Rajesh Gwalia v. Basudeo Lal Gwalia — 1996 DIGILAW 133 (CAL)

JUDGMENT The Court : This is an application of the defendants No.1 and 4 for transfer of this suit to the City Civil Court at Calcutta to be tried before the Learned 12th Bench of the said Court along with Title Suit No.895 of 1991, Title Suit No.280 of 1992 and Title Suit No.183 of 1992 now pending before the Learned 12th Judge at City Civil Court at Calcutta. 2. The present application has been made in Suit No.162 of 1992. The application should have been made as an independent proceeding. However, the plaintiffs in suit No. 162 of 1992 have been served with a copy of this application and they have contested the same by filing an affidavit-in-opposition and by making elaborate submissions through their counsel. In that view of the matter, though the application is not in form, but since the plaintiffs in Suit No.162 of 1992 have not suffered any substantial prejudice for the fact that the application is not in form and they having been given ample opportunity to make their submissions, I have decided to proceed to decide the application. 3. This application has been made under Clause 13 of the Letters Patent and s. 24 of the Code of Civil Procedure, 1908. Under Clause 13 of the Letters Patent, I do not have any authority to transfer this suit to the City Civil Court. I have only authority to remove suits pending in other courts to this court and thereafter to try and determine the same under the said Clause of the Letters Patent. But under s. 24 of the Code of Civil Procedure, 1908 this court has power to transfer any suit pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same in addition to power to withdraw any suit pending in any court subordinate to it and to try and dispose of the same. The word "competent" is significant. A suit which is pending before a Court having unlimited pecuniary jurisdiction, I am of the view, cannot be transferred to a court having limited pecuniary jurisdiction. The word "competent" is significant. A suit which is pending before a Court having unlimited pecuniary jurisdiction, I am of the view, cannot be transferred to a court having limited pecuniary jurisdiction. In that view of the matter, even if I have jurisdiction to exercise power under s. 24 of the Code of Civil Procedure, 1908 while authorised to deal with interlocutory matters sitting in the Original Side of this court, which authority I have, however, not decided, even then I cannot transfer this suit to the City Civil Court at Calcutta because the City Civil Court at Calcutta had and has no pecuniary jurisdiction to receive or to try or to determine this suit. 4. But, that is not the end of the matter. The question is if I find that there is possibility of conflict of judicial opinions by two different courts while dealing with two suits between same or substantially same parties and relating to same or similar subject matter in an application made under Clause 13 of the Letters Patent, should I reject the application holding that I have no authority to grant reliefs prayed for or for the purpose of justice I should direct transfer or removal of one of the suits pending before a court subordinate to this court in order to avoid conflict of the judicial opinion? I think it is my duty to prevent miscarriage of justice, which is inevitable if there are conflicting judicial opinions and therefore in order to prevent miscarriage of Justice, it is my obligation to have such suit transferred to this court even though not prayed for. 5. In Title Suit No. 895 of 1991, the plaintiffs in Suit No.162 of 1992, which is pending in this court, have sought a declaration that as coparceners of the Hindu Undivided Family, they are entitled to the benefit of the properties mentioned in the Schedule to the plaint filed in the said Suit and the defendant in the said suit, being the defendant No. 1 in Suit No.162 of 1992, has no right to arbitrarily sell out or dispose of the properties mentioned in the Schedule and to use the sale proceeds for his own benefit and enjoyment and a permanent injunction as a consequence of such declaration. The properties mentioned in the schedule to Suit No.162 of 1992, which is a partition and administration suit, have also been mentioned in the Schedule to Title No.895 of 1991. 6. In Title Suit No. 280 of 1992, the defendant No.1 in Suit No.162 of 1992 has claimed from the plaintiffs in Suit No.162 of 1992, possession of a room under s. 6 of the Specific Relief Act, 1963. 7. In Title Suit No.183 of 1992 the plaintiffs in Suit No.162 of 1992 have sought for a declaration that the defendant No.1 in suit No.162 of 1992 has no right, title and interest on the plaintiffs' property at premises No.59, Kesab Chandra Sen Street, Calcutta. 8. I am of the view that the claims and the subject matter of Suit No.162 of 1992, Title Suit No.895 of 1991 and Title Suit No.183 of 1992 are such that if the said suits are tried and disposed of by different courts, then there is every possibility of conflict of judicial opinion. The claim in Title Suit No.280 of 1992 is founded on possession and the same is a Suit under s. 6 of the Specific Relief Act. A judgement delivered on the said suit will not, nor can at all be in conflict of the judgments to be delivered ultimately in Suit No.162 of 1992, Title Suit No.895 of 1991 and Title Suit No.183 of 1992. 9. In that view of the matter, I direct transfer of Title Suit No.895 of 1991 and Title Suit No.183 of 1992 now pending before the Learned 12th Judge, City Civil Court at Calcutta to this court. The records of Title Suit No.895 of 1991 and Title Suit No.183 of 1992 should be forthwith transferred to this court and the Registrar of Original Side of this court is directed to forthwith have the records of the said Title Suits transferred to this through a special messenger at the cost of the plaintiffs in Suit No.162 of 1992. 10. Suit No. 162 of 1992 and Title Suits No. 895 of 1991 and 180 of 1992, on being transferred to this court, should be heard analogously. 11. Let all parties including the Registrar, Original Side, to act on a signed xerox copy of this dictated order on the usual undertaking. Application disposed of.