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2008 DIGILAW 4645 (MAD)

D. S. Kanagarathinam v. Damodaran & Another

2008-12-15

M.VENUGOPAL

body2008
Judgment :- Common Order: 1. The petitioner herein has filed these Transfer Civil Miscellaneous Petitions praying for issuance of an order by this Court to withdraw A.S.No.187 of 2005 and A.S.No.328 of 2005 pending on the file of the learned Additional District Judge, Fast Track Court NO.V and III, Chennai respectively and to hear the said appeals along with C.R.P(NPD) No.2012 of 2005 pending on the file of this Court. .2. .2. The learned counsel for the petitioner submits that the petitioner has filed C.R.P. (NPD) NO.2012 of 2005 against the Judgment and decree of the learned V Assistant Judge, City Civil Court, Chennai in O.S.No.6312 of 1993 and that the said suit was tried along with other two suits viz., O.S.No.5151 of 1992 and O.S.No.678 of 1996,the suit filed by him against the respondents and in O.S.No.5151 of 1992, the relief was sought for not only against the respondent in C.R.P(NPD) No.2012 of 2005 as also his brother one Venkatesan for permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the property measuring 35 cents in S.NO.276/1 and situate at Old No.13A,New No.55, Rajamangalam 1st street, Villivakkam, Chennai49 and that one Damodaran viz., the respondent herein has filed O.S.No.6312 of 1993 as per Section 6 of the Specific Relief Act and further that O.S.No.678 of 1996 has been filed by the petitioner herein for declaration that the decree in O.S.No.3669 of 1986 on the basis of which the respondent is claiming his right which is not binding upon the petitioner and inasmuch as the respective cases filed by the parties cemented on same facts, same oral and documentary evidence and since O.S.No.5151 of 1992 and O.S.No.6312 of 1996 were pending before the same viz., V Assistant Judge, City Civil Court, Chennai, the petitioner filed a petition for transferring O.S.No.678 of 1996 from the file of VII Assistant Judge, City Civil Court, Chennai to the V Assistant Judge, City Civil Court, Chennai and accordingly, O.S.No.678 of 1996 has been transferred to the file of V Assistant Judge, City Civil Court, Chennai and all the three suits has come up to V Assistant Judge, City Civil Court, Chennai wherein three suits were tried together and evidence has been recorded in O.S.No.5151 of 1992 and a common Judgment has been delivered on 30.8.2004 and in order to avoid any possible conflicting Judgments by different Courts on the same issues and also in order to avoid unnecessary wastage of time and expenses and in the interest of justice, the petition for transfer may not be allowed by this Court in withdrawing A.S.No.187 of 2005 pending on the file of Additional District Judge, Fast Track Court-V, Chennai and A.S.No.328 of 2005 pending on the file of the Additional District Judge, Fast Track Court -III, Chennai and to hear the appeals along with the C.R.P.(NPD) No.2012 of 2005 pending on the file of this Court. 3. The contention of the learned counsel for the petitioner is that the Judgment and decree in O.S.No.6312 of 1996 on the file of V Assistant Judge, City Civil Court, Chennai is not an appealable one, the petitioner herein has been profused to file the civil revision and in C.R.P.(NPD) No.2012 of 2005 , there has been an order of interim stay of execution of the decree and as against the dismissal of O.S.No.5151 of 1992 and O.S.No.678 of 1996, two appeals viz., A.S.No.187 of 2005 and A.S.No.328 of 2005 are pending and therefore to prevent plurality of the proceedings and for convenience of all parties, the said appeals may be transferred from the file of the respective Fast Track Courts/City Civil Courts to the file of this Court to be heard along with C.R.P(NPD) No.2012 of 2005. .4. .4. Taking a contra stand, the learned counsel for respondents contends that the transfer civil miscellaneous petitions are an abuse of process of law, vexatious, unsustainable one and that the petitioner has filed appeals against the decree and Judgment in O.S.No.5151 of 2005 passed by V Assistant Judge, City Civil Court, Chennai and that the said appeal is A.S.No.328 of 2005 now pending on the file of Additional District Judge, Fast Track Court-III, Chennai and that the petitioner has also filed A.S.No.187 of 2005 as against the Decree and Judgment passed in O.S.No.678 of 1996 now pending on the file of Additional District Judge, Fast Track Court, Chennai and that the petitioner has projected C.R.P.(NPD) No.2012 of 2005 against the Judgment and decree passed in O.S.No.6312 of 1996 by the V Assistant Judge, City Civil Court, Chennai and that two appeals viz., A.S.No.328 of 2005 and A.S.187 of 2005 have been filed under Section 15 of the Chennai City Civil Court Act 1982 and as per Section 15(2) (a) of the said Act, an application shall lie to the Principal Judge, from any decree or order appealable under the provisions of the Code of Civil Procedure 1908(Central Act) V of 1908 passed in any suit or proceeding by a Judge other than Principal Judge or an additional Judge and therefore the appeals filed against the Judgment and decree passed by the learned Assistant Judge, City Civil Court, Chennai is to be heard and decided by the Principal Judge of City Civil Court and as per Sub Section 3 of Section 15 of Chennai City Civil Court Act 1982 provides for remedy of second appeal to the High Court from any decree passed by the Principal or Additional Judge in exercise of the appellate Jurisdiction under Section 15(2A) of the Act and if the said two appeals are withdrawn and heard by this Court, then the remedy of the second appeal will be deprived to the parties concerned and such relief is against the provisions of Section 15(3) of the Chennai City Civil Court Act and that the documents in O.S.No.6312 of 1996 relied on by the parties are separate and independent one and these documents can be separated or certified copies can be obtained and filed before this Court for deciding the Civil revision petition and therefore prays for dismissal of the transfer civil miscellaneous petitions. 5. 5. The learned counsel for the petitioner contends that the right of a party to an appeal is always subject to the right of the High Court to transfer it under Section 24 of CPC and support of his contention, relies upon the decision reported in Sajudei v. Rampati Kunwari(AIR 1960 Allahabad 503) wherein it is inter alia observed that the provision that the High Court can transfer a case to a competent Court means only this that the Court must be competent at the time when the transfer is ordered and not that it must have been competent for some time previously or that it was competent to hear it when it was instituted. There is no warrant for restricting the power of the High Court in this manner. Further in the aforesaid decision at paragraph 11, it is observed that the present appeal is valued at Rs.6,000/-ie., only a little more than the maximum valuation for an appeal to be filed in the District Judges Court under the old law and is not likely to be disposed of by this Court in less time than the District Judge would take in disposing of it. We consider it fit to be transferred. 6. He also cites on a decision reported in M/s Engineering Investments P.Ltd.,-v-M/s Bharat Heavy Electricals Ltd. (AIR 1983 MLJ 1 ) wherein at paragraph 22 at page 7 ,this Court has held that The abuse of process resorted to, of which respondents are complaining, would be avoided, on both matters being heard in the same Court. Further prolongation of proceedings, would also be prevented. Otherwise, on the appeal pending in the City Civil Court, being allowed to be heard, it will result in a second appeal being filed in this Court and once again the possibility of conflicting decisions being rendered in this Court itself in different jurisdictions would arise. Therefore, if as desired by the respondents, the matter is to be disposed of by the City Civil Court, what is most desirable to be avoided in the interests of justice would not be achieved. Hence even though the petitioner who has come before Court seeking for a particular relief, which is not conducive to the interests of justice, this order passed under Section 24 CPC for a joint hearing. Hence even though the petitioner who has come before Court seeking for a particular relief, which is not conducive to the interests of justice, this order passed under Section 24 CPC for a joint hearing. Further more, in paragraph 24 of the said Judgment, it is observed as follows: "In the larger interests of justice and equity and to avoid conflict of decisions of which the Court is more concerned, than that of the litigants; even if there are certain procedural defects, they can be cured. Therefore, such an enablement would be within the scope of the law, particularly when there is no statutory prohibition of the same, learned Judge exercising both appellate and original jurisdiction. In fact, the learned Judges of the Court exercise several categories of jurisdictions, during the course of the day in the disposal of the cases, like Special-Original Jurisdiction pertaining to proceedings instituted under Article 226 of the Constitution. Appellate, Original, Insolvency, Criminal, Company cases jurisdictions etc. 7. The learned counsel for the petitioner also relies upon a decision reported in G.Abdul Khadir-v- V.Pachaiyappa Chetti (AIR 1940 Madras 9) wherein this Court has held that an application made under Section 24 of the Code for the transfer of a suit from the Court of Small Causes, Madras to the City Civil Court, Madras can be entertained and in view of Section 5 of Madras City Civil Courts Act, this is not a case of conferring by the order of transfer itself jurisdiction on the Court to which the transfer is made, which it would not possess but for the transfer. 8. At this juncture, the learned counsel for the respondents submits that as against the original decree in O.S.No.6312 of 1993, a suit for declaration is maintainable before the City Civil Court and therefore, the Civil revision petition filed by the transfer civil miscellaneous petitioner before this Court is not maintainable in law. 9. The involvement of common question of law and facts is not the only ground which authorises the transfer of suit under Section 24 of the Civil Procedure Code, unless the satisfaction of the Court which exercise the power under Section 24 of CPC is very important. 9. The involvement of common question of law and facts is not the only ground which authorises the transfer of suit under Section 24 of the Civil Procedure Code, unless the satisfaction of the Court which exercise the power under Section 24 of CPC is very important. If the facts are inter-twined with the different causes of action are separated and if the suit/Appeal is tried independently then the suit/Appeal result in conflicting decisions if the litigating parties in the appeals/suits are one and the same and the subject matter involved in all the matters are same , apart from the common nature, facts being inter-twined and overlapping the possibility of plurality of decisions if the suits/Appeals are tried separately cannot be totally ruled out. 10. Merely because one of the parties will be deprived of a particular forum of an Appeal, it cannot be said that the jurisdiction under Section 24 of CPC is barred in the considered opinion of this Court. Moreover, by transfer of cases, no cases are decided. 11. It is to be pointed out that two suits one before Civil Court and one before High Court, suit before Civil Court is withdrawn and transferred to High Court for simultaneous trial of suits as per decision 2002 AIHC 4987(Cal). 12. Moreover, by transfer of cases, no cases are decided. 11. It is to be pointed out that two suits one before Civil Court and one before High Court, suit before Civil Court is withdrawn and transferred to High Court for simultaneous trial of suits as per decision 2002 AIHC 4987(Cal). 12. As far as the present case is concerned, since two appeals viz., A.S.No.328 of 2005 and A.S.No.187 of 2005 are pending on the file of City Civil Court, Chennai and since the Civil revision petition (NPD) No.2012 of 2005 is pending as against the Judgment and decree passed by the V Assistant Judge, City Civil Court, Chennai in O.S.No.6312 of 1993, if both the appeals are heard by the City Civil Court/First track Court Judges and if the Civil revision petition is to be determined by this Court then there is a possibility or scope for arriving at a plurality or multiplicity proceedings in a common issues which involved between the parties where already an evidence has been let in by the parties and in that view of the matter, in the interest of justice and balance of convenience being the relief factor and to secure the ends and advancement of justice, this Court allow these transfer civil miscellaneous petitions and directs the withdrawal of two appeals viz., A.S.No.187 of 2005 and A.S.No.328 of 2005 respectively from the file of Additional District Judge(Fast Track Court No.V) and Additional District Judge( Fast Track Court NO III) respectively to the file of this Court and the Additional District Judge, (FTC NO.V) Chennai and Additional District Judge(FTC No.III) are directed to transfer the said appeals from its file to the file of this Court ,within seven days from the date of receipt of a copy of this order. Liberty is given to the respondents to take a plea of maintainability of civil revision petition No.2012 of 2005 before this Court. There will be no order as to costs. Consequently, connected M.Ps are closed.