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1971 DIGILAW 147 (KAR)

ALICE SEQUEIRA v. L. MIRANDA

1971-05-24

DATAR

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( 1 ) THE short question that arises in this petition is whether the application filed by the petitioner for transfer of the proceedings from the Court of the District Judge, Coorg, Mercara to the Court of the District Judge, s. K. Mangalore is maintainable. ( 2 ) THE few facts which are necessary for decision of the said question are: Mary D'zouance Gutinha and L. Miranda are the petitioners in c. M. C. No. 21 of 1964 filed in the Court of the District Judge of Coorg, mercara. This was an application under Ss. 192, 194 and 195 of Part VII and S. 267 of Part IX of the Indian Succession Act. The petitioners are respondents 1 and 2 in the said application. In the said proceedings objection was raised that the application is not maintainable in that Court. Accordingly, the learned District Judge has framed the issues on 17-2-1965 and the first issue is "has the Court jurisdiction". The contention of the petitioners appears to be that the proceedings filed before the court of the district Judge at Coorg, Mercara was not maintainable, and therefore, they have raised the question with regard to the jurisdiction of the Court to entertain the proceedings. In the meanwhile, the present Civil Petition has been filed under S. 24 CPC. asking this Court to transfer this petition to the Court of the District Judge, S. K. Mangalore. ( 3 ) THE learned counsel appearing for the petitioners contended that even though they have challenged the jurisdiction of the court to entertain the proceedings, the application filed under S. 24 is maintainable and reliance was placed upon two judgments; one is the judgment of the High Court of Patna in Shyam Nandandahay v. Dhanpati Kuer, AIR 1960 Pat. 244 , and the other is the judgment of the High Court of Kerala in Mohamed Haji v. Saithu Mohamed, AIR 1962 Ker. 28 . In my view, having regard to the judgment of the Supreme Court in the case in raja Soap Factory v. S. P. Shantharaj, AIR 1965 SC 1649, the application filed by the present petitioners for transfer under S. 24 is not maintainable. In paragraph 7 of the judgment referred to above, this is what has been laid down by the Supreme Court :-" (7) S. 24 CPC. on which counsel for the plaintiffs relied lends no assistance to his argument. In paragraph 7 of the judgment referred to above, this is what has been laid down by the Supreme Court :-" (7) S. 24 CPC. on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a high Court by S. 24 CPC. there is enumerated the power to withdraw any suit, appeal or other proceeding in any Court subordinate to it, and to try or dispose of the same: [s. 24 (1) (b) (i) ]. But jurisdiction to try a suit, appeal or proceeding by a High Court under the power reserved by S. 24 (1) (b) (i) arises only if the suit, appeal or proceeding is properly instituted in a Court subordinate to the High Court, and the suit, appeal or proceeding is in exercise of the power of the high Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate court of competent jurisdiction, and transfer thereof to the High Court power to try and dispose of a proceeding after transfer from a Court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court. " ( 4 ) IT is therefore clear that the order of transfer of a suit from one court to another cannot be made, unless the suit has been filed in the first instance in the Court that is competent or has jurisdiction to try. In the present case, it may be seen that the jurisdiction to entertain and try the proceedings has been questioned. If the jurisdiction to try the proceedings has been questioned by the defendants then in my view, it is not open for them to make an application for transfer of proceedings under S. 24. In the case in Gangumal Shewaram v. Nanikram Khubchand, AIR 1932 Sind. 215, it has been laid"a superior Court cannot make an order of transfer of a case under the appropriate section of the CPC. unless the Court from which the transfer is sought to be made has jurisdiction to try it. A defendant cannot therefore raise an issue as to the jurisdiction of a Court in which the suit is pending and at the same time apply for transfer of the case under S. 24. unless the Court from which the transfer is sought to be made has jurisdiction to try it. A defendant cannot therefore raise an issue as to the jurisdiction of a Court in which the suit is pending and at the same time apply for transfer of the case under S. 24. " ( 5 ) IN N. Krishnaji Rao v. Gokuldas Harbhagavandas, AIR 1955 Mys. 115, it has been laid down that "it is not open to a defendant to contend that a particular Court has no jurisdiction to entertain the suit and at the same time to ask for a transfer of the case to some other Court. " The former High Court of Mysore also followed the judgment of the Sind referred to above as also of the High Court of Madras in the case reported in AIR 1928 Mad. 400. I am of the view that as in the present case, the petitioners have challenged the competence of the Court to entertain the proceedings, it is not open to them to make an application for transfer under S. 24 of the CPC. In that view, the present civil petition fails and is dismissed with costs. --- *** --- .