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1968 DIGILAW 3 (ORI)

CHANDRASEKHAR TRIPATHY v. SASHIBHUSAN TRIPATHY

1968-01-09

BARMAN

body1968
JUDGMENT : Barman, C.J. - This is an application under Sections 22 and 23(1), CPC for transfer of Title Suit No. 42 of 1964 in the Court of the Subordinate Judge, Berhampur, to the Court of the Subordinate Judge, Jeypore, in the circumstances hereinafter stated. 2. On July 29, 1964 one Sashibhusan Tripathy filed a suit being Suit No. 42 of 1964 at Berhampur against one Chandrasekhar Tripathy and his wife Roma Devi, both residents of Koraput District (Petitioners herein), for specific performance of a contract agreeing to sell dated 6-2-1962 the suit land for a consideration of Rs. 7000/- out of which Rs. 2000/- was already paid in advance. The suit land is 8 acres 10 cents out of which 8 acres are in Ganjam District and 10 cents in Koraput District. The executants of the agreement are stated to be the said Defendants Chandrasekhar Tripathy and his wife Roma Davi and a minor son represented by the father Defendant No. 1 Chandra sekhar Tripathy. The defence in the suit, as taken by the Petitioners herein who are Defendants, is that the suit land is joint family property and accordingly Defendants 1 and 2 Chandrasekhar Tripathy and Roma Devi were not competent to, sell the suit land to the Plaintiff purchaser. 3. It was about 3 months thereafter that the sons of Defendant, 1 and 2 (in Berhampur Suit) Chandrasekhar Tripathy and Roma Devi filed a. suit being T.S. 60/64, at Jeypore against the Plaintiff in the Berhampur suit Sashibhusan Tripathy and Chandrasekhar Tripathy and his wife Roma Devi for declaration that the agreement to Bell was not binding on the intending vendors in that it was a joint family property and Chandrasekhar Tripathy and his wife Roma Devi by themselves were not competent to sell the joint family property. 4. On September 1, 1965 the Defendants in the Derhampur suit Chandrasekhar Tripathy and his wife Roma Devi filed the present application for transfer of the Berhampur suit for trial to the Court of the Subordinate Judge, Jeypore. 5. On the facts of this case it is apparent that the Petitioners on the basis of their defence in the Berhampur suit filed the Jeypore suit for a declaration that the agreement to sell was not binding on the vendors. 5. On the facts of this case it is apparent that the Petitioners on the basis of their defence in the Berhampur suit filed the Jeypore suit for a declaration that the agreement to sell was not binding on the vendors. In substance the defence in the Berhampur suit is the same as the alleged cause of action in the Jeypore suit. Thus, where there are two suits which raise the common questions of fact and law having a substantial bearing on the decision of each of the cases, it is desirable that they should be tried at the same place and by the same Judge. This course is necessary in order to avoid multiplicity of the trial on the same issues and conflict of decisions. When such a situation arises the Court has to consider the balance of convenience having regard to all the circumstances in the two suits. 6. In the course of hearing of this petition the learned Counsel for the Petitioners stated that he proposes not to press the petition for transfer. The question is whether in the circumstances of the case, this Court, having regard to the balance of convenience, suo motu can have the two suits tried together by the same Judge in the same Court. 7. Section 24, CPC providing general power of transfer and withdrawal, so far as material, is this: 24(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court of the District Court may at any stage (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (ii) transfer the same for trial or disposal to any Court subordinate to it and competent, to try or dispose of the same. 8. In my opinion, this Court, in exercise of the general power u/s 24, can transfer one of the suits to the other Court for disposal of the two suits together. As against this view, the learned Counsel for the Petitioners relied on a decision of the Allahabad High Court in Dr. Rajnath Vs. 8. In my opinion, this Court, in exercise of the general power u/s 24, can transfer one of the suits to the other Court for disposal of the two suits together. As against this view, the learned Counsel for the Petitioners relied on a decision of the Allahabad High Court in Dr. Rajnath Vs. L. Vidya Ram and Others, in support of his proposition that Section 23 is not an independent section; it is supplemental to Section 22; Section 24 is a general provision empowering the High Court or the District Court to transfer a case on the motion of any other party or on its own motion; the general power conferred by Section 24 is not to be applied where the case falls u/s 22. In my opinion this case is distinguishable on the facts in the present case and has no application here. In this context the learned Counsel for the opposite parties relied on a decision of this Court in Purna Chandra Mahanty and Others Vs. Samanta Radhaprasana Das where on the facts, as in the instant case, two suits-one filed at Balasore and the other at Cuttack-were both directed to be heard by the District Judge at Cuttack. This decision supports the view that, apart from the fact that where there are substantial common questions of law and fact, it is desirable and necessary that they should be tried at the same place and by the same Judge, the Plaintiff has the choice of his forum so long as the suit; is not subject to the defect of want of local jurisdiction and a suit is not to be transferred from the Court the Plaintiff chooses for the convenience of the Defendants. 9. There is one important consideration which weighed with this Court in taking the view taken in the present ease, namely, that the Defendants in the Berhampur suit after putting in the written statement that the suit property was a joint family property and that they were not competent to sell the property, it was not until 3 months after that they filed the suit in the Jeypore Court. It was open to the Defendants to file the suit at Jeypore earlier for declaration that the agreement is not binding on them. In these circumstances, in the ends of justice, it is desirable that the Jeypore suit should be transferred to Berhampur. It was open to the Defendants to file the suit at Jeypore earlier for declaration that the agreement is not binding on them. In these circumstances, in the ends of justice, it is desirable that the Jeypore suit should be transferred to Berhampur. I accordingly direct the transfer of Title Suit No 60 of 1964 in the Court of the Subordinate Judge Jeypore to the Court of the Subordinate Judge, Berhampur for trial by him along With Title Suit No. 42 of 1964 now pending before him, one after the other in the order as the learned Subordinate Judge, Berhampur may think fit and proper. The Petitioners' application for transfer of the Berhampur Suit No. 42 of 1964 is dismissed and this M.J.C. is disposed of in terms of the order passed above. There will be no order as to costs of this M.J.C. Final Result : Dismissed