JUDGMENT
1. This revision is directed against the judgment and order dated 7-12-1992 passed by the VIth Additional District Judge, Bareilly rejecting the defendants application for restoration of the suit to its original number and for setting aside the ex parte decree dated 9-4-1992.
2. Briefly stated, the relevant facts are that on 8-10-1991 the plaintiff-opposite party filed J.S.C.C. Suit No. 30 of 1991 for recovery of arrears of rent and damages and for ejectment of the defendants from the shop in dispute. The suit was filed in the court of the District Judge and summons were directed to be issued to the defendants fixing 11 -11-1991. Admittedly the summons of the suit were personally served on the defendants No. 1 and 2. It appears that on 30-10-1991 the suit was transferred to the court of VIIth Additional District Judge, Bareilly. On 11-11-1991, which was the date fixed in the suit, the defendants did not appear before the transferee court nor did they file any written statement. The court fixed 20-12-1991 for final hearing. It appears on that on 20-12-1991 and on two dates thereafter the case could not be taken up due to lawyers' strike or on account of the fact that the court did not have time and finally 9-4-1992 was fixed for final hearing. On the said date the court found that despite personal service on the defendants they were neither present nor any written statement had been filed. Consequently the court decreed the suit against the defendants under Order 8, Rule 10, C.P.C. On 21-4-1992 the defendants filed an application purporting to be under Order 9, Rule 13, C.P.C. read with Rule 89A of the General Rules (Civil). In this application it was stated that the defendants could not appear on 11-11-1992, which was the date fixed in the suit, as the defendant No. 1 was ill and the defendant No. 2 was out of station. It was also stated that the defendants were not aware of the transfer of the suit from the court of the District Judge to the court of the IIIrd Additional District Judge as no notice was sent to them either by the court of the District Judge or by the transferee court as required under Rule 80A of the General Rules (Civil). It was, therefore, prayed that the ex parte decree dated 9-4-1992 be set aside and the suit be restored to its original number and the defendants be given time to file their written statement. The plaintiff-opposite party filed objection to the defendants' application which was ultimately heard by the VIth Additional District Judge, Bareilly. Relying upon some decisions of our Court in which it has been held that compliance of the provisions of Section 17 of the Provincial Small Cause Courts Act was mandatory, the court below found that that the defendants had failed to comply with the said provisions of Section 17 of the Provincial Small Cause Courts Act and despite being served with the summons they had not filed any written statement and, therefore, rejected the defendants' application for setting aside the ex parte decree dated 9-4-1992 and for restoration of the suit to its original number. Aggrieved, the defendant-applicants have filed the present revision before this Court.
3. I have heard Shri Tejpal, learned counsel appearing for the defendant-applicants and Shri. B.B. Paul learned counsel appearing for the plaintiff-opposite party at the admission stage and with the consent of the learned counsel for the parties the revision is being finally decided.
4. The main contention of the learned counsel for the defendant-applicants is that the suit was filed in the Court of the District Judge and summons were issued from the said court fixing 11-11-1991. The suit was subsequently transferred to the court of IIIrd Additional District Judge on 30-10-1991 without any information or notice to the defendant-applicants either from the court of the District Judge or from the transferee court. Learned counsel has contended that the provisions of Rule 89-A of the General Rules (Civil) have not been complied. Placing reliance upon a decision of learned single Judge of our Court in the case of Balbir Singh Chauhan v. Vijai Kumar Agarwal, reported in 1987 (1) All RC 337, it was contended that in such a situation the application for restoration could not be rejected for non-compliance of Section 17(1) proviso of the Small Cause Courts Act. On the other hand, learned counsel for the plaintiff-opposite party has argued that the provisions of Section 17(1) of the Small Cause Courts Act have been held to be mandatory by a number of decisions of our Court and, therefore, the Court below was perfectly justified in holding that the application could not be allowed for non-compliance of the provisions of Section 17(1) proviso of the Small Cause Courts Act. It was further submitted that in the impugned order the court below has stated that the transferee court had also issued summons to the defendant-applicants and consequently the requirement of the provisions of Rule 89 A of the General Rules (Civil) was complied with and the submission made on behalf of the defendant-applicants was not sustainable. Rule 89A of the General Rules (Civil) on which strong reliance has been placed, reads as follows:--
'Rule 89 A (1) When a case i.e. a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed, is transferred from that court to another, the former court shall record the order of transfer in the order sheet and get it signed by the counsel of the party or parties, if any party is unrepresented, information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted.
(2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring court.
(3) Where the cases are transferred in a large number the courts from which they are transferred shall, besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be pasted on the notice board of the local bar association for information of the members of the bar and another copy to be pasted on the notice board of the court for information of the general public. It shall also Send to the other court along with the records of the transferred cases, a copy of the list (or relevant extract of it); the other court shall paste it on its own notice board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being pasted on the notice board of the bar association.
(4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer".
Applying the provisions of the Rule 89A of the General Rules (Civil) quoted above, in the facts of the present case, it would be noticed from the order sheet (a copy of which has been filed along with the affidavit filed in support of the stay application) that the suit was registered on 8-10-1991 in the court of the District Judge, Bareilly and 11-11-1991 was fixed for the appearance of the defendants for which summons were issued. On 30-10-1991 the case was transferred to the court of IIIrd Additional District Judge where it was received on 2-11-1991. On the same day the transferee court ordered the case to be put up on the date fixed i.e. 11-11-1991. On 11-11-1991 the Court found that the defendants were absent and no written statement had been filed. Therefore, Court fixed 20-12-1991 for final hearing. On the said date as the court was busy, the case was adjourned for 3-2-1992. On 3-2-1992 lawyers were on strike and 9-4-1992 was fixed for final hearing. From the order sheet of the suit it does not appear that any notice as required under Rule 80A(1) of the General Rules (Civil) was issued to the defendants. It also does not appear from order sheet that as the defendants were unrepresented any information was sent of this transfer to their registered addresses. The transferring court has not recorded that the defendants had been informed about the transfer. The order sheet also does not show that the transferee court has recorded any satisfaction that the defendants had been informed of the transfer, as required under sub-rule (4) of Rule 89A. Thus from the facts of the present case it is evident that there has been no compliance of Rule 89A of the General Rules (Civil). Learned counsel for the plaintiff-opposite party has, however, contended that when cases are transferred a general notice is pasted on the notice board of the court for information and also on the notice board of the local bar association and this would be deemed to be sufficient information as required under Rule 89A of the General Rules (Civil). He has also contended that in the penultimate paragraph of the impugned order the court has mentioned that the transferee court had sent summons to the defendants and hence also compliance of Rule 89A had been made. I am, however, unable to agree with the submission made by the learned counsel for the plaintiff opposite party. From the perusal of sub-rule (3) of Rule 89A of the General Rules (Civil) it would be evident that the transferor court is required to follow the procedure laid down in sub-rule (1) of Rule 89A of the Rules and, over and above, it shall also cause a copy of the list pasted on the notice board but this is done only when a large number of cases are transferred from the transferor court to some other court. Here, apart from the fact that the requirements of sub-rule (1) of Rule 89 A have not been complied with there is no finding or evidence to show that the notice was pasted on the notice board for information regarding the transfer of the case. From the order sheet of the suit it also does not appear any summons were issued by the transferee court to the defendants and the stray observation in the penultimate paragraph of the order appears to have been made by the court under, some misapprehension. I, therefore, agree with the learned counsel for the defendant applicants that there has been no compliance of the provisions of Rule 89A of the General Rules (Civil). So far as the reasoning given by the court below that compliance of Section 17(1) proviso of the Small Cause Courts Act was mandatory and the ex parte decree could not be set aside as the said provisions had not been complied with by the defendant applicants, learned counsel for the applicants has placed strong reliance upon the case of Balbir Singh Chauhan (supra). In the said case a suit for ejectment and arrears of rent was filed against the defendants which was transferred to another court but no information of the transfer was given to the parties. The suit was decreed ex parte and thereafter the defendants filed an application under Order 9, Rule 13, C.P.C. The court found the reason for the absence of the defendants as sufficient but dismissed the application on the ground of non-compliance of the provisions of Section 17(1) proviso of the Small Cause Courts Act. This Court held that, in the facts of the case, the court itself was at fault for not informing the counsel or the party regarding the transfer of the suit as required under Rule 89A of the General Rules (Civil) and under such situation neither any application under Order 9, Rule 13, C.P.C. was required nor was the compliance of Section 17(1) of the Small Cause Courts Act required. The court was required to set aside the ex parte decree in exercise of its inherent powers under Section 151, C.P.C. and failure to do so vitiates the decision and amounts to an erroneous exercise of jurisdiction. The decision of this case does support the contention of the learned counsel for the defendant-applicants. Learned counsel for the plaintiff-opposite party has failed to show any other decision in which a contrary view has been taken. I, therefore, find sufficient force in the submissions made by the learned counsel for the defendant-applicants.
5. There is yet another aspect of the matter. A copy of the order dated 9-4-1992 has been filed along with the affidavit filed in support of the stay application. The said order shows that the IIIrd Additional District Judge has decreed the suit under Order 8, Rule 10, C.P.C. ex parte on the ground that the defendants had not filed any written statement nor had they appealed before the said court. Order 8, Rule 10, C.P.C. reads thus:--
"Rule 10, Where any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by the court, as the case may be, the court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit, and on the pronouncement of such judgment, a decree shall be drawn up."
The condition precedent for proceeding under Rule 10, therefore, is that the court must require the defendant to file the written statement and if one being so required the defendant fails to comply with the order within the time allowed, the court has been given the power to pronounce the judgment against him. In the facts of the present case, I do not find from the order sheet of the suit any express order of the court granting time to the defendants for filing written statement. The court below, therefore, has exercised its jurisdiction with material irregularity by applying the provisions of Order 8, Rule 10, C.P.C. and decreeing the plaintiffs suit on 9-4-1992. I am of the opinion that in the facts of the present case Order 8, Rules 10, C.P.C. will not apply. In the case of Ram Rakhan v. Mahant Govind Dass, reported in AIR 1945 All 3-52, a Division Bench of our Court had held that a defendant is not compelled to file a written statement unless he is definitely directed to do so by the court. In the said case summons were issued directing the defendant to file written statement on the date fixed. The defendant did not file written statement on the date fixed. The Court held that the court below only permitted the defendant to file written statement on the date fixed. There was no special injunction by the court that he must file the written statement and, therefore, the defendant was not bound to appear on the date fixed and Order 8, Rule 10, C.P.C. did not apply. To the same effect is the decision of the Delhi High Court in the case of Union of India v. Bhagwan Dass, AIR 1976 Delhi 96. It is true that both these decisions are prior to the amendment made in Rule 10 by Act No. 104 of 1976 but in my opinion the ratio of the said decisions still holds good and would apply to the facts of the present case also.
6. Apart from the above, a perusal of the order dated 9-4-1992 by the suit was decreed ex parte under Order 8, Rule 10, C.P.C., would show that the court had decreed the suit merely on the ground that the defendants did not file the written statement. The court below has not called upon the plaintiff to give evidence neither has the plaintiff given evidence in support of his case. Even if the defendant does not file written statement the plaintiff still has to prove his case. It appears that the court below presumably thought that the failure of the defendants to file written statement amounts to admission of facts as alleged in the plaint and, therefore, decreed the suit. I am of the view that by adopting this procedure the court has manifestly erred. I am of the view that even if the defendant does not appear at all the court is not empowered to hold that the allegations made in the plaint would be deemed to be correct and so a decree can follow. In the absence of a specific provision to that effect the plaint and the allegations contained therein do not constitute any evidence on the basis of which the court can act. It was, therefore, necessary to record ex parte evidence of the plaintiff. It was held by this Court in the case of Smt. Phuljhari Devi v. Mithai Lal, AIR 1971 All 494 that a mere omission to file the written statement does not amount to an admission of the facts stated in the plaint. A similar view has been taken by the Delhi High Court in the case reported in AIR 1976 Delhi 96 (supra). In the said case it has been held that the failure of the defendant to file the written-statement does not raise the presumption that the defendant admits all the allegations contained in the plaint and so the allegations of the plaintiff must be deemed to be correct. The court is not entitled to act on the allegations of the plaint and it mut act on the proved evidence before it. In the case of Smt. Krishna Devi v. Raj Kumar reported in AIR 1986 Raj 72 the said Court had also taken a similar view when it held that the judgment the court is enabled to pronounce under Rule 10 of Order 8, C.P.C. should conform to how the expression is defined in Section 2(g), C.P.C. It should state the ground on which it is based. A mere statement that the suit of the plaintiff is decreed under Order 8, Rule 10, C.P.C. could not be sustained.
7. As a result of the aforesaid discussions, the revision is allowed the defendants' application for setting aside the ex parte decree dated 9-4-1992 stands allowed and the order dated 7-12-1992 passed by the court below is set aside. The court below shall now fix a date for filing of the written statement by the defendants for which notice will be issued to the defendants as well as their counsel. The court below will proceed with the trial of the suit as expeditiously as possible. If the court below finds that the defendants are trying to delay the proceedings by taking adjournments or by adopting other dilatory tactics it will be open to the said court to pass appropriate orders in accordance with law.
8. In the facts and circumstances of the case, the parties shall bear their own costs of this revision.
9. Petition allowed.