REENA SADHversusANJANA ENTERPRISES

                           [2008] 5 S.C.R. 1165


                             REENA SADH                                 A
                                   v.
                        ANJANA ENTERPRISES
                    (Civil Appeal No. 2472 of 2008)
                              APRIL 4, 2008
                                                                        B
+              [S.8. SINHA AND V.S. SIRPURKAR, JJ.]

            Delhi High Court Rules - Rule 6 Chapter 13 -
      Compliance with - Transfer of recovery suit from High Court
      to subordinate court on enhancement of pecuniary jurisdiction     c
      - Absence of notice of transfer of suit to defendant no 3 - Ex
      parte decree - Application ulo. 9 r 13 - Dismissed by courts
      below - Held: Not correct - In absence of notice courts below
      not justified in passing ex parte decree :... Strict compliance of
      Rule 6 Chapter 13 was required - Registrar of Delhi High
                                                                         D
      Court and court presiding-Additional District Judge were duty
      bound to see that decree was passed only after proper service
      - Defendant no. 3 being party before Delhi High Court, was
      bound to be given notice of transfer - It cannot be said that
      defendant no. 3 not being interested party was not to be
      informed - 9ounsel who appeared did not appear for all E
      defendants - Code of Civil Procedure, 1908 - 0. 9 r 13.
            The question which arose for consideration in the
      present appeal was whether in absence of notice to the
      defendant of transfer of recovery suit in terms of the Rule       F
      6 Chapter 13 of the Delhi High Court Rules, from Delhi
      High Court to the court of District Judge, on enhancement
      of the pecuniary jurisdiction, the courts below were
      justified in dismissing the application under 0. 9 r 13 CPC
      for setting aside the ex parte decree in recovery suit.
                                                                       G
           Allowing the appeal, the Court
'>·       HELD: 1. The language of the Rule 6 Chapter 13 of
      the Delhi High Court Rules provides that the Presiding
                                   1165                                H
    1166     SUPREME COURT REPORTS               [2008] 5 S.C.R.


A 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
8 Judge in this case). From the very language of the Rule 6,
  Chapter 13, the Rule has to be held as mandatory Rule            1
  and indeed in the absence of such Rule, the concerned
  parties would have no notice of the transfer of the case
  nor of the proceedings in such a transferred case.
c Therefore, the Rule has to be held requiring the strict
  compliance of the same. [Paras 12 and 13] [1175-B-C, H;
  1176-A]
        2.1 In the instant case, the matter was transferred by
  order of Joint Registrar dated 08.03.2003. This being an
D administrative order, passed by the Joint Registrar, it was
  incumbent on the part of the High Court to let all the parties
  know about the date on which they should appear before
  the District Judge. In this order the Registrar recorded the
  date on which the parties should appear before the
E District Judge, Delhi. However, it is obvious that it was
  only Shri Ajay Amitabh Suman who was appearing for the
  defendants. There is no reference whatsoever in the
  above order that Shri Ajay Amitabh Suman was appearing
  for 'all' the defendants. [Para 11] [1174-D-E, G-H; 1175-A-B]
F      2.2 Rule 6 was not complied with in case of the
  present appellant who was the original defendant no.3. It
  is obvious that the Joint Registrar proceeded under the
  impression that Shri Ajay Amitabh Suman was appearing
  for all the defendants. The Courts below observed that
G 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
H on 8.8.2003 and the Rule thus applied to her with full force.
            REENA SADH v. ANJANA ENTERPRISES               1167


     Therefore, it cannot be said that the word "parties" used A
     in the Rule did not include her who was original defendant
     No.3. The courts below have obviously committed an
     error in treating that the appellant not being an interested
     party was not required to be informed of the transfer of
     the case as also the date on which the parties were B
     expe~ted to appear before the court to which the case
     was transferred. It is to be seen that in the language of
     the Rule the word used is "parties" and not "interested
     parties". If the interpretation put forth by the courts below
     is accepted, the word "interested" would have to be read     c
     in the Rule which is not permissible. [Para 12] [1175-C-G]
          2.3 The counsel appearing for the defendants 1, 2
     and 4 was under no duty to inform that he was not
     representing the defendant no.3-appellant. Once it is
     accepted that there was no counsel representing the D
-~   defendant no.3-appellant, it was incumbent on the part of
     the Registrar to let the appellant know about the date in
     this case. [Para 14] [1176-8-C]
           2.4 From the order sheet of the court of Additional
      District Judge, Delhi, it is apparent that on 25.9.2003 E
      neither the plaintiff nor the defendants appeared before
      the court arid later on the same date, partner of the
      respondent-plaintiff appeared before the court and noted
      the date. Even on that date no other defendant had any
      knowledge about the further date on which the suit was F
     fixed before the Additional District Judge. It is obvious that
     thereafter the matter was fixed on 1.12.2003 on which date
     the defendant was not served and, therefore, the matter
     was adjourned to 7.1.2004 when again the matter was
     adjourned for fresh notice to the defendants and was fixed G
     for 9.4.2004 and it was only on 12.4.2004 that one proxy
     counsel for the Sh. K.K. Sharma appeared and then the
     matter was adjourned for filing the Reply. (There appears
     to be an obvious mistake in the order passed by the High
     Court inasmuch it is mentioned that Shri Ajay Amitabh H
   1168     SUPREME COURT REPORTS              [2008] 5 S.C.R.


A Suman appeared on 12.4.2004 and the matter was
  adjourned to 8.4.2004 which is not possible.) It seems that
  thereafter also at no point of time was the appellant ever
  served or got an opportunity to pray for time to take part
  in the suit. Till this time there were no ex-parte
s proceedings ordered against the present appellant either
  before the Delhi High Court or before the Additional           -+
  District Judge, Delhi. From the orders 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
C 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
0
  of Rule ·s 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
E other contentions raised by the decree-holder and the
  findings recorded by the courts below must fall down.
  [Para 15] [1176-C-H; 1177-A-C]
        2.5 The counsel who was representing the
F defendants 1, 2 and 4 was ot duty bound to inform about
  the non service of notice to the appellant. All the other
  factual findings regarding the mala tides on the part of
  the defendant no.3-appellant or the so-called designs by
  her to protract the suit go in the background once it is
G held that she did not have any notice of the transfer. It
  was the duty of the Registrar of the Delhi High Court and
  further it was the duty of the court presiding-Additional
  District Judge to see that the decree is passed only after      .,,
  the proper service. In the absence of a notice, there is no
  justification to pass the ex-parte decree and, therefore,
H
            REENA SADH v. ANJANA ENTERPRISES                     1169
                   [V.S. SIRPURKAR, J.]

     both the courts below erred in rejecting the application           A
     under Order IX Rule 13. The non-service of the notice was
     a sufficient reason to set aside the decree against the
     defendant no.3-appellant. Thus, the orders of the courts
     below are set aside and the application under Order IX
     Rule 13 is allowed. [Paras 16 and 17] [1177-D-G]                   B
          CIVILAPPELLATE JURISDICTION: Civil Appeal No. 2472
·+
     of 2008.
          From the final Judgment and Order dated 23.1.2007 of
     the High Court of Delhi at New Delhi in First Appeal against       c
     Order No. 20/2007.
         Yashank Adhyaru, Sarad Kumar Singhania for the
     Appellant.
          Rajiv Nanda and L.D. Adlakha for the Respondent.
                                                                        D
          The Judgment of the Court was delivered by
          V.S. SIRPURKAR, J. 1. Leave granted.
          2. The present appeal challenges the orders passed by
     the Delhi High Court dismissing the appeal filed by the present    E
     appellant wherein she had challenged the order passed by
     Additional District Judge, Tis Hazari Courts, Delhi dismissing
     her application under Order IX Rule 13 of the Code of Civil
     Procedure.
          3. The following facts would help understanding the           F
     controversy involved.
           4. The appellant herein was arrayed as a Third Defendant
     in a Civil Suit filed by Anjana Enterprises, the respondent herein.
     This suit was initially filed in the High Court of Delhi and was G
     pending there. Along with the appellant there were three other
     defendants including defendant No.4-firm M/s.Renuka Inc. The
     suit was for recovery 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 H
    1170      SUPREME COURT REPORTS                    [2008] 5 S.C.R.


A 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
B 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
c 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
D that on 22.9.2004, the Court proceeded ex-parte against the
  appellant herein and ultimately an ex-parte judgment and decree
  was passed on 27.10.2005. This decree was sought to be set
                                                                          +
  aside under Order IX Rule 13 and for that an application came
  to be filed before the Trial Court. However, the Trial Court rejected
  the said application requiring the appellant to file an appeal
E before the Delhi High Court. However, even that appeal was
  dismissed and that is how the appellant has come before us by
  way of the present appeal.

        5 .. Learned counsel appearing on behalf of the appellant
F urged that both the courts below have not realized that the
  appellant had no opportunity whatsoever to take part in the
  proceedings since she was never served a notice of the
  proceedings which were transferred from Delhi High Court to
  the Court of Additional District Judge, Delhi. Secondly the
G learned counsel urged that the true impact and effect of Rule 6
  Chapter 13 was also not realized by the courts below under
  which it was imperative that after the transfer, all the parties were
  bound to be informed regarding the transfer and the dates. It
  was further urged that both the courts below have not realized
  that the counsel who represented the original defendants 1, 2
H
       REENA SADH v. ANJANA ENTERPRISES                      1171
              [VS. SIRPURKAR, J.]

and 4 was not her counsel and, therefore, the notice served on A
the said counsel amounted to no notice being served or atleast
was not a sufficient notice. Lastly the courts below have not
realized that the appellant had no concern whatsoever with the.
aforementioned defendant-firm of which she was neither a
Director nor the partner and thus had no concern with the said B
loan of Rs.14,50,000/-.
       6. As against this, the learned counsel for the respondent-
plaintiff urged that there were circumstances on record to
suggest that the appellant was never serious about these
proceedings and inspite of number of opportunities having been C
granted to her she remained dormant in the matter of defending
the suit. It was also urged that the appellant did not show the
expediency that was expected from her even in the matter of
making an application under Order IX Rule 13. It was lastly urged
that the application was made only for the sake of protracting D
the litigation.
       7. On this backdrop it will be proper to see the treatment
given to the application by the Trial Court as also the Delhi High
Court. It is seen from the order of the Trial Court that it was an
admitted position that the counsel representing the Original E
 Defendants 1, 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. F
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 G
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 H
    1172      SUPREME COURT REPORTS                 [2008] 5 S.C.R.


A 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. The learned Additional District Judge
B noted that one Mr.Ajay Amitab Suman was present on the fateful
  day, i.e., on 8.8.2003 on behalf of the appellant. The learned
  Judge also noted that the said counsel did represent the interest
  of the appellant which was clear from the order sheets
  21.2.2002, 22.7.2002 and 13.2.2003. The learned Judge,
C therefore, went on to conclude that the defendant no.3 (appellant
  herein) was not interested in defending the matter though she
  was being represented by the very same counsel who was
  looking after the interest of defendants 1, 2 and 4 and that she
  had no cogent explanation for her non appearance. As regard
D the impact of Rule 6 Chapter 13, the learned Judge concluded
  that since she had no interest in the matter, it was not necessary
  to serve her with the notice because under the Rule the word
  "parties" only would mean the "interested parties". The court also
  noted that one K.K. Sharma who was appearing on behalf of
  defendants 1, 2 and 4 also put in his appearance for defendants
E 1, 2 and 4 and he never bothered to clarify that he did not
  represent the defendant no.3 (appellant herein). Ultimately, the
  Court held that the appellant failed to establish her credentials
  and that her application amounted to abuse of the process of
  the court.
F
        8. The High Court firstly noted about the facts regarding
  the transfer and also found that one Avinash Lakhan Pal, proxy
  counsel for Mr.K.K. Sharma, Advocate had appeared for
  Defendants 1, 2 and 4. The High Court noted various dates on
G which the court hearings were fixed after transfer. The High Court
  also noted that the interpretation given by the Trial Court to the
  word "parties" occurring in Rule 6 Chapter 13 was correct and
  that only the parties interested were bound to be served with
  the notice of transfer of the suit and since the appellant was not
  interested in defending th,e suit, it was not necessary to serve
H
           REENA SADH v. ANJANA ENTERPRISES                  1173
                  [VS. SIRPURKAR, J.]

her at all. The High Court perused the plaint and found that the A
appellant was instrumental in reaching the transaction stated in
the plaint and ultimately the High Court observed, relying on
Order 9 Rule 11 CPC that since the appellant had already the
notice of the proceedings before the High Court through her
husband on 6.10,2001, it was clear that she was adopting the B
policy of hide and seek and was taking the court for a ride. The
High Court also mentioned that the counsel 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 c ·
ultimately held that Rule 6 of Chapter 13 was duly complied with.
     9. On the backdrop of these findings itis to be seen as to
whether theire 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 D
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           E
             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,     F
             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 G
             notice to defendant no.3.
     iii)    Defendant no.3 was not proceeded ex-parte before
             the High Court at any point of time and no order
             under Order IX Rule 11 CPC was ever passed- by
             the Delhi High Court or even the Court of Additional    H
    1174       SUPREME COURT REPORTS                     [2008] 5 S.C.R.
                                                                            "-

A               District Judge, Delhi.
           10. The wording of Rule 6 Chapter 13 is as follows:                    \.

           "Records be sent immediately to the court to which case
           is transferred: when a case is transferred by administrative
B          order from one court to another, the presiding officer to
           the court from which it has been transferred shall be            ~

           responsible for informing the parties regarding the transfer,
           and of the date on which they should appear before the
           court to which the case has been transferred. The District
c          Judge passing the order of transfer shall see that the
           records are sent to the court concerned and parties
           informed of the date fixed with the least possible delay.
           When a case is transferred by judicial order the court
           passing the order should fix a date on which the parties
           should attend the court to which the case is transferred."
D
          11. In this case, the matter was transferred by the order of
                                                                            ~
    Joint Registrar Shri N.P. Kaushik by his order dated 8.8.2003
    which order reads thus:
           "Present: Mr.L.D. Adlakha for the Plaintiff
E
           Mr.Ajay Amitabh Suman for defendant
           S.No.1441/97
           This is a case where the value of the suit for the purpose
F          of pecuniary jurisdictions is less than Rs.20 lacs. In view
           of the orders passed by the Hon'ble Chief Justice the
           present matter is transferred to the court of Hon'ble District   '!'

           Judge Tis Hazari Courts, Delhi assignment to a court of
           competent jurisdiction. Parties and/or their counsel to
G          appear before the Hon'ble District Judge, Delhi on 25th
           September, 2003."
         This being an administrative order, passed by the Joint
                                                                            -(
  Registrar, it was incumbent on the part of the High Court to let
  all the parties know about the date on which they should appear
H before the District Judge. In this order the Registrar has recorded
                      REENA SADH v. ANJANA ENTERPRISES                     1175
                             [VS. SIRPURKAR, J ]
      ~

               the date of 25th September, 2003 as the date on which the parties   A
               should appear before the District Judge, Delhi. However, it is
               obvious that it was only Shri Ajay Amitabh Suman who was
               appearing for the defendants. There is no reference whatsoever
               in the above order that Shri Ajay Amitabh Suman was appearing
               for 'all' the defendants.                                           B
 "'   ~              12. The language of the Rule provides that the Presiding
               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       c
               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. D
               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-pa rte by the E
                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 F
               treating that the appellant not being an interested party was not
               required to be informed of the transfer of the case as also the
               date on which the parties were expected to appear before the
               court to which the case was transferred. It is to be seen that in
               the language of the Rule the word used is "parties" and not
                                                                                   G
               "interested parties". If we accept the interpretation put forth by
               the courts below, the word "interestec_l" would have to be read in
          ,_   the Rule which is not permissible.
                     13. From the very language of the Rule, the Rule has to be
               held as mandatory Rule and indeed in the absence of such Rule,      H
    1176       SUPREME COURT REPORTS                    [2008) 5 S.C.R.


A the concerned parties would have no notice of the transfer of
  the case nor of the proceedings in such a transferred case. The
  Rule, therefore, has to be held requiring the strict compliance of
  the same.
        14. This is apart from the fact that the counsel appearing
B for the defendants 1, 2 and 4 was under no duty to inform that
                                                                           ~   ;
  he was not representing the defendant no.3 (appellant herein).
  Once it is accepted that there was no counsel representing the
  defendant no.3 (appellant herein) it was incumbent on the part
  of the Registrar to let the appellant know about the date in this
c case, i.e., 24th September, 2003.
            15. Further when we see the order sheet of the court of
    Additional District Judge, Delhi, it is apparent that on 25.9.2003
     ne.ither the plaintiff nor the defendants appeared before the court
    and later on the same date one Ghanshyam Dass, partner of
D
    Anjana Enterprises, i.e., the plaintiff appeared before the court
    and noted the date. Even on that date no other defendant had
    any knowledge about the further date on which the suit was fixed
    before the Additional District Judge. It is obvious that thereafter
    the matter was fixed on 1.12 .2003 on which date the defendant
E   was not served and, therefore, the matter was adjourned to
    7.1.2004 when again the matter was adjourned for fresh notice
    to the defendants and was fixed for 9.4.2004 and it was only on
     12.4.2004 that one Avinash Lakhan Pal, a proxy counsel for
    Shri K.K. Sharma, Advocate appeared and then the matter was
F   adjourned for filing the Reply. (There appears to be an obvious
    mistake in the order passed by the High Court inasmuch it is
    mentioned that Shri Ajay Amitabh Suman appeared on
    12.4.2004 and the matter was adjourned to 8.4.2004 which is
    not possible.) It seems that thereafter also at no point of time
G   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
H   the orders before us it seems that ultimately the ex-parte
       REENA SADH v. ANJANA ENTERPRISES                        1177
              [VS. SIRPURKAR, J.]

evidence was ordered on 17.8.2004 and the matter was fixed             A
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                        B
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        C
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.
       16. We find no duty in the counsel who was representing
the defendants 1, 2 and 4 to inform about the non service of           D
notice to this appellant. All the other factual findings regarding
the mala fides on the part of the defendant no.3 (appellant herein)
or the so-called designs by her to protract the suit go in the
background once it is held that she did not have any notice of
the transfer. It was the duty of the Registrar of the Delhi High       E
Court and further it was th.e duty of the court presiding, i.e., the
Additional District Judge to see that the decree is passed only
after the proper service. In the absence of a notice, we do not
see any justification to pass the ex-parte decree and, therefore,
we are of the clear opinion that both the courts below have erred      F
in rejecting the application under Order IX Rule 13. In our opinion
the non service of the notice was a sufficient reason to set aside
the decree against the defendant no.3 (appellant herein).
     17. In view of the above we set aside both the orders of
the courts below and allow the application under Order IX Rule G
13. Counsel's fee fixed at Rs.10,000/-.
N.J.                                             Appeal allowed.


                                                                       H