V.K. Mohamed Rowther vs Chennapaiya and Another

(1) This is an appeal against an order passed on an interlocutory application in O.S. 24 of 1945 on the file of the Subordinate Judge, Salem. The

learned Judge has dismissed the application of the appellant (14th defendant) under O. IX, R. 13, C.P.C., for setting aside the ex parte decree

passed against him in the suit after remand of the same by the High Court. The suit was by a reversioner for setting aside various alienations. The

appellant is one of the alienees who purchased a certain item for valuable consideration. Originally, the suit was decreed ex parte on 31-3-1952. A

number of alienees including the appellant filed an appeal to this court, and the suit was remanded to the lower court for fresh disposal by an order

dated 19-11-1959. The lower court received the material records on 27-7-1960 and the suit was posted for appearance of parties on 30-8-1960

on which date the respondents (Plaintiffs) alone appeared by counsel and the defendants including the appellant were absent. The suit was

adjourned to 15-9-1960. As nobody appeared, the defendants were set ex parte. As the respondents had filed a petition to bring the legal

representatives on record, the suit was adjourned to various dates. Finally, the decree was passed on 3-11-1960. The appellant filed the

application for setting aside the ex parte decree within the period of limitation.

(2) The only point that arose for consideration was whether the appellant was prevented by sufficient cause from appearing on the date when he

was set ex parte. The appellant gave his reasons that after remand he was not aware of the date when the suit would be posted for fresh trial,

though he was making diligent enquiries in regard thereto. Not satisfied with this explanation, the learned judge dismissed his application. Against

this order of dismissal, the 14th defendant has now preferred the appeal.

(3) Learned counsel for the appellant contended that notice was not given to the appellant, as to when the suit was posted for fresh trial. Therefore,

the only point that arises for consideration is whether after remand of the suit it is absolutely necessary to give notice to the parties, as to when the

suit would be taken up for rehearing. In this case, admittedly no notice was sent to the appellant herein. To my knowledge, there is no specific

provision in the CPC or in the Civil Rules of Praetice, that notice is necessary to the parties after remand. Therefore I sought the assistance of Sri

V. C. Viraraghavan, Advocate and Secretary, Rules Committee, to acquaint me whether there is any convention or practice prevailing in the lower

courts to issue notice to the parties after remand.

After making enquiries in the City Civil Court, he has informed me that the practice in that court is to issue notice to both sides intimating the date

of hearing after the remand order and that before issuing notice orders of the court are obtained. When I asked learned counsel whether any such

practice prevailed in the mofussil courts, he could not say definitely whether any such practice prevailed there. I am of opinion that, in the interests

of justice, after remand of the suit for fresh trial, notice should be given to the parties intimating the date of hearing of the suit. In the instant case,

the appellant is residing in some village far away from Sub Court, Salem. There is nothing on record to show whether he retained the same counsel

who appeared for him originally and if so whether he was aware of the remand order and the date of hearing. But there is evidence to show that

the appellant went to the court two or three times to ascertain about the suit but could not know anything about the hearing date.

(4) In Haradhun Chukerbutty v. Protap Narain Chowdhry, 14 Suth W.R. 401, it was held that when the case was remanded for retrial, some date

should have been fixed for the rehearing which would have given the parties opportunity to appear and take measures to carry on the suit. In In re

Kalee Mohun Doss, 17 Suth W.R. 70(1), a case was remanded in appeal in the presence of both parties for a local investigation. A reasonable

time was given, after the records had come, to the parties to appear and conduct the case. It was observed that the petitioners could plead no

valid excuse in merely saying that they were not aware of the records having come down, but that, on the contrary, it was their business to look

after the case. There the order was passed in the presence of both the parties and therefore one would expect the parties to be diligent to follow

the progress of the suit.

But that principle cannot be applied here, for, in this case, the remand was made by the High Court, and the order of remand might or might not

have been communicated by counsel either to the counsel in the lower court or to the party. And one would not expect a party to know when the

records had come. Further in this case, the appellant had gone twice or thrice to the court at Salem from his village to know about the hearing of

the case. This is the natural conduct of a person living in far off village. In Jagadamba Prasad v. Ram Dularay 136 Ind Cas 251 , where a case

remanded to the trial court, it was held that it was the duty of the plaintiff to take necessary steps to find out whether the records had been received

by the trial court. In that case, it must be said that both the courts were situated in the same place. It would certainly be the duty of the plaintiff to

find out when the records had been received.

In Roop Kishore v. Jugraj, ILR (1953) 3 Raj 988 it was held that it was not incumbent on the trial court to give notice of the receipt of the record

to the parties and it was the duty of the plaintiffs to find out when the record reached the trial court. In Banshi Dewan and Others Vs.

Majaharuddin Talukdar and Others, it is observed that it may be very natural in an ordinary case of retrial on remand to rely upon the court and its

clerks being sufficiently diligent to give notice of the return of the record, but the duty must be upon the party to make enquiry and if he makes no

enquiry at all he has only himself to blame. In Baldar v. Imam AIR 1925 Nag 31, it is observed that where a case is remanded for retrial by the

first court, no notice is given to the parties of the date fixed for rehearing according to the practice of the courts in Central Provinces.

(5) After going through these decisions, I am of opinion that there is no uniform practice prevailing in the courts as to whether notice is necessary

after remand to the lower court. I feel that the practice obtaining in the City Civil Court of taking orders of court and issuing notice to the parties

intimating the date of hearing after remand should obtain in the other courts also.

(6) In the instant case, the appellant is a bona fide purchaser for valuable consideration. He has been in possession of the property for 17 years.

He was the person who came to the High Court and he is one of those benefited by the order of remand. It is admitted that notice was not issued

to him. We do not know whether the counsel who originally appeared for him in the suit informed him of the fact. In the interest of justice, I feel

that notice should be given to the appellant.

(7) In the result, the appeal is allowed and the ex parte decree passed against him is set aside and the suit is directed to be restored to file and

proceeded against immediately as far as this appellant is concerned. There will be no order as to costs.

(8) Appeal allowed.