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2002 DIGILAW 155 (ORI)

Laxahira Nayak v. Subash Chandra Nayak

2002-03-14

P.K.TRIPATHY

body2002
JUDGMENT P. K. TRIPATHY, J. — Both the parties agree for disposal of the Civil Revision at the stage of hearing on admission. 2. Heard. The Civil Revision is disposed of in the follow¬ing manner. 3. This revision is directed against rejection of an application under Section 24, Code of Civil Procedure, 1908 (in short, ‘the Code’) as per the impugned order dated 22.1.2000 by the District Judge, Balasore in Misc. Case No. 70 of 1998. 4. Petitioners are the plaintiffs in Title Suit No. 544 of 1995-I pending in the Court of Civil Judge (Sr. Division), Bala¬sore, wherein prayer has been made for a decree for partition. In that suit plaintiffs 1 to 3 in O. S. No. 1103 of 1994 of the Court of Civil Judge (Jr. Division), Balasore are the defendants 8,9 and 10. It is stated in the impugned order and also by learned counsel for the petitioners that lot No. 10 of the plaint scheduled property in the above suit for partition is the suit property in O.S.No. 1103 of 1994-I. 5. Plaintiffs in O.S. No. 1103 of 1994 are four in number. As noted above, plaintiffs Nos. 1 to 3 of that suit are the de¬fendants 8,9 and 10 in the above noted suit for partition. Plain¬tiff No. 1 in the suit for partition is defendant No. 6 in O.S.No. 1103 of 1994. O.S.No. 1103 of 1994 has been filed in the Court of Civil Judge (Jr. Division) claiming for damages of Rs. 200/- on the allegations that the suit property, i.e., plot No. 47 of C.S.Khata No. 18 in Mouza Palasia had fallen to the share of the plaintiffs branch in a family partition and the defendants forcibly and illegally came and caught fishes from the tank situated on the suit land and thereby caused a loss and damage of Rs. 200/-. They also pray for a decree of permanent injunction against the defendants. Hereinafter that suit is referred to as suit for damage. 6. On the aforesaid background, the prayer of the plaintiffs in the suit for partition is for transfer of the suit for damage from the Court of Civil Judge (Junior Division) to the Court of Civil Judge (Sr. They also pray for a decree of permanent injunction against the defendants. Hereinafter that suit is referred to as suit for damage. 6. On the aforesaid background, the prayer of the plaintiffs in the suit for partition is for transfer of the suit for damage from the Court of Civil Judge (Junior Division) to the Court of Civil Judge (Sr. Division) for hearing of both the suits by the same Court but that prayer was turned down by learned District Judge as per the impugned order squarely on the grounds that both the suits are not between the same parties and the relief claimed in each of the suit is different and distinct from the other. 7. While reiterating the grounds advanced in the Court below and pressing for the prayer made therein learned counsel for the petitioners states that learned District Judge could not properly comprehend and appreciate the scope and jurisdiction vested in him under Section 24 of the Code and therefore errone¬ously rejected his application and non-interference will occasion a failure of justice. Learned counsel for the opposite party (plaintiffs in the suit for damage) on the other hand supports the impugned order and states that when the issues are not same and the scope of adjudication depends upon distinguishable facts and issues, there¬fore learned District Judge was quite justified in rejecting the application under Section 24 of the Code. In course of argument of the following reported decisions have been relied on and referred to. It appropriate to refer to the citations before deciding the issue on the basis of the above stated facts and contention. 8. In the case of M/s. Nigam Films and another v. Indian Bank, Danpur Branch, Kendrapara and others, 80 (1995) C.L.T. 161, this Court rejected the application for transfer of the suit which was sought for on the ground of convenience of the defend¬ants. This Court took note of the fact that the suit, transfer of which was sought for by the defendants, was pending at the stage of delivery of judgment after conclusion of hearing. Therefore the prayer for transfer on the ground of convenience to defend¬ants did not find favour of this Court. That ratio has no ap¬plicability to the facts and circumstances and the question involved in the present case. 9. Therefore the prayer for transfer on the ground of convenience to defend¬ants did not find favour of this Court. That ratio has no ap¬plicability to the facts and circumstances and the question involved in the present case. 9. In the case of Purna Chandra Mohanty and others v. Samanta Radhaprasana Das, A.I.R. 1953 Orissa, 46, a Division Bench of this Court was in seisin of an application for transfer of the suits to one forum. In that case the suit instituted at Cuttack by the wife and daughter was with claim of maintenance and separate residence on the ground of desertion and cruelty etc. One of the grounds was relating to the husband having a second spouse. In that suit the husband was the sole defendant. On the other hand, in the same year but at a later stage the husband filed a suit for damage at Balasore against the plain¬tiffs of the maintenance suit so also the father-in-law, brother-in-law, son-in-law (husband of daughter) and three others, alleg¬ing that the defendants, who are outsiders to his family, in connivance with the father-in-law and brother-in-law enticed away his wife and daughter (plaintiffs in maintenance suit) along with ornaments and valuables, and after taking them to Cuttack ille¬gally they performed the marriage of the daughter with the son-in-law. An application filed for transfer of the suit from Balasore to Cuttack by the defendants in Balasore suit was op¬posed to by the husband (plaintiff in the suit for damage). Keeping in view the dispute between the parties and the core question which was to be considered in both the suits, i.e., as to whether the plaintiffs in the maintenance suit were deserted or enticed away, that having a strong bearing for decision in both the suits, their Lordships observed that : “(5) xxx xxx xxx It is no doubt a well-established principle that 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 that a suit is not to be transferred from the Court where the plaintiff chooses to institute it, merely to serve the conven¬ience of the defendants. That is the principle that has been relied on by learned counsel for the respondent before us, citing the cases in - ‘Madho Prasad v. Moti Chand, 41 All 381 and - ‘Diwan Singh v. Arjanshah’, AIR 1930 Lah 944. On the other hand, there can also be no doubt that where there are two suits which raise certain common questions of fact and law, having a substantial bearing on the decision of each of the cases. It is obviously 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 deci¬sions. When such a situation arises the Court has to consider the balance of convenience, having regard to all the circumstances of the two suits ...........” That view was followed by this Court in the case of Chandra¬sekhar Tripathy and another v. Sashibhusan Tripathy and others, Vol. XXXIV, 1968 C.L.T. page 483, where one suit was pending at Berhampur with the prayer by plaintiff for specific performance of the contract by the defendants and the other suit instituted by defendants’ sons against the plaintiffs and defendants of Berhampur suit claiming that the defendants in Berhampur suit had no right to enter into an agreement for sale with respect to the joint family property. Following the principle in the case of Purna Chandra Mohanty (supra) an application for transfer of the suit for trial in the same forum was allowed. Similarly, in the case of Pitambar Padhi and another v. Smt. Santilata Padhi and others, AIR 1987 Orissa 45, a similar view was taken on identical facts and circumstances and the above noted two decisions were relied upon in support of such a decision. 10. The provision in Section 24 of the Code is wide enough to consider and decide whether or not an application under Sec¬tion 24 should be allowed. In the case at hand, the core question which is required to be gone into is whether there was a previous partition and if that will be answered in affirmative then wheth¬er the plaintiffs branch in the suit for damage had received the suit property to their share or were in possession to be legally entitled to claim for damage so far as the suit for damage is concerned. That finding will have a binding effect in the suit for partition. That finding will have a binding effect in the suit for partition. If the answer on that issue will be in negative relating to prior partition, then the prayer of the plaintiffs in the partition suit is to be considered for grant of preliminary decree for partition. Thus, trial of both the suits by the same forum is beneficial to the parties and also in the interest of justice and for proper adjudication of the dispute. Apart from that, the Court of Civil Judge (Sr. Division), Balasore where the suit for partition is pending is competent and has the jurisdic¬tion to try and decide the suit for damages which is pending in the Court of Civil Judge (Jr. Division). On the other hand the Civil Judge (Jr. Division) has no pecuniary jurisdiction to decide the suit for partition. 11. In view of the foregoing discussion this Court finds that learned District Judge failed to analyse the facts in proper manner and apply the law in just manner and therefore, committed error by not exercising the jurisdiction vested in him properly and substantially. For that reason the impugned order is set aside and the application under Section 24 of the Code filed by the plaintiffs in the partition suit is allowed and it is direct¬ed that the suit for damage pending in the Court of Civil Judge (Jr. Division) Balasore, vide O.S. No. 1103 of 1994-I shall be transferred to the file of Civil Judge (Sr. Division), Balasore where the suit for partition i.e. Title Suit No. 544 of 1995-I is pending, and both the suits shall be disposed of in accordance with law by the said Court (Civil Judge, Senior Division, Bala¬sore). The Civil Revision is accordingly allowed. Revision allowed.