpretation was placed by the learned Judge to ''redeem the hardship'' that may be caused to the parties, in case the Counsel failed to intimate the date of posting of the case in the transferee Court.
After giving deep thought to the question, we find no compelling reason to read the expression ''or'' as ''and'' so as to make it obligatory on the Court to which the case is transferred (on administrative grounds) to intimate not only the Counsel but also the parties. It cannot be disputed that the Advocate engaged by the party is authorised to represent him throughout the entire gamut of the proceedings resulting in final termination of the matter in which he is engaged. In fact, the form of Vakalat prescribed by Rule 19 shows that an Advocate is authorised to accept on behalf of the party the notice of appearance in any Court of appeal, reference or revision, in relation to suits or other matters before the disposal of the same by the trial Court. The service of notice of transfer on the Advocate who continues to represent the party despite the transfer will be in perfect conformity with the ''tenor'' and the authority given to the Advocate under the Vakalat. The possible failure of the Advocate to inform the factum of transfer to his client cannot be a ground to insist on the additional requirement of causing service of notice on the parties as well, eventhough they are represented by the Advocate. It is common experience that the service of notice to the parties often results in delays and gives scope for procrastination of the proceedings. This situation is obviated by treating the notice to the Advocate as notice to the party as well. Even if the case is not transferred, there may be failure or omission on the part of the Advocate to inform his client or the client might not have received the intimation. Therefore, this failure or omission on the part of Advocate and/ or the non-receipt of intimation is not a feature peculiar to transferred suit. The situation arising on account of such contingencies is no different-whether it be a transferred suit or any other pending suit; because if the party is unable to appear for any genuine reason, such as the lack of knowledge of the next date of posting that may be a good ground to set aside the ex parte order or decree in a fit case-whether it be in a transferred or non-transferred suit. But it cannot be laid down as a general proposition that until and unless the notice is caused to be issued by the transferee Court to the party, the suit etc., cannot be proceeded with in the absence of party. We doubt very much whether any such broad proposition was intended to be laid down by our learned Brother M.B. Naik J. in Achaiah''s case (1 supra). We feel that the fact situation with which the learned Judge was confronted, perhaps justified the finding that the petitioners had no knowledge of the date on which the suit was first posted in the transferee Court. In this context, it is apparent from the facts stated in Paragraph 2 of the said Judgment that the Advocate representing the petitioners therein returned the case file to the petitioners'' Counsel informing them about the transfer of the suit from the Sub-Court, Peddapuram to Pithapuram. The Advocate further informed the clients that the date of hearing would be intimated to them by the Pithapuram Sub-Court. Thus it is a case of either the Counsel or the Court not informing the party about the next date of posting. The party in fact returned the file as per the version of the petitioners which was believed. Thus, while the ultimate conclusion reached in the Judgment need not be faulted, with great respect, we are unable to endorse the reasoning of the learned Judge for interpreting the word ''or'' as ''and'' in the proviso to Rule 63. The parties are supposed to be vigilant and they are expected to be in contact with the Advocate. If, in a given case, he is able to prove that despite the vigilance on his part, he could not get the information about the date of posting in time, that may be a good reason to set aside the ex parte order or to condone the delay, but we do not find any warrant for placing an interpretation on the proviso to Rule 63 so as to require the service of notice both on the Counsel as well as on the party. Of course, the version of the party ought to be tested from the stand-point of probabilities and the presumption that could be drawn having regard to the normal course of events. The Court need not rely upon the mere ipse dixit of the party alleging that he had no knowledge of the factum of transfer and the date of posting for the simple reason that the same was not intimated by the transferee Court.
Keeping the above legal position in view and having regard to the facts of the present case, we find no infirmity in the order under appeal. We, therefore, dismiss the CMA at the admission stage.