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2014 DIGILAW 1294 (AP)

Muthe Rajesham v. Bakam Lingaiah

2014-10-18

A.RAMALINGESWARA RAO

body2014
ORDER A. Ramalingeswara Rao, J. 1. Heard the learned Counsel for petitioner and the learned Counsel for respondents. This revision is filed against the order in Tr. OP No. 455 of 2013 dated 10.4.2014 passed by the Principal District Judge, Adilabad in the application filed by the respondents. 2. The petitioners herein filed OS No. 108 of 2002 on the file of the Court of the Junior Civil Judge, Luxettipet for grant of perpetual injunction in respect of an extent of Ac. 0-06 1/2 guntas in Survey No. 90 within the boundaries mentioned therein and situated at Theegal Pahad Village. The said suit was later on made over to the Court of the Junior Civil Judge, Mancherial and was renumbered as OS No. 513 of 2005 and it is reserved for judgment by docket order dated 28.2.2014. The suit schedule in the said suit was amended by substituting Survey No. 91 in place of Survey No. 90 pursuant to an order of this Court in CRP No. 3704 of 2011 dated 13.2.2012. 3. The respondents herein filed OS No. 219 of 2013 against the petitioners herein seeking declaration of title and perpetual injunction in respect of Ac. 0-06 1/2 guntas in Survey No. 90 on the basis of alleged cause of action that occurred in the month of October, 2013, when the petitioners interfered with their possession. The petitioners filed their written statement and issues have been framed in the suit, but the trial has not yet been commenced. 4. While so, the respondents filed Tr. OP No. 455 of 2013 seeking transfer of the earlier suit OS No. 513 of 2005 pending on the file of the Court of the Junior Civil Judge, Mancherial to the Court of the Senior Civil Judge, Mancherial. The Principal District Judge, Adilabad allowed the said application of the respondents with the following observations. "13. These three citations relied on by the learned Counsel for the respondents are not similar to the facts of the case on hand. In the first case relied on by the learned Counsel for the petitioners the principles laid down thereunder are that application for transfer of suit from one Court to another is allowed, as both the suits are involved same issues and the parties are common. In the first case relied on by the learned Counsel for the petitioners the principles laid down thereunder are that application for transfer of suit from one Court to another is allowed, as both the suits are involved same issues and the parties are common. The citations relied on by the learned Counsel for the petitioners are similar to the facts of the case on hand and it makes clear that in the interest of justice and in order to avoid the proceedings and in order to drag on the matter, the Suit No. 513/2005, which is pending on the file of Junior Civil Judge's Court at Mancherial is transferred to the Court of the Senior Civil Judge's Court, Mancherial, as the subject-matter involved in these two suits is one and the same. The facts of the case on hand are not disputed by the learned Counsel for the respondents. It is an admitted fact that the respondents filed a suit in the Court of Principal Junior Civil Judge's Court at Mancherial for perpetual injunction and the petitioners herein have filed a suit in the Court of Senior Civil Judge's Court, Mancherial for declaration of title over the suit schedule property very recently. No doubt, there is a delay on the part of the petitioners herein for filing the suit and also in approaching this Court seeking transfer of the suit. In fact the property involved in both the suits is one and the same and its parties are also same. Whether the property is located in Sy. No. 90 or in Sy. No. 91 has to be decided at the time of disposal of the suit itself and since both the suits are being comprehensive in nature but not single suit for perpetual injunction, therefore, the request of the petitioners has to be accepted." 5. Now the point that arises for consideration is the scope of Section 24 of the Civil Procedure Code, 1908 (for short, the Code), and the grounds that have to be considered while ordering transfer of suits. Section 24 of the Code reads as follows: "24. Now the point that arises for consideration is the scope of Section 24 of the Civil Procedure Code, 1908 (for short, the Code), and the grounds that have to be considered while ordering transfer of suits. Section 24 of the Code reads as follows: "24. General power of transfer and withdrawal.--(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-- (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which l[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of any order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. [(3) For the purposes of this section,-- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) "proceeding" includes a proceeding for the execution of a decree or order.] (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. [(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]" 6. The Hon'ble Supreme Court in Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust, 2008 (2) ALD 112 (SC) : AIR 2008 SC 1333 , held as follows: "7. [(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]" 6. The Hon'ble Supreme Court in Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust, 2008 (2) ALD 112 (SC) : AIR 2008 SC 1333 , held as follows: "7. 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." While coming to the said conclusion, the Hon'ble Supreme Court considered the decision in Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 2 SCR 378 and Subramaniam Swamy v. Ramakrishna Hegde, (1990) 1 SCC 4 . 7. 7. In the present case, the application for transfer was filed on the ground that the suit land in OS No. 513 of 2005 and the suit land in OS No. 219 of 2013 is one and the same and when the dispute is with regard to the title and since a comprehensive suit for declaration is filed, in order to avoid conflicting decisions, the transfer is necessary. 8. The learned Counsel for the petitioners submits that the Principal District Judge erred in holding that the property involved in both the suits is one and the same and he also submits that when the earlier suit was reserved for judgment, and at that stage, the Principal District Judge ought not to have transferred the said suit to the Court where the later suit was filed where the trial has not yet commenced. He also submits that the lands claimed in both the suits are different and there is no justification in passing the impugned order. He relied on decisions in M. Ramakrishna Sastry v. M. Seetaramaswamy, 1995 (3) ALD 6 and Surapuneni Rani v. Surapuneni Latha, 2004 (4) ALD 631 , in support of his contention that when the reliefs are different and causes of action are different, the earliest suit should not be transferred. He also submits that in the absence of specific boundaries and the documents on which reliance was placed by the respondents in their suit for declaration of title, prima facie, the plaintiffs are not entitled for the relief. He relied on Kasinath Patel v. Radha Bai, 2005 (4) ALD 859 and Megh Raj v. Subhash Rani, 2012 (4) CCC 99 (P&H). He further submits that the amendment made to the survey number in the suit schedule property in OS No. 513 of 2005 relates back to the date of institution of the suit and relied on a decision in M. Dharma Rao v. Kishan Chand (deceased) by LRs., 1967 (1) An.W.R. 241. 9. On the other hand, the learned Counsel for the respondents submits that an application for transfer can be made at any stage of the suit. 10. 9. On the other hand, the learned Counsel for the respondents submits that an application for transfer can be made at any stage of the suit. 10. The above events disclose that the petitioners filed the suit for perpetual injunction at the earliest point of time in respect of a specific property in Survey No. 90, which was later on amended as Survey No. 91, by an order of this Court in CRP No. 3704 of 2011 dated 13.2.2012. After completion of the evidence in the said suit, the respondents filed OS No. 219 of 2013 for declaration of title in respect of the same extent, but located in Survey No. 90. Hence, it cannot be said that the suit schedule property in both the suits is identical. In the absence of such prima facie identity, it cannot be held that both the suits should be tried together and identity of the property can be decided at the time of disposal of the suits. The title of the property in a suit for injunction should be decided for a limited purpose of consideration of granting decree, whereas the title in a suit for declaration should be decided finally based on evidence. So, the reliefs in both the suits cannot be held to be identical. The suit filed by the petitioners is reserved for judgment and if a decree is passed in favour of one party, it cannot affect the decree that is going to be passed in a suit for declaration of title. 11. Thus, any observation with regard to the title in a suit for injunction can be subject to the final finding recorded in the suit for declaration of title. In view of this, the Principal District Judge erred in ordering to transfer OS No. 513 of 2005 to be tried along with OS No. 219 of 2013. Accordingly, the order dated 10.4.2014 passed in Tr. OP No. 455 of 2013, is set aside and both the suits shall be tried independently and can be disposed of by respective Courts where they are pending. The civil revision petition is, accordingly, allowed. No costs. Miscellaneous petitions pending, if any in this civil revision petition, shall stand closed. Petition allowed