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2010 DIGILAW 694 (CAL)

Raj Kumar Modi v. Prabhas Dutta

2010-06-24

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. ORIGINALLY, the suit for eviction on the ground of reasonable requirement of the plaintiff/opposite party was filed against the defendant/petitioner herein in the City Civil Court at Calcutta as the said Court had both territorial and pecuniary jurisdiction over the subject matter of the said suit at the time of filing thereof. During the pendency of the said suit, City Civil Court (Amendment) Act, 1999 came into operation. By virtue of such amendment, all suits for eviction under the West Bengal Premises Tenancy Act, 1956 which were pending before the City Civil Court at Calcutta stood transferred to the Presidency Small Causes Court at Calcutta. Since the suit property was within the territorial jurisdiction of the learned Chief Judge, Presidency Small Causes Court at Calcutta, the said suit was transferred to the Court of the learned Chief Judge, Presidency Small Causes Court at Calcutta. 2. AFTER such transfer was made, the defendant/petitioner filed an application under Order 7 rule 10 of the Code of Civil Procedure for return of the plaint to the plaintiff for presentation thereof to the appropriate forum for its trial. The defendant contended that since the learned Chief Judge of the Presidency Small Causes Court belongs to the cadre of higher judicial service, the said suit cannot be tried by the learned Chief Judge. Presidency Small Causes Court at Calcutta as a trial Court, in view of the said amendment of the City Civil Court Act of 1999 which provides that the appeal against the ultimate decree which will be passed in such a suit by the learned Chief Judge, Presidency Small Causes Court at Calcutta will lie before the City Civil Court at Calcutta where the judges belong to the same cadre of service to which the Chief Judge, Presidency Small Causes Court, belongs. 3. UNDER such circumstances, the defendant/petitioner raised objection regarding trial of the said suit before the Court where the suit was transferred. 4. THE learned Chief Judge, Presidency Small Causes Court at Calcutta rejected the petitioner's said application by holding that since the said Court has both territorial and pecuniary jurisdiction over the subject matter of the said suit, the petitioner's prayer for return of the plaint cannot be allowed. The defendant/petitioner is aggrieved by the said order. Hence he has come before this Court with this application under Article 227 of the Constitution of India. 5. The defendant/petitioner is aggrieved by the said order. Hence he has come before this Court with this application under Article 227 of the Constitution of India. 5. AFTER hearing Mr. Bagchi, learned advocate appearing on behalf of the petitioner and Mr. Basu learned advocate appearing on behalf of the opposite party, this Court holds that the contention of the petitioner as recorded above has substantial substance as the decree which will be passed by the learned Trial Court where the judge belongs to the cadre of higher judicial service cannot be challenged before an Appellate Court where the judge belongs to the same cadre as that of the Judge of the Trial Court. 6. UNDER such circumstances, this Court holds that the learned Trial Judge, instead of returning the plaint to the plaintiff for presentation of the same before any other bench of the said Court, ought to have transferred the same to any other Bench of the said Court, as the presiding officers of the other benches of the said Court belong to a cadre lower than the cadre in which the Chief Judge, belongs. This Court is, however, informed by Mr. Bagchi that subsequently the said suit was transferred to the 2nd Bench of the Presidency Small Causes Court at Calcutta for its trial. But before commencement of trial before such transferee Court, the records relating to the said suit was again called for by the 'successor-in-chair of the learned Chief Judge, Presidency Small Causes Court at Calcutta who passed the order of transfer, by recalling the said order of transfer. 7. SINCE, in my view, the order of transfer of the suit which was passed by the learned Chief Judge, Presidency Small Causes Court al Calcutta on 31st March, 2010 vide order No.36, may solve the problem which is created in this matter as indicated above, this Court holds that the order of such transfer which was passed by the learned Chief Judge, Presidency Small Causes Court at Calcutta need not be disturbed. 8. ACCORDINGLY, this Court directs the learned Chief Judge, Presidency Small Causes Court at Calcutta to send the records relating to the said suit to the Court of the learned 2nd Judge, Presidency Small Causes Court at Calcutta so that the suit can be tried before the said Court. The impugned order is, thus, set aside. 9. THE revisional application, thus, stands allowed. 10. The impugned order is, thus, set aside. 9. THE revisional application, thus, stands allowed. 10. THE learned Trial Judge is also requested to make an utmost endeavour to dispose of the said suit as early as possible preferably within a period of one year from the date of communication of this order. Let a copy of this order be transmitted to the Court of the learned Chief Judge, Presidency Small Causes Court at Calcutta by special messenger at the cost of the opposite party. Such cost will be put in within a week from date. Revisional application allowed.