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1985 DIGILAW 97 (GUJ)

COMBINED ENTERPRISES v. VIMLABEN NAGINBHAI PATEL

1985-05-03

I.C.BHATT

body1985
I. C. BHATT, J. ( 1 ) THOSE three Misc. Civil Applications have been filed by the petitioners for transfer of the cases from the Court of the Civil Judge (. J. D.) Anand to the Court of the Civil Judge (S. D.) Narol. In ali these applications the petitioners are the same while the respondents are different. The respondents herein have filed there different suits being Regular Civil Suits Nos. 98/81 99 and 100/81 against the present petitioners in respect of some suit agreement for sale dated 12-4-1980 and hence all these three applications are being disposed of by this common judgment. ( 2 ) TRANSFER of a suit is not to be made in a light hearted fashion. The principle governing the general power of transfer and withdrawal under section 24 of the Code of Civil Procedure is that the plaintiff is the dominus litis and as such entitled to institute his suit in any forum which the law allows him. The Court should not lightly change that forum and compel him to go to another Court with consequent increase in inconvenience and expense of prosecuting his suit. Balance of convenience in favour of proceedings in another Court albeit is a material consideration but may not always be a sure criterion justifying transfer. Convenience of other parties and the expense likely to be incurred by them are also to be considered. the belated nature of the application for transfer and the fact that several proceedings have been gone through in a suit are factors which have to weigh with the Court for declining an application for transfer. ( 3 ) IN the present case three suits have been filed in the Court of the Civil Judge (J. D.) Anand. for declaring the suit agreement for sale dated 19 as null and void against the present-petitioners. The petitioners have filed these three applications for transferring the suits to the Court of the Civil Judge (S. D.) Narol. According to the petitioners the agreement in question took place in Ahmedabad city and not at Vidyanagar. It is the further say of the petitioners that they have filed Civil Suit Nos. 264/83 260 and 263/83 in the Court of the Civil Judge (S. D.) Narol for specific performance of the suit agreement which is in dispute in the suits in the Anand Court. It is the further say of the petitioners that they have filed Civil Suit Nos. 264/83 260 and 263/83 in the Court of the Civil Judge (S. D.) Narol for specific performance of the suit agreement which is in dispute in the suits in the Anand Court. According to the petitioners the suit property is situated within the boundaries of Thaltej taluka Daskroi District Ahmedabad i. e. the local limits and Jurisdiction of the Narol Court and therefore according to them the suits cannot be filed in any other Court except where the suit property is situated as per the provisions of section 16 of the Code of Civil Procedure. The petitioners have further submitted that in the interest of justice and considering the convenience of the parties it is necessary and desirable that the suits filed in Anand Court are transferred to the Court of the Civil Judge (S. D.) Narol and Should be heard. alongwith the suits filed by the petitioners in the Court at Narol. ( 4 ) LEARNED Counsel for the petitioners has placed reliance on a decision in Shri Pamban Kumaragurubara Swami Temple v. K. Subramaniya Mudaliar AIR 1977 Madras 97. He has also placed reliance on a decision of the Supreme Court in Indian Overseas Bank Madras v. Chemical Construction Co. and Ors. A. I. R. 1979 S. C. 1514. The Madras High Court in the above judgment has observed that sec. 24 of the C. P. C. is wide enough to confer powers upon the High Court and the District Court for the purpose of transferring a suit. The convenience of the parties concerned is one of the criteria for the purpose of transferring the suit. The Supreme Court in the above judgment has observed in para 17 as under:"17 As compared with sec. 24 the power of transfer of a Civil proceedings to another Court conferred under the new sec. 25 on the Supreme Court is far wider. And so is the amplitude of the expression expedient in the interest of justice which furnishes a general guideline line for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another Court is a question which depends on the circumstance of the particular case". And so is the amplitude of the expression expedient in the interest of justice which furnishes a general guideline line for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another Court is a question which depends on the circumstance of the particular case". In para 18 it has been further observed as under:"18 Although the exercise of this discretionary power cannot be imprisoned within the strait-jacket of any cast iron formula uniformly applicable to all situations. Yet. certain broad propositions as to what may constitute a ground for transfer can be deduced from judicial decisions. One of them is that where two suits raising common questions of facts and laws between parties common to both the suits are pending in two different courts it is generally in the interest of justice to transfer one of those suits to the other forum to be tried by the same course with consequent avoid ance of multiplicity in the trial of the same issues and the risk of conflicting decisions thereon. The instant case falls squarely within this category". There cannot be any dispute regarding the principle laid down in these two authorities. Learned Counsel for the petitioners submitted that the balance of convenience is in favour of the petitioners and it is in the interest of both the parties that the suits are tried at one place and therefore the suits filed by the respondent herein in the Court of the Civil Judge (J. D.) Anand should he transferred to the Court of the Civil Judge (S. D.) Narol and should be tried together. As observed earlier suit cannot be transferred in a light hearted manner merely on the ground of convenience of the parties but all other factors have to be taken into consideration. In the instant case the suits in the Anand Court are earlier in point of time than the suits filed by the petitioners in the Court of the Civil Judge (S. D.) Narol. Secondly the suits filed in the Court at Anand are filed in the Court of the Civil Judge (Junior Division) while the Suits filed in the Court at Narol are filed in the Court of the Civil Judge (Senior Division ). Thus on the basis of valuation the jurisdiction of both the Courts is different. Secondly the suits filed in the Court at Anand are filed in the Court of the Civil Judge (Junior Division) while the Suits filed in the Court at Narol are filed in the Court of the Civil Judge (Senior Division ). Thus on the basis of valuation the jurisdiction of both the Courts is different. Even the forum of Appeal will also be different The appeal against the judgment and decree passed by the Court of Civil Judge (J. D.) Anand would lie to the District Court Nadiad while the Appeal against the judgment and decree passed by the Court of the Civil Judge (Senior Division) Narol would lie to the High Court. Even if common evidence is taken in both the cases in one case the dispute relates to the suit agreement and is filed for declaring the same to be null and void and in other suits the case is for specific performance of the suit agreement. Therefore if common evidence is taken confusion is likely to arise while leading the evidence. Therefore considering all facts and circumstances of this case I am of the opinion that if the suits from Anand Court are allowed to be transferred to the Court of the Civil Judge (S. D.) Narol complications are likely to arise and therefore it will not be in the interest of parties to permit the transfer of the suits Hence in all these three applications the prayer for transfer is not granted 1 see no sufficient reason to permit the transfer of suits filed in the Court of the Civil Judge (J. D.) Anand to the Court of the Civil Judge (S. D.) Narol. All these three petitions are dismissed. Rule discharged with no order as to costs. Ad-interim reliefs stands vacated in all these three matters. Application dismissed. .