P. P. MAMOO KOYA v. P. ANDU — 1982 DIGILAW 272 (KAR)

N. R. KUDOOR, J. ( 1 ) THE petitioner has presented this civil petition under S. 24 of the C. P. C. (the 'code' for short) to transfer O. S. No. 631 1s81 from the court of the Munsiff, mangalore, D. K. and O. S. No. 141/1981 from the court of the Civil judge, Kodagu at Madikeri, to the court of the Civil Judge, Mangalore, D. K. , tor being tried with O. S. No. 154,1982 on its file. ( 2 ) THE facts on which the petition is founded may be stated, in brief, as follows :the petitioner entered into an agreement with the respondent on 5. 2. 1980 for the purchase of certain quantity of timber as stated in the agreement. Having regard to the fact that there was some difference of opinion between the petitioner and the respondent, respecting the implementation of the terms of the agreement, the petitioner brought o. S. No. 631 of 1981 on the file of the munsiff Mangalore against the respondent for injunction and certain other reliefs on 15. 12. 1981. In the meanwhile, the respondent had filed O. S. No. 141 of 1981 in the court of the civil Judge, Kodagu at Madikeri on 2. 12. 1981 against the petitioner for recovery of certain amount said to be due to him from the petitioner under the same agreement dt. 5. 2. 1980. The petitioner also iiled another suit O. S. No. 154 of 1982 against the respondent in the court of the Civil Judge, mangalore, for the recovery of a sum of Rs. 31,688-75 from the respondent on the basis of the very same agreement. The if act that all the three suits arise out of the same agreement, the parties in all of them being the same and the issues that arise for consideration being the same, it is just and reasonable to try all the suits, together so as to avoid multiplicity of proceedings, inconvenience for the parties to produce documents and examining witnesses and the delay in the disposal of the suits. Most of the documents to be produced being the same in all the three suits, if they are produced in one suit, it is likely to cause delay in the progress of the other suits if the suits are tried separately in three different, courts. Most of the documents to be produced being the same in all the three suits, if they are produced in one suit, it is likely to cause delay in the progress of the other suits if the suits are tried separately in three different, courts. If all the suits are tried, together and the parties are permitted to adduce common evidence no hardship or loss will be caused to the respondent. On the other hand, if the suits are tried in different courts, it is likely to cause prejudice to the petitioner and the possibility of getting the cases disposed of at an early date will be remote. On these grounds, the petitioner has filed this petition for the reliefs stated supra. ( 3 ) THE respondent has filed written objections opposing the petition on various grounds a detailed reference vo the contents of the objection statement may not be necessary. However, the respondent in his turn, having requested the court to reject the prayer of the petitioner, made a request suo motu to transfer O. S. No. 631/1981 from the court of Munsiff,mangalore and O. S. No. 154/1982 from the court of the civil Judge, Mangalore to the Court of the Civil Judge, Kodagu at Madikeri to meet the ends of justice. ( 4 ) THERE is no dispute between the parties as could be gathered from their respective pleadings that all the three suits arise out of the agreement entered into between the parties on 5. 2. 1980 and that they should be tried and heard together by the same court. However, the dispute between the petitioner and the respondent is as to which of the suits should be transferred and to which court for being tried and disposed of at one common trial. ( 5 ) SRI Tukaram S. Pai, learned Advocate appearing for the petitioner, maintained that balance of convenience, having regard to the facts and circumstances pertaining to all the three cases, would be in favour of the prayer made by the petitioner in his petition to tranfer the suits from the court of the Civil judge Kodagu at Madikeri and the munsiff, Mangalore, to the court of the civil Judge, Mangalore. In support of this contention, he submitted that the question of jurisdiction to try the suits filed by the petitioner in the courts at Mangalore does not arise, since such a question was not raised in any those suits. Although the question of jurisdiction to try the suit instituted by the respondent in the court of the Civil Judge, Kodagu at madikeri, was raised by the petitioner that question will not arise, if that suit is transferred to the court of the Civil judge, Mangalore, since the timber to be supplied to the petitioner under the agreement by the respondent were to be delivered at Mangalore as per the terms of the said agreement. Besides, the petitioner, who is the defendant in the suit brought by the respondent in the Court of the Civil Judge, kodagu at Madikeri also resides at mangalore. He further contended that if all the three suits are tried in the court of the Civil Judge, Mangalore. the dealy in the trial of the suits as well as the possibility of rendering conflicting judgments could conveniently be avoided so as to meet the ends of justice. ( 6 ) REFUTING vehemently everyone of the points urged by Sri Tukaram S. Pai for the petitioner, Sri S. G. Bhagavan, learned counsel for the respondent, presnted the following points for consideration. ( 7 ) FIRSTLY he contended that the petitioner cannot maintain his petition in his individual name since he brought the suit O. S. No. 154 1982 in the name of the firm. The petitioner brought the suit O. S. No. 154 1982 in the name of the firm represented by its partner, the petitioner herein. Both, the present petition as well as the suit O. S. No. 154/1982 have their source from the agreement dated 5. 2. 80 which was entered into between the petitioner p. P. Mamoo Koya arid the respondent and while furnishing the address of the petitioner, the name of the saw mill which was a firm, of which the petitioner is a partner, was also referred to in the agreement. Similarly the petitioner has mentioned the name of the saw mill while furnishing his address in the petition. . Similarly the petitioner has mentioned the name of the saw mill while furnishing his address in the petition. . Apart from these facts, the question whether the suit o. S. No. 154/1982 was properly instituted or not is a matter to be decided in the said suit if such a plea is raised by the respondent. However, having regard to the circumstances of the case i find no merit in the contention urged by Sri Bhagavan that the petitioner cannot maintain the petition for the reasons advanced by him. ( 8 ) SECONDLY it was contended that the petitioner having raised the question of jurisdiction of the court of the civil Judge, Kodagu at Madikeri to try the suit O. S. No. 141/1981 brought by the respondent, cannot seek for the transfer of that suit from the said court. In support of this contention he placed reliance on a decision of this court in Alice Sequeira v. L. Miranda (1 ). ( 9 ) AS against this, it was contended by Sri Tukaram S. Pai, that in view of the amendment brought to S. 24 of the Code by adding sub-sec. (5), the law enunciated by this court in alice Sequeira's case (1) which was decided earlier to the amendment brought to S. 24 of the Code, shall be no more good law. ( 10 ) IN Alice Sequeira's case (1) it was held that an order of transfer of a suit under S. 24 of the Code from one court to another cannot be made unless the suit which is sought to be transferred is filed in a court that is competent or has jurisdiction to try the suit and where the jurisdiction to try the suit is questioned by the defendant then it is not open to the defendant to make an application for transfer of that suit under Section 24. ( 11 ) THERE is no dispute that the petitiorer who is the defendant in O. S. No 141/1981 which is a suit brought by the respondent in the court of the civil Judge Kodagu at Madikeri, did raise the question of jurisdiction of that court to try the said suit. ( 11 ) THERE is no dispute that the petitiorer who is the defendant in O. S. No 141/1981 which is a suit brought by the respondent in the court of the civil Judge Kodagu at Madikeri, did raise the question of jurisdiction of that court to try the said suit. The very first issue raised in the said suit is:"whether this court has no jurisdiction to try the suit?" however, the question for consideration is whether the law enunciated in Alice Sequeira's case (1) is still good law in view of the addition of sub-sec. (5) to S. 24 of the Code. Sub-sec. (5) of S. 24 of the Code reads. ' A suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it. "this amendment was brought into force in the month of February 1976. Dealing with the new sub-section (5) of S. 24 of the Code, the learned Commentator in the Code of Civil Procedure. 1908 by Sanjiva Row 1977 4th edn. Vol. 1 at page 138 observed as follows:"there was a conflict of decisions with regard to the question as to whether section applies in relation to a transfer of a suit from a Court which has no jurisdiction to try it. The High Court of Andhra Pradesh has held that 'section 24 is very wide and there are no restrictions or impediments in the way of the High court exercising the power of transfer merely because there is a dispute regarding jurisdiction'. The High courts of Nagpur and Allahabad, had taken the similar view, while the High Courts of Sindh and Mysore had taken a contrary view. The Law commission in its 54th Report, expressed the view that it is desirable to clarify the position and better to adopt the wider view. Accordingly the present new sub-sec. (5) has been inserted to clarify that a case may be transferred from a court which has no jurisdiction to try it. "thus, it is clear that sub-sec. (5) of s. 24 of the Code was placed on the statute to resolve the conflict of decisions rendered by the various High courts respecting the transier of a suit from a court having no jurisdiction under S. 24 of the Code. Since the decision in Alice Sequeira v. L. Miranda (1) was rendered earlier to sub-sec. (5) of s. 24 of the Code was placed on the statute to resolve the conflict of decisions rendered by the various High courts respecting the transier of a suit from a court having no jurisdiction under S. 24 of the Code. Since the decision in Alice Sequeira v. L. Miranda (1) was rendered earlier to sub-sec. (5) of S. 24 was placed on the statute, I should agree with the contention urged by Sri Tukaram S. Pai that the law enunciated in the aforesaid decision is no more good law. In that view, I do not find much force in this contention. ( 12 ) THIRDLY it was contended that it would be convenient for the petitioner to go to Madikeri to attend he Civil judge's Court than for the respondent to travel all the way to Mangalore to attend the courts, since the responded, resides in a village called, Cheyyandane about 25 K. Ms. away from Madikeri. Madikeri and Mangalore are connected by a national highway and in that view convenience or inconvenience would be same to a person either going irom madikeri to Mangalore or vice-versa taking into consideration the conveyances that are available. However, it is not the case of Sri Bhagavan that there would be any inconvenience Cor the respondent to reach Madikeri from his village which is hardly 25 K. Ms. from Madikeri. If all the three suits are to be tried in the respective courts in which they were instituted, then the respondent shall necessarily have to go to Mangalore in connection with the two suits filed by the petitioner. The respondent has not come forward with any application to get those two suits transferred to the court of the civil Judge, Kodagu at Madikeri on the ground of balance of convenience, although the respondent in his statement of objections requested the court suo motu to transfer those two suits to the court of the Civil Judge, Kodagu at Madikeri. However, the fact remains that the respondent has not come for ward on his own to get those two suits instituted by the petitioner in the courts at Mangalore transferred to the court of the Civil Judge, Kodagu at Madikeri on the ground of balance oi convenience. However, the fact remains that the respondent has not come for ward on his own to get those two suits instituted by the petitioner in the courts at Mangalore transferred to the court of the Civil Judge, Kodagu at Madikeri on the ground of balance oi convenience. It was only petitioner that has filed this petition for transfer of the suit filed by the respondent in the the Court of the Civil Judge, Kodagu at Madikeri, to be transferred to he court of the Civil Judge, Mangalore, the respondent made a request in his staement of objections to transfer the two suits filed by the petitioner in the courts at Mangalore to the court of the Civil Judge Kodagu at Madikeri suo motu by way of a counter-proposal in his defence to resist the petition filed by the petitioner. Taking into consideration all the relevant circumstances of the case, I am unable to persuade myself to accede to the contention urged by Sri Bhagu wan that the balance of convenience lies in favour of the respondent, to transfer the two suits filed by the petitioner from the courts at Mangalore, to the court of the Civil Judge, Kodagu at Madikeri and not as prayed for by the petitioner. ( 13 ) LASTLY it was argued that there is no merit in the contention raised by the petitioner that if all the three suits are not tried at one trial by the same court there will be delay in the disposal of the suits. I find little force in this submission. If all the three suits are tried in three different courts in which they were instituted, it seems to me that the duplication of the same witnesses to be examined and the documents to be filed in the different suits cannot be avoided. On the other hand if all the suits are tried in on court at one trial it would be convenient to both parties to examine one set of witnesses and to produce one set of documents in the course of the trial. It would not only facilitate the parties in the production of witnesses, but also save considerable time in the trial of the suits. Besides, it would also help the parties to avoid prolongation of the litigation by the possibility of rendering conflicting decisions if the suits are tried in different courts. It would not only facilitate the parties in the production of witnesses, but also save considerable time in the trial of the suits. Besides, it would also help the parties to avoid prolongation of the litigation by the possibility of rendering conflicting decisions if the suits are tried in different courts. Thus, I find every force in the submission made by the learned counsel for petitioner that if all the. suits are not tried jointly by the same court there will be delay in the disposal of the suits. ( 14 ) AS I stated earlier, there is no dispute between the parties that all three suits should be tried at one trial by the same court. The only dispute between the parties is as to which of the suits should be transferred to which court. In the course of my discussion on the various points canvassed by both parties. I have considered in detail the various consequences that would follow if all the suits are tried in different courts and also the various aspects relating to the balance of convenience and the other material facts in deciding the question as to the proper course to be adopted in this matter. Having considered all the circumstances of the case, I am inclined to hold that the petition filed by the petitioner, deserves to be allowed to meet the enas of justice. ( 15 ) IN the result, for the reasons stated above, the petition is allowed. O. S. No. 631, 1981 in the court of the munsiff, Man galore and O. S. No. 141/1981 in the court of the Civil Judge, kodagu at Madikeri are withdrawn from the respective courts and transferred to the court of the Civil Judge, mangalore, for being tried along with o. S. No. 154/1982 of that court. The civil Judge at Mangalore, is directed to dispose of the suits expeditiously as soon as the transferred suits are received be in his court. There shall be no order as to costs. --- *** --- .