1. SHAFIUR RAHMAN, J.--Leave to appeal was granted to the plaintiffs to examine whether the Lahore High Court had in its judgment dated the 15th of July, 1974 correctly .Interpreted section 24-A(2) of the Civil Procedure Code read with Para. 6, Chapter XIII, Volume 1 of the High Court Rules and Orders.
2. The plaintiffs-appellants instituted a civil suit on the 25th of April, 1963 against six defendants. The first two defendants-respondents who were served contested the proceedings upto a stage. The defendants-respondents 3 to 5 did not appear in spite of service and ex parte proceedings were ordered against them on 22-6-1963. The defendant-respondent No.6 was proceeded ex parte on 4-11-1963 when in spite of beating of drums he failed to appear in the proceedings. It appears that the suit was transferred more than once from one Court to another. One such transfer took place on 5-9-1963 and the other on 1-2-1964. It is admitted position that notice of such transfers of the case from one Court to the other was not given to respondents Nos. 3 to 6, the ex parte defendants in the proceedings. The contesting defendants-respondents Nos. 1 and 2 also defaulted in making appearance and producing evidence on issues framed in the case. The onus of the issues was on the defendants-respondents. The result was that on 9-12-1964 an ex parte decree was passed against them.
3. A joint application by all the defendants-respondents was filed under Order IX, Rule 13, C.P.C. And one of the main grounds taken up was that the defendants-respondents 3 to 5 were not served with a notice with regard to the transfer of the case from one Court to another. The respondents Nos. 1 and 2 also gave reasons explaining their absence on the date fixed for their evidence and considered it to be sufficient cause for the purposes of explaining their default. It was contested.
4. The following two issues were framed by the trial Court:- "(1) Whether the petition is maintainable in view of the preliminary objection in the written statement?
(2) Whether there are sufficient grounds to set aside the ex parte decree dated 9-12-1964. If so, on what terms?"
5. The factual objection leading to the framing of Issue No.1 was that the application for setting aside the ex parte decree was filed only by the first two respondents and the names of the other respondents were subsequently added with a view to make out a ground of non-service of notice on them when the case was transferred which ground was not available to the first two respondents.
6. The trial Court decided both the issues against the defendants-respondents. On the first issue, the finding was recorded in the following words:- "The names of petitioners Nos. 3 to 6 seem to have been added with a view to take advantage of the fact that when the case was transferred to the Court of Syed Munir Hussain Civil Judge and then to the Court of Ch. Muhammad Aslam, Civil Judge, no notices were served upon them and it was this fact which perhaps was desired to be taken advantage of by the petitioners in the present petition."
7. On the merits of the objection with regard to the non-service of the notice on the ex parte defendants, the trial Court held as follows:- "When the present suit was transferred to the Court of Syed Munir Hussain and then from his Court to the Court of Ch. Muhammad Aslam, Section 24-A as provided by the Amending Act of 1962 stood in the field and it was for petitioners Nos. 3 to 6 to come to the original Court on the date fixed in that Court to find out where the suit had been transferred to. Petitioners Nos. 3 to 5 clearly did not attend the Court nor did they keep in touch with the suit and so no sufficient reason is made out on their behalf. Particularly the contention that fresh notices were required to be served upon them by the transferee Court, must be rejected. The authority quoted by the learned counsel for the petitioners do not hold the field in view of the amendment of the essential provision, that is, insertion of section 24-A C.P.C.''
8. On the second issue, the trial Court held that the defendant---s --respondents "have failed to make out any sufficient ground for setting aside the decree against them". Their application for setting aside the ex parte decree was, therefore, dismissed with costs on 12-11-1968.
9. An appeal was taken to the District Judge. The District Judge, after discussion of the entire evidence led on issue No.1 affirmed the finding in the following words:- "In the context of the above statement of defendants Nos. 1, 3, 4 and 5 it becomes evident that the application put in on 16-12-1964 under Order IX, Rule 13, C.P.C. Was not on behalf of defendants Nos.3 to 6 namely Muhammad Arif, Kalab A.I, Amir A.I and Kabir Khan because the Act of Syed Laqa Haider Zaidi, Advocate in signing the application on 16-12-1964 does not stand ratified by his aforesaid clients."
10. As regards the requirement of the service of notice on ex parte defendants, the amendment in the law by addition of section 24-A was taken note of and interpreted in the words reproduced hereunder:- "This provision makes it obligatory upon the parties to appear before the Court on the day already fixed for appearance and the transfer Court shall then communicate the order of transfer and direct them to appear before the transferee Court on the day to be fixed. This shows that it is the primary obligation of the parties to pursue the case and the Court has been obliged to apprise them of the factum of transfer of the case and the date on which the parties present before it are to appear in the transferee Court."
11. The finding on the second issue was also affirmed by the District Judge.
12. The learned Judge in the High Court while exercising revisional jurisdiction interpreted section 24- A(2) read with Para. 6 of the Chapter XIII of the Lahore High Court Rules and Orders differently. The relevant observations made were as hereunder:- "I do not find any conflict between the provision as contained in section 24(A)(2), C.P.C. And Para. 6 of Chapter XIII of Volume 1 of High Court Rules and Orders. Both the provisions require that the parties should be duly informed about the transfer of the case. It means that they cannot be condemned unheard by the transferee Court. Similar view was taken in Azmat Begum v. Chief Settlement and Rehabilitation Commissioner, Pakistan PLD 1962 Lah 1041. It was held while relying upon Krishan Lal Malhotra v. Madan Lai and others PLD 1950 Lah. 82 that when a case is transferred by an administrative order from one Court to another while ex parte proceedings are pending against the defendant, the latter is entitled to notice after transfer in as much as he is still a party to the litigation within the meaning of Para 6 of Chapter XIII, Volume 1 of High Court Rules and Orders and when such a notice is not given the proceedings taken against the defendants since transfer will be liable to be set aside."
13. This was made the ground for upsetting the concurrent finding of the two Courts and for setting aside the ex parte decree as would appear from the following observations:- "The above discussion would show that it was imperative for the transferee Court to issue notice to the absentee defendants after the case was received by it on transfer and, as such, proceedings from 27-2-1964, including the ex-parte decree, held in their absence, they being the necessary party to the suit, cannot bemaintained and the same are hereby set aside. The result would be that the proceedings from that stage would be started afreshby the learned trial Court."
14. None appeared on behalf of the appellants to argue the appeal. One of the appellants was personally present.
15. Mian Saeedur Rehman Farrukh, Advocate, was heard with regard to the case set out by the respondents before us.
16. Prior to the introduction of section 24-A, C.P.C. The statutory provision on transfer or withdrawal of suits, appeals and other proceedings was contained in S. 24, C.P.C. In the following words:- "24. General power of transfer and withdrawal:
(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage.
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which thereafter tries such suit may, subject to any special directions in the case of an order of transfer either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this section, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes."
17. Para. 6 of Chapter XIII of Vol.1 of Lahore High Court Rules and Orders provided as follows:- ---6. Records to be sent immediately to the Court to which case is transferred.- When a case is transferred by administrative order from one Court to another the Presiding Officer of 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 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."
18. By Civil Procedure Code Amendment Ordinance (Ordinance No. XLIV of 1962) section 24-A was added and it is in the words that follow: - "24-A.-- Appearance of parties on transfer of suit, etc.-- (1) Where any suit is transferred under section 22, or any suit, appeal or other proceeding is transferred or withdrawn under subsection (1) of section 24 on the application of a party, the Court ordering the transfer or withdrawal shall fix a date for the appearance of the parties before itself, if the suit, appeal or other proceeding is to be tried or disposed of by itself, or before the Court to which the case is so transferred.
(2) Where any suit, appeal or other proceeding is transferred from one Court to another, otherwise than on the application of a party, the parties thereto shall appear before the Court from which the suit, appeal or other proceedings is to be transferred, on the day already fixed for their appearance before that Court, and such Court shall then communicate the order of transfer to such parties and direct them to appear before the Court to which the suit, appeal or other proceeding is to be transferred, either on the same day, or on such earliest day as may be reasonable having regard to the distance at which the other Court is located."
19. It is correct that before section 24-A was introduced in the Civil Procedure Code, it was the established law that the ex parte defendant had to be served with notice of the transfer of a suit from one Court to another where the transfer had taken place suo motu as an administrative measure. This point was forcefully brought out in the following words in the case of Krishen Lal Malhotra v. Madan Lal PLD 1950 Lah. 82.
20. "A defendant by his failure to appear at one of the hearings in the case, does not become an outlaw. He is still a party to the litigation; the evidence is led against him and the decree is ultimately passed against him. He can appeal from the decree or take other appropriate steps to ensure that everything was done in his presence. Logic and common sense too are in favour of this view. The Code of Civil Procedure encourages free and fair contest and a litigant must always know the Court to which he should go for the purpose. He was aware of the Court which sent him summons or before which he had appeared, and where a change has occurred, he should be apprised of this change; for it is his undoubted right to return to his case at any time before it was over. It is another matter, whether all that had taken place prior to his reappearance, was or was not wiped out."
21. This decision was followed in Azmat Begum v. Chief Settlement and Rehabilitation Commissioner, Pakistan PLD 1962 W . P . Lah. 1041.
22. The introduction of section 24-A in the Civil Procedure Code has a background and a purpose behind it. The background is to be found in the report of the Law Reforms Commission 1958-59 page 65 in the following words:- "In the event of transfer of cases from one Court to another also, occasionally the parties have to be summoned afresh by the transferee Court for a fresh date. This materially obstructs the progress of the cases .... Transfer of cases may take place in two ways. A transfer may be ordered by a higher Court on a petition. In that event, the transferring Court should itself fix a date for the appearance of the parties only, before the transferee Court, and this should invariably be a very short date. The parties would then appear before the transferee Court and take the actual date for which it would be convenient for that Court to take up the case. Where the transfer of a case is ordered for administrative reasons, the parties may not be present when the order is passed. In such a case, again, the parties should be placed under a legal obligation to appear in the Court in which the case was pending, on the date already fixed there. That Court would have been informed of the administrative order, transferring the case to another Court. The original Court should, therefore, keep a note of the particulars of the case and of the transferee Court, so that when the parties appear, they should be intimated of the order of transfer. This Court should direct the parties to appear before the transferee Court, either the same day, if the Court is located at that very place, or after a short interval, if it is situated elsewhere. These considerations would also be germane to work in criminal Court's and may well apply to them."
23. The language of section 24-A, subsection (2) in fact reflects this purpose and seeks to achieve it by making it obligatory on the parties to get themselves informed of the future date of hearing and the Court where the case has been transferred. The only duty placed on the Court is to inform them so when they approach it for that purpose. There was no indication on the record that any defaulting defendant had approached any of the Courts for that purpose.
24. The reasoning in the High Court's judgment seems to be that because even an ex parte defendant has a right to appear at any stage and join the proceedings prospectively, he must be informed of the transfer. Logically carried to its limits, it would imply that such a defendant should be informed of every date of adjournment so that he may appear and join the proceeding at his convenience.
25. That is not the intention and the purpose of the law.
26. We also find on the record that all the defendants had a common cause. It also appears that they had allowed the respondents Nos. 1 and 2 to prosecute their cause and they had not independently any intention of appearing or contesting the claim at any stage. The record of the proceedings, the dispute arising over the documents and the power of attorney and the authorization, the findings of fact, all lead to such a conclusion. In the face of these factual findings, the defendants- respondents were not entitled to any equitable consideration law being not entirely on their side.
27. For the reasons given, we accept this appeal, set aside the judgment of the Lahore High Court and restore that of the appellate Court. The result is that the application of the respondents under Order IX, Rule 13 shall stand dismissed. No order as to costs.