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2007 DIGILAW 759 (KAR)

M. v. RAMACHANDRASA VS PRAKASH CHAND

2007-11-22

D.V.SHYLENDRA KUMAR

body2007
ORDER D.V. Shylendra Kumar, J. This revision petition under Section 115 is directed against the order dated 23-6-2007 passed by the Court of Principal City Civil and Sessions Judge, Bangalore in Miscellaneous No. 320 of 2007, on the file of that Court, a petition under Section 24 of the Code of Civil Procedure, 1908 filed by the respondents and as such petition is allowed under the impugned order and the Original Suit Nos. 333 and 334 of 2005 were transferred from the Court of CCH XIII to the City Civil Court-XXVII, transfer is on the premise that Original Suit No. 2683 of 2005 instituted by the defendants in O.S. Nos. 333 and 334 of 2005 were pending before the transferred Court and that the defendants in O.S. No. 2683 of 2005 were the plaintiffs in the two suits directed to be transferred. 2. Such an order of transfer is questioned by the plaintiff in O.S. No. 2683 of 2005 contending inter alia that the transfer order is not warranted; that the order amounts to an improper exercise of Jurisdiction under Section 24 of the Civil Procedure Code, 1908; that the learned District and Sessions Judge ordering transfer failed to see that the provision of Section 24 is mere misused by seeking transfer of untenable dubious suits only to retard the progress in O.S. No. 2683 of 2005; that the two suits transferred i.e., O.S. Nos. 333 and 334 of 2005 were not either tenable or bona fide suits that had been filed before the Trial Court. 3. It is on such premise the present revision petition. Notice had been issued and the petition had been admitted’. Respondents have entered appearance. Petitioners are represented by Sri Poonacha and Respondents are represented by Sri Ashok Kalyan. 4. I have heard the learned Counsel appearing for the parties. 5. 3. It is on such premise the present revision petition. Notice had been issued and the petition had been admitted’. Respondents have entered appearance. Petitioners are represented by Sri Poonacha and Respondents are represented by Sri Ashok Kalyan. 4. I have heard the learned Counsel appearing for the parties. 5. Submission by Sri Poonacha, learned Counsel appearing for the petitioners is that the two suits which are sought to be transferred by respondents by filing a petition under Section 24, were suits which were not tenable or bona fide; that they were suits for specific performance filed in the year 2005 on the basis of an alleged oral agreement of the year 1992 purporting to agree to lease the schedule premises in favour of the plaintiff for a period of 40 years from 1992; that a suit of this nature was not even tenable as there cannot be an oral agreement for leasing the immovable property for 40 years and at any rate there being no valid agreement in the eye of law, the suit would not take off and both suits being alike., the suits were sought to be transferred to the Court where the suit filed by the petitioners namely O.S. No. 2386 of 2005 was pending, which was a suit for ejectment against the very plaintiffs in the other two suits and which had made considerable progress and had reached the stage of defendants’ evidence only to retard the progress in the ejectment suit and not for any bona fide purpose, but more a dilatory tactics. Therefore, the learned Counsel appearing for the petitioners submits that the power under Section 24 has been wrongly used in favour of the respondents herein and the order is required to be revised and set aside. 6. Therefore, the learned Counsel appearing for the petitioners submits that the power under Section 24 has been wrongly used in favour of the respondents herein and the order is required to be revised and set aside. 6. Sri Ashok Kalyan, learned Counsel appearing for the respondents, on the other had would submit that the impugned order is a perfect and valid order; that it was justified in the circumstances that the understanding between the parties was for a lease of the schedule premises for some period and after that period had expired, parties had entered into an agreement to continue the lease for intervals of six months starting from 1st January, 2005 till 1st January, 2047; that the parties had also agreed for a periodic increase of rent after every three years etc., that as the petitioners had gone back on such understanding by issue of legal notice, it had become necessary for the respondents to institute suits to realise their rights as per the oral agreement and as the subject-matter of these two suits and the suit instituted by the petitioners being one and the same, it is only proper and convenient that one Court tries and hears the suits to avoid multiplicity of the proceedings and that having been sustained, there is no scope for interference. 7. While the powers conferred on the High Court and the District Court in terms of Section 24 is quite wide and should be exercised on the application of any of the parties seeking for transfer of pending cases to other Courts or to the very Court, it is not a power to be exercised for the mere asking or without evincing awareness to the nature of the matters sought to be transferred i.e., the nature of the suit, the need for transferring such suit to the Court where another suit is pending and other related aspects with regard to the suit. 8. 8. The suits which were sought to be transferred by the respondents in a petition filed under Section 24, are suits for specific performance based on certain oral agreements in respect of immovable properties and a perusal of the plaint pleadings placed before the Court by Sri Ashok Kalyan, learned Counsel for the respondents in this petition and the plaintiffs in two suits transferred, indicates that the understanding itself was for leasing of the property for six months at a stretch and that arrangement should have been continued for a period of 40 years. 9. The very plaint pleading would put the Trial Court on the alert as regard to the nature of the suit and about the bona fides of the suits. While it may be true that the subject-matter of the three suits was common, being two shop premises, the nature of the suits is also a very relevant criteria in ordering an application under Section 24 of the Code of Civil Procedure. While O.S. No. 2683 of 2005 is a suit for ejectment /recovery of possession from the defendants, it is obvious that the suits filed by the respondents herein in O.S. Nos. 333 and 334 of 2005 was mere as a counter blast and to stall the recovery suit instituted after issuing the suit notice. While it is not necessary for this Court to comment upon the possibilities or the success or failure of the three suits, O.S. Nos. 333, 334 and 2386 of 2005, the plaint pleadings in the suit are very relevant for the purpose of plaintiffs getting the relief as sought for and the plaint pleadings in the two suits indicate that the chances of the suits being decreed are not very bright. Be that as it may, the Trial Court should have shown awareness to this aspect of the matter. Be that as it may, the Trial Court should have shown awareness to this aspect of the matter. The mere fact that this Court has observed while ordering W.P. No. 3799 of 2000 and while examining rejection of an application filed under Section 10 in O.S. No. 2386 of 2005 that the writ petitioner would have possible regards to the provisions of Section 24 of the CPC or Section 12 of the Bangalore City Civil Court Act, 1979, by itself does not absolve the District Court exercising jurisdiction under Section 24 and for passing orders under Section 24 of the Code, the duties and responsibilities imposed on the District Court to consider such a petition on the relevant aspects and the need for transferring the suits sought to be transferred to other Court. While no awareness is shown under the impugned order in this aspect, on the other hand the learned Judge passing the impugned order indicates that having regard to the advance stage of suit O.S. No. 2683 of 2005, it was proper to transfer the other two suits though lagging behind, to the Court where O.S. No. 2683 of 2005 was pending. Such a reasoning is most illogical and bordering on perversity. The respondents who are the petitioners in the Miscellaneous Petition No. 320 of 2007 has not made out any case for the transfer of the two suits. The impugned order not only suffers from material irregularity but is bordering on illegality and bad for exercising Jurisdiction vested in the Court without due application to the facts situation and the need for exercising the power. 10. Therefore, this revision petition is allowed and the impugned order set aside. 11. The petition filed by the respondents before the Court below under Section 24 of the CPC is dismissed. The suits to be restored to their original file in the respective Courts and to be tried independently. It is necessary for the Trial Courts to show awareness as to the nature of the suits and to proceed in an expeditious manner for the early disposal of the respective suits. Petition allowed levying cost of Rs. 5,000/- on the respondents.