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2009 DIGILAW 179 (AP)

G. Shirisha v. G. Rajaiah

2009-03-18

P.S.NARAYANA

body2009
JUDGMENT : 1. Heard Sri H. Venugopal, the learned Counsel representing the petitioners and Sri B.Narayana Reddy, the learned Counsel representing the respondent. 2. This Court ordered notice on 14-11-2008. The Counsel for respondent entered appearance and filed counter affidavit. 3. Sri H. Venugopal, the learned Counsel representing the petitioners in Tr.C.M.P. had taken this Court through the contents of the affidavit filed in support of the Tr.C.M.P. and would maintain that in the light of the facts and circumstances, the Tr.C.M.P. to be ordered. 4. Sri B. Narayana Reddy, the learned Counsel representing the respondent had taken this Court through the contents of the counter affidavit and would maintain that in the light of the facts and circumstances of the case, inasmuch as, the Tr.C.M.P. cannot be ordered even if the grounds raised in the affidavit filed in support of the Tr.C.M.P. to be considered, the same to be dismissed. The Counsel also placed reliance on the decision of the Apex Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh V Kandi Friends Education Trust ( 2008(1) Supreme 348 ). 5. Heard the Counsel. 6. The Tr.C.M.P. is filed by the petitioners under Section 24 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) praying for withdrawal of O.S.No.384/2008 pending on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad, to the file of the II-Additional District Judge, Warangal to be tried and disposed of along with O.S.No.24/2008 and pass such other suitable orders. 7. The 1st petitioner had sworn to the affidavit filed in support of the Tr.C.M.P. It is stated that the 2nd petitioner is the brother of the 1st petitioner and 3rd petitioner is the father. It is also stated that the respondent had deliberately shown the address of this petitioner at Warangal with a malafide intention as if her brother and parents are residing in the apartment. It is also further stated that the petitioner No.3 is a government employee and residing at Hanamkonda and her brother - petitioner No.2 is temporarily staying with her as she is staying alone. Though she has been residing in the suit flat, the respondent deliberately had shown wrong address. The said suppression of facts would go to show the malafide intention of the respondent. Though she has been residing in the suit flat, the respondent deliberately had shown wrong address. The said suppression of facts would go to show the malafide intention of the respondent. It is also stated that the respondent herein is the father of her deceased husband Sharath Chandra, who died on 22-9-2007 in a motor vehicle accident occurred on 3-9-2007 at Bangalore Manipal Hospital. Subsequent to the death of her husband, his parents started harassing her mentally and otherwise with an evil intention to deprive her statutory rights with regard to the compensation as well as the property and they have withdrew some of the moneys. As such the petitioner filed O.P.No.1634/2007 on the file of the III-Additional District Judge, Warangal for grant of Succession Certification under Section 372 of the Indian Succession Act. That apart, the petitioner also had filed a suit for partition in O.S.No.24/2008 on the file of the II-Additional District Judge, Warangal in respect of various properties including Flat No.502, Block-I, Srisairam Gardents, Madhuranagar, Hyderabad, bearing H.No.8-3-226/B-1/502 (G-139). Both the suit and O.P. are pending at Warangal and the Trial Court was pleased to grant interim orders in both the matters. That while so, the respondent herein filed suit O.S.No.384/2008 on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad for eviction against the petitioner and her brother in respect of the premises bearing Flat No.502, Block-I, Srisairam Gardents, Madhuranagar, Hyderabad, alleging that the petitioner's brother is in illegal occupation of the same. The allegations made in the plaint are totally false and frivolous. Further it is stated that subsequent to the death of her husband, the petitioner is in occupation of the same apartment as she had every right to reside in the said apartment. Further it is stated that the suit schedule property in O.S.No.384/2008 pending on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad, is also the subject matter of O.S.No.24/2008 pending on the file of the II-Additional District Judge, Warangal. Since the dispute is in between the same parties in respect of the very same schedule property, to avoid conflicting decisions, this Court may withdraw the suit O.S.No.384/2008 pending on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad and be transferred to the Court of the II-Additional District Judge, Warangal to be tried and disposed of along with O.S.No.24/2008 pending on its file. 8. 8. In the counter affidavit filed by the respondent, it is stated that it is true that petitioners No.2 and 3 are the brother and father of the 1st respondent respectively and it is incorrect to state that this respondent had deliberately shown the address of the 1st petitioner at Warangal with a malafide intention as if her brother and parents are residing in the Apartment. Further it is stated that it is true that the father of the 1st petitioner i.e., the 3rd petitioner herein is a Government Employee, but at the same time, it is incorrect to state that he is staying at Hanamkonda and her brother i.e., the 2nd petitioner is temporarily staying with the 1st petitioner as she is staying alone. Further it is also stated that it is incorrect to state that the 1st petitioner is residing in the suit flat and this respondent had deliberately shown her address wrongly to mislead the Court. There is neither any suppression of facts nor any deliberately attempt on the part of this respondent to mislead the Court at any point of time or is there any malafide intention attributable to the respondent. Further it is stated that in reply to para 3 of the petitioners' affidavit that it is true that his son Sharat Chandra had expired on 22-9-207 in a motor vehicle accident that took place on 3-9-2007 at Bangalore. It is also stated that it is incorrect to state that neither himself nor his wife had ever harassed the 1st petitioner either mentally or otherwise with an intention to deprive her statutory rights with regard to compensation as well as property. It is also incorrect to state that they had withdrawn some of the moneys. Further it is stated that it is true that the 1st petitioner filed O.P.No.1634/2007 on the file of the III-Additional District Judge, Warangal under Section 372 of the Indian Succession Act for (a) declaration that 1st petitioner is legal heir and successor to late Sharat Chandra and entitled to receive the benefits shown in the schedule with due process; (b) direct the respondent No.s 2 to 6 not to withdraw the benefits that were payable towards the deceased husband. It is also true that the 1st petitioner also filed suit O.S.No.24/2008 on the file of the II-Additional District Judge, Warangal, for partition of schedule property i.e., to pass a decree for (a) preliminary decree for partition of suit schedule 1 to 3 of the properties into two equal shares (b) to pass final decree by appointing an Advocate-comissioner to partition the property by metes and bounds. Both the claim petition and suit are pending at Warangal and the Trial Court granted interim orders in both the matters. Further in reply to para No.4 of the petitioner's affidavit it is stated that it is true that this respondent filed O.S.No.384/2008 on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad, against the petitioners, a suit for (a) recovery of possession of suit property bearing flat No.502, (b) to award Rs.1,20,000/- as damages for the period from 1-11-2007 to 30-6-2008 @ Rs.15,000/-per month (c) to award future damages @ Rs.15,000/- per month commencing from 30-6-2008 till date and hand over vacant and actual possession of plaint schedule property to this respondent since they are in illegal occupation of the same. Further it is stated that it is incorrect to state that subsequent to the death of his son, the 1st petitioner is in occupation of the said apartment and she has every right to stay in the said Apartment. The suit property in O.S.No.384/2008 was infact his self-acquired property and the 1st petitioner or nor any other person have any right whatsoever on the aforesaid property. Further it is stated that this respondent had got purchased the same by obtaining loans from various sources including that of Life Insurance Corporation of India, Ameerpet Branch, Hyderabad and later on, transferred to the State Bank of Hyderabad, Kakatiya University Branch at Warangal. The brother of the 1st petitioner namely the 2nd petitioner herein has made a request for temporary accommodation in the month of May, 2007 and accordingly, he was allowed to stay only for a period of 15 days sympathetically in view of their relationship, but on completion of said 15 days time, the petitioners No.2 and 3 herein have again requested to allow them to stay temporarily till the end of October, 2007. There is no jural relationship in between himself and the petitioner No.2 and 3 herein and this respondent further states that after expiry of his son, in the month of October, 2007, he had requested petitioners No.2 and 3 to leave the schedule flat, but they failed to hand over the possession of the same to him and therefore he got issued a legal notice on 10-5-2008 for handing over the suit property. The petitioners are greedy and are not bothered for relationship or for untimely death of his son and they are bothered only for the money. The fact that the petitioners have filed so many cases in so many Courts goes to show that they are only interested for money but nothing else. The suit O.S.No.384/2008 pending on the filed of the III-Additional Chief Judge, City Civil Court, Hyderabad, is no way connected to the suit O.S.No.24/2008 pending on the file of the II-Additional District Judge, Warangal. The suit property mentioned therein is not liable for partition at all since the same is his self-acquired property purchased out of his own savings and earnings. Further it is stated that the 1st petitioner is not at all residing in the suit property mentioned in O.S.No.384/2008 inasmuch as she has mentioned her residential address at H.No.5-66, LIC Colony, Vidyaranyapuri, Hanamkonda, Warangal District in M.V.O.P.No.111/2009 on the file of the Chairman, Motor Accidents Claims Tribunal cum District Judge, Warangal, in FIR No.297/2007 of Police Station, KU, Warangal dt. 22-9-2007, in the legal notice dt.11-10-2007 issued by Sri N.Narasimha Rao, Advocate, Warangal on behalf of the 1st petitioner, in W.P.No.22869/2007 pending on the file this Court filed by the 1st petitioner and in O.P.No.1634/2007 filed before the III-Additional District Judge, Warangal. Thus, it is evident that the 1st petitioner is not in occupation and possession of the suit property in O.S.No.384/20087 on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad, at any point of time nor she is residing therein. The present petition is a vexatious and frivolous petition and the same was filed only to drag on the proceedings on the file of the II-Additional Chief Judge, City Civil Court, Hyderabad, by not filing written statement therein. It is also stated that the petitioners did not make out substantial grounds for granting the relief prayed in the present Tr.C.M.P. filed under Section 24 of the Code. 9. It is also stated that the petitioners did not make out substantial grounds for granting the relief prayed in the present Tr.C.M.P. filed under Section 24 of the Code. 9. Strong reliance was placed on the decision of the Apex Court Kulwinder Kaur @ Kulwinder Gurcharan Singh (Referred Supra) wherein at para 14 the Apex Court observed as hereunder:- "Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit, issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which the suit is pending, important questions of law involved or a considerable Section of public interested in the litigation; 'interest of justice' demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order." 10. Specific stand had been taken that the subject matter in O.S.No.24/2008 pending on the file of the II-Additional District Judge, Warangal and the plaint schedule property in O.S.No.384/2008 pending on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad, is one and the same and to avoid conflicting decisions, the Tr.C.M.P. to be ordered. Specific stand had been taken that the subject matter in O.S.No.24/2008 pending on the file of the II-Additional District Judge, Warangal and the plaint schedule property in O.S.No.384/2008 pending on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad, is one and the same and to avoid conflicting decisions, the Tr.C.M.P. to be ordered. On a careful analysis of several averments made in the affidavit filed in support of the Tr.C.M.P. and also in the counter affidavit, though several other further facts had been narrated in the counter affidavit, these aspects may have to be decided at the appropriate stage. No doubt, specific stand had been taken that the property is not liable for partition at all since the same being self-acquired property of the respondent. This is a matter concerned with the merits to be decided at the final disposal of the suits. In the light of the facts and circumstances, this Court is satisfied that O.S.No.384/2008 pending on the file of the III-Additional Chief Judge, City Civil Court, Hyderabad, is hereby withdrawn and transferred to the II-Additional District Judge, Warangal, to be tried and be disposed of with O.S.No.24/2008 in accordance with law. 11. Accordingly, Tr.C.M.P. is hereby ordered. No costs.