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2016 DIGILAW 317 (CAL)

SUDARSHANA DAS (HAZRA) v. REKHA SHAW

2016-04-04

ASHIS KUMAR CHAKRABORTY

body2016
JUDGMENT : Ashis Kumar Chakraborty, J. In this application under Section 24 of the Code of Civil Procedure, 1908, hereinafter called as "the Code", the petitioner has prayed for transfer of the application filed by her under Order 9, Rule 9 of the Code pending before the Court of the learned Civil Judge (Junior Division), Additional Court at Krishnagar, Nadia to the Court of the learned Civil Judge (Junior Division), Berhampore at Murshidabad. 2. The facts of the case giving rise to this revisional application lay in a very narrow compass and they may be briefly set out as follows. 3. One Krishna Ranjan Das, since deceased, filed the suit for declaration an injunction, being Title Suit No. 17 of 2010, against the opposite parties before the Court of the learned Civil Judge, (Junior Division), 1st Court at Krishnagar, Nadia which was subsequently transferred to the Court of the learned Civil Judge (Junior Division), Additional Court, Krishnagar, Nadia and renumbered as Title Suit No. 18 of 2011 (hereinafter referred as "the said suit"). The suit property is situate at Krishnagar, P.S. Kotwali, District- Nadia. However, the original plaintiff, a resident of Krishnagar, alleged that he was unable to effectively proceed with the said suit as the opposite parties, being the defendants in the said suit, threatened him and he was compelled to leave Krishnagar and started to reside at Katwa with the petitioner. During the pendency of the said suit, the original plaintiff died and the petitioner was substituted as the sole plaintiff in the said suit. Even, the petitioner was also threatened by the opposite parties and the petitioner, being a lady faced difficulty in proceeding with the said suit before the learned Court at Krishnagar. The petitioner filed an application being, C.O. No. 1027 of 2013, before this Court, under Section 24 of the Code praying for, transfer of the said suit from the Court of the learned Civil Judge (Junior Division), Additional Court at Krishnagar, Nadia to the competent Court at Berhampore. By a reasoned order dated March 25, 2013 this Court allowed the said application of the petitioner. By a reasoned order dated March 25, 2013 this Court allowed the said application of the petitioner. The said suit was withdrawn from the Court of the learned Civil Judge, (Junior Division), Additional Court at Krishnagar and the records of the said suit were directed to be transferred to the Court of the learned District Judge, Murshidabad who would assign the said suit to any competent Court at Berhampore. In terms of the said order dated March 25, 2013 the said suit was transferred to the Court of the learned Civil Judge (Junior Division), Additional Court at Berhampore and the same was registered in Title Suit No. 13 of 2013. Subsequently, however, it transpired that the said suit, while pending before the Court of the learned Civil Judge (Junior Division), Additional Court at Krishnagar, Nadia, was dismissed for default on March 21, 2013 and, therefore, the petitioner filed an application under Order 9, Rule 9 of the Code, registered as Misc. Case No. 21 of 2013 before the Court of the learned Civil Judge (Junior Division), Additional Court at Berhampore. Since, the said suit stood already dismissed before passing of the said order dated March 25, 2013 by this Court, the opposite parties filed an application for recalling of the said order dated March 25, 2013. By the order dated October 31, 2014 this Court recalled the said order dated March 25, 2013 and the records of the said suit has since been re-transferred to the Court of the learned Civil Judge (Junior Division) , Additional Court, Krishnagar, Nadia. 4. In the background of the above facts, the petitioner having reiterated the aforementioned grounds of transfer urged by her in the previous application, being C.O. No. 1027 of 2013 has filed the present application praying for the relief already mentioned above. 5. At the very outset, Mr. Gupta, the learned advocate appearing for the opposite parties raised serious objection to the maintainability of the present application under Section 24 of the Code. According to him, an application under Order 9, Rule 9 of the Code cannot be transferred, under Section 24 of the Code, from the one Court. 5. At the very outset, Mr. Gupta, the learned advocate appearing for the opposite parties raised serious objection to the maintainability of the present application under Section 24 of the Code. According to him, an application under Order 9, Rule 9 of the Code cannot be transferred, under Section 24 of the Code, from the one Court. Thus, the moot question which falls for consideration before this Court in the present case, is whether an application under Order 9, Rule 9 of the Code praying for restoration of a suit dismissed for default by a Court can be transferred, under Section 24 of the Code, to another Court. 6. Mr. Roy, learned advocate appearing for the petitioner submitted that the words " other proceeding" appearing in clauses (a) and (b) of sub-Section (1) of Section 24 are wide enough to include an application under Order 9, Rule 9 of the Code. In support of his contention, Mr. Roy relied on the decision of the Supreme Court in the case of Ram Chandra Aggarwal and Anr. v. State of U.P. and Anr. reported in AIR 1966 SC 1888 , where it was held that the words "proceeding" used in Section 24(1)(b) of the Code has a comprehensive meaning, so as to include within it all matters coming up for judicial adjudication and not to confine it to a civil proceeding alone. He further relied on the decision of the Patna High Court in the case of Dasrath Prasad Singh v. Baijnath Prasad Singh, reported in AIR 1960 Pat 285 where, N.L. Untwalia, J. (as His Lordship then was) held that the words "proceeding" appearing in Section 24(1)(b) includes an execution application. However, Mr. Gupta appearing for the opposite party, did not cite any authority in support of his contention that an application under Order 9, Rule 9 of the Code cannot be transferred, under Section 24 of the Code, to another Court. 7. With regard to the question whether the expression "proceeding" appearing in Section 24 of the code includes an application under Order 9, Rule 3 of the Code, it would be profitable to refer to the decision of the Supreme Court in the case of Ram Chandra Aggarwal (supra) relied on by the applicant. 7. With regard to the question whether the expression "proceeding" appearing in Section 24 of the code includes an application under Order 9, Rule 3 of the Code, it would be profitable to refer to the decision of the Supreme Court in the case of Ram Chandra Aggarwal (supra) relied on by the applicant. In the said decision the Supreme Court held that from the expression "proceeding" used in Section 24 of the Code, it would appear to be something going on in a Court, in relation to an adjudication of a dispute other than a suit or appeal and the said word includes within it, all matters coming up for judicial adjudication, not only civil proceeding alone. Thus, I find force in the submission advanced on behalf of the petitioner that the expression "proceeding" appearing in Section 24 (1)(b), applicable in this case, is the comprehensive expression to include an application under Order 9, Rule 9 of the Code. In this regard, I am also in respectful agreement with the sound reasoning of the Patna High Court decision in the case of Dasrath Prasad Singh (supra), relied on behalf of the petitioner, that an application for execution of a decree can also be transferred from one Court, under Section 24 of the Code, to another Court. For all these reasons, I cannot but hold that the present application of the petitioner for transfer of the application under Order 9, Rule 9 of the Code from the Court of the learned Civil Judge (Junior Division), Additional Court at Krishnagar, Nadia is maintainable. 8. So far as the merit of the present application, as submitted by Mr. Roy on behalf of the petitioner that the grounds of transfer urged by the petitioner, as already discussed above, are the same as those were urged by her in the earlier application, being C.O. No. 1027 of 2013 which was allowed by this Court on March 25, 2013. He further submitted that the opposite parties accepted the said order dated March 25, 2013, transferring the said suit from the Court of the learned Civil Judge (Junior Division), Additional Court at Krishnagar, Nadia to the Court of the learned Civil Judge (Junior Division), Berhampore at Murshidabad. Thus, according Mr. Roy, the opposite parties cannot object to the grounds of transfer urged in the present application. However, Mr. Thus, according Mr. Roy, the opposite parties cannot object to the grounds of transfer urged in the present application. However, Mr. Gupta appearing for the opposite parties submitted that the opposite party nos. 1 and 3 are residing at Dum Dum, Kolkata, while the opposite party nos. 2 and 4 are residing at Krishnagar and the opposite parties will face inconvenience to contest the said application under Order 9, Rule 9 of the Code filed by the petitioner, if the same is transferred to any Court at Berhampore and as such this Court should reject the application of the petitioner. 9. In reply, Mr. Roy appearing for the petitioner first submitted that the learned advocate representing the opposite parties has not disputed the ground of transfer urged by the petitioner for the safety of her person. He next submitted that it would hardly take two hours for the opposite party nos. 2 and 4, to travel from Krishnagar to Berhampore and when the opposite party nos. 1 and 3 residing at Dum Dum have no difficulty to travel to Krishnagar to contest the said suit, they will face no difficulty to travel more or less the same distance from Dum Dum to Berhampore. He also submitted that it would take more than two hours for the petitioner to travel from her residence Katwa to Berhampore. But, even then the petitioner is willing to travel such distance for the safety of her person and the property. 10. I have considered the averments made by the parties in their respective pleadings, as also the rival contentions of both Mr. Roy and Mr. Gupta appearing for the respective parties. In this application, the grounds urged by the petitioner for transfer of the said application under Order 9, Rule 9 of the Code from the Court of the learned Civil Judge (Junior Division), Additional Court at Krishnagar, Nadia, are that in order to proceed with the said application, she has to travel all alone from her residence at Katwa to Krishnagar and while she visited the town of Krishnagar to proceed with the said suit, the opposite parties threatened her. On the same grounds, the petitioner moved the earlier transfer application being C.O. No. 1027 of 2013 and by the said order dated March 25, 2013, this Court transferred the suit from the Court of the learned Civil Judge (Junior Division), Additional Court, Krishnagar, Nadia to the Court of the competent Court at Berhampore. Thus, when the grounds of transfer urged by the petitioner in the earlier transfer application being C.O. No. 1027 of 2013, as also those urged in the present application are same, the present application should also be allowed. 11. Further, when the opposite party nos. 1 and 3 had no difficulty no contest the said suit before the learned Civil Judge (Junior Division), Additional Court, Krishnagar, Nadia, I am unable to accept their case that they will face any inconvenience to reach Berhampore, by train. In the present case, when the petitioner has substantiated her apprehension that if she is required to proceed with her application under IX Rule 9 of the Code and the said suit before the learned Court at Krishnagar, Nadia her personal safety and security shall be at stake, the balance of convenience wholly lies in her favour for transfer of the said application and the said suit to any Court outside the district of Nadia. 12. For the foregoing reasons, the application filed by the petitioner under Order 9, Rule 9 of the Code is withdrawn from the Court of the learned Civil Judge (Junior Division), Additional Court, Krishnagar, Nadia and the same are transferred to the Court of the learned Civil Judge (Junior Division), at Berhampore, Murshidabad. 13. The learned District Judge, Nadia is directed to forthwith transmit all the records of Misc. Case No. 21 of 2013, together with the records of the Title Suit No. 18 of 2011 to the Court of the learned District Judge, Murshidabad, by Special Messenger at the cost of the petitioner, who shall in turn transmit the same to the Court of the learned Civil Judge (Junior Division), Berhampore, Murshidabad. The petitioner shall deposit the Special Messenger's cost in the concerned department of the Court of the learned District Judge, Nadia, within ten days from the date of receipt of this judgment. 14. The petitioner shall deposit the Special Messenger's cost in the concerned department of the Court of the learned District Judge, Nadia, within ten days from the date of receipt of this judgment. 14. The learned Civil Judge (Junior Division), Berhampore, Murshidabad is requested to dispose of the application under Order 9, Rule 9 of the code filed by the petitioner as expeditiously as possible, preferably within one month from the date of receipt of the records of Misc. Case No. 21 of 2013. 15. In the event, the application of the petitioner being Misc. Case No. 21 of 2013 is allowed by the transferee Court, the suit being Title Suit No. 18 of 2011 shall also be deemed to have been withdrawn from the Court of the learned Civil Judge (Junior Division), Additional Court, Krishnagar, Nadia and transferred to the Court learned Civil Judge (Junior Division) at Berhampore, Murshidabad. 16. With the above directions C.O. No. 1070 of 2015 stands disposed of. 17. However, there shall be no order as to costs. 18. Urgent certified server copy of this judgement, if applied for, be supplied to the parties subject to compliance with all requisite formalities.