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2016 DIGILAW 47 (KER)

Dhanu Joby v. Joby Cheriyan

2016-01-14

SUNIL THOMAS, T.B.RADHAKRISHNAN

body2016
ORDER : 1. This matter is placed before the Division Bench on a reference by a learned single Judge, doubting the correctness of the decision reported as Preeti Yohannan vs. Abraham K. Mathen, 2012 (3) KLT 111 and posing the question as to whether the provisions of the Civil Rules of Practice should govern proceedings before this Court. The learned Judge has also raised an issue as to whether any fetter can be imposed on the powers of the High Court, while exercising its supervisory jurisdiction under Article 227 of the Constitution of India. The transfer petition was filed by the wife of the first respondent. Matrimonial disputes between them had led to the institution of five different proceedings before the Family Courts of Ernakulam and Kottarakkara, raising allegations and counter allegations. A single transfer petition was filed by the wife before this Court invoking S. 24 of the Code of Civil Procedure, for short, CPC, requesting for transfer of two cases pending before the Family Court, Ernakulam to the Family Court, Kottarakkara, to facilitate joint trial of all the cases. Registry raised an objection that separate application shall be filed in each proceeding on which transfer was sought in view of Rule 57(3) of the Civil Rules of Practice and relying on Preeti Yohannan (supra) which held so. Hence, the matter was placed before the learned single Judge, who took the view that the decision in Preeti Yohannan (supra) requires reconsideration and that the Civil Rules of Practice may not be applicable to the proceedings before this Court, in so far as the Rules of the High Court of Kerala, 1971, 'High Court Rules', for short, do not contemplate such a situation. The learned single Judge formulated the question as to whether it is justifiable to hold that separate petitions for transfer of more than one petition pending before Family Court should be filed in terms of R. 57 of Civil Rules of Practice and that a single petition cannot be entertained. Ancillary question posed in the Reference Order is whether this Court would be justified in following the corresponding Rules in the Civil Rules of Practice in the absence of any provision to that effect in the High Court Rules. Ancillary question posed in the Reference Order is whether this Court would be justified in following the corresponding Rules in the Civil Rules of Practice in the absence of any provision to that effect in the High Court Rules. Another question raised is whether any fetter by way of rules of procedure could be imposed on the power of High Court while exercising its supervisory jurisdiction under Article 227 of the Constitution of India. 2. Shri P.B. Krishnan, learned counsel for the petitioner canvassed the position that the ratio of Preeti Yohannan needs reconsideration as it puts fetters on the power of the High Court by holding that Civil Rules of Practice would govern the supervisory jurisdiction of the High Court; and that, the said proposition cannot be accepted. Preeti Yohannan was decided holding that in the absence of any specific provision in the High Court Rules regarding the procedure to be followed in cases of transfer of proceedings, Civil Rules of Practice, which govern the proceedings of the civil courts would govern the field. The reasoning was that since the power of transfer under S. 24 of C.P.C. was exercised not only by the District Court, but also by the High Court, it would be anomalous to permit a consolidated petition to be moved in the High Court, when separate petitions are insisted in the District Court. 3. The preamble to the Civil Rules of Practice unambiguously indicates that it is intended to regulate the procedure and practice in the subordinate civil courts. There cannot be any doubt that the Civil Rules of Practice is applicable only to the subordinate civil courts and not to the High Court, which, regarding its procedure and practice, is governed by the Kerala High Court Act and Rules. 4. To consider the scope and ambit of R. 57 in the Civil Rules of Practice, it would be profitable to quote that, which is as follows: "57. Application for transfer--(1) An application for the transfer of a suit, appeal or other proceeding from one Court to another shall be made by Original Petition entitled in the matter of the pending suit, appeal or other proceedings as in Form No. 18. Notice of the application as in Form No. 19 shall be issued and served on the other parties to the suit or other proceeding. Notice of the application as in Form No. 19 shall be issued and served on the other parties to the suit or other proceeding. (2) The application shall be supported by an affidavit stating the respective residences of the several parties to the suit, appeal or other proceeding, the places in which the several portions of the subject matter of the suit, etc. are respectively situate and the several jurisdictions within which the said residences and the places are respectively situate, and any other facts on which the application is based. (3) A separate application shall be presented in respect of each suit, appeal or other proceedings of which transfer is sought." 5. In Preeti Yohannan's case, it was correctly held that the wording of R. 57(3) was clear, categoric and unambiguous that when more than one proceedings are sought to be transferred, separate application shall be filed in respect of each of such proceeding. It cannot be said that the above sub-rule was incorporated without any purpose. Transfer may be sought by the parties on various grounds. It may be on the ground of convenience of parties; on an allegation of prejudice of the judicial officer; to facilitate trial along with the other pending matters; and/geographical or logistic reasons. However, it may happen that in some cases sought to be transferred, the parties; the reliefs sought for; the causes of action; and, the subject matter in each suit or proceeding may be different, though common questions of fact or law may arise in all the case. There may be cases wherein one case may be sought to be transferred from one particular court to another specified court; or, in exceptional cases, party may seek alternative prayer of transfer to either of the courts or to any other Court at the discretion of the court. In such a complex situation, to enable the Court to pass specific orders with clarity and precision, separate applications are essential. Further, each such application shall clearly show the status of the respective parties in each proceeding sought to be transferred. This appears to be the rationale behind the procedural safeguard under R. 57(3). 6. In such a complex situation, to enable the Court to pass specific orders with clarity and precision, separate applications are essential. Further, each such application shall clearly show the status of the respective parties in each proceeding sought to be transferred. This appears to be the rationale behind the procedural safeguard under R. 57(3). 6. However, if R. 57(3) is understood as necessitating the filing of separate transfer petitions in relation to each case sought to be transferred, practically it may lead to certain unforeseen situations, which the drafters of the Civil Rules of Practice, would not even have visualized or intended. The transferring Court; that is to say, the court before which the application for transfer is filed would be excluded from having comprehensive look at the varied facets of the litigation/litigations sought to be transferred. That would deprive that higher court from having a cohesive assimilation of the contents of the different litigations which are sought to be transferred; may be, even for consolidation. If separate Original Petitions are to be filed with respect to each case sought to be transferred, it will necessitate payment of separate court fee and process fee for each petition imposing more financial burden on the parties, and would result in multiplicity of proceedings, making the procedure cumbersome and would only inflate the statistics of the pendency of cases. 7. This calls for consideration as to whether sub-rule (3) postulates filing of separate original transfer petitions. It is pertinent to note that R. 57(1) provides that an application for the transfer of a suit, appeal or other proceeding from one court to another shall be made by "Original Petition" entitled in the matter of the pending suit, appeal or the proceedings as in Form No. 18. R. 57(3) provides that a separate "application" shall be presented in respect of each suit, appeal or other proceedings of which transfer is sought. If the term "application" found in R. 57(3) is interpreted as synonymous with the term "application" found in R. 57(1), it would mean that separate Original Petitions will have to be filed in respect of each of such suit appeal or other proceeding sought to be transferred. If the term "application" found in R. 57(3) is interpreted as synonymous with the term "application" found in R. 57(1), it would mean that separate Original Petitions will have to be filed in respect of each of such suit appeal or other proceeding sought to be transferred. It is pertinent to note that while R. 57(1) uses the term, "Original Petition", sub-rule (3) of R. 57 provides that separate "application" shall be presented in respect of each suit, appeal or other proceedings and not separate "Original Petitions." This Calls for a purposive and harmonious interpretation of those two sub-rules. 8. We proceed to examine the definition clauses of Civil Rules of Practice. R. 5(2) defines the word "application" as to include cheque application, execution application, execution petition and interlocutory application whether written or oral. "Interlocutory application" is defined in R. 5(9). It means an application to the court in any suit, appeal or proceeding already instituted in such court other than a proceeding for execution of a decree or order. R. 5(10) defines "Original Petition", as a petition whereby any proceeding other than a suit or appeal or a proceeding in execution of a decree or order is instituted in a court. It is pertinent to note that while R. 57(1) provides that an application for transfer shall be made by an Original Petition in Form 18, sub-rule (3) of R. 57 does not insist that separate "Original Petition" shall be filed. It only provides that separate "application" shall be filed in respect of each suit or other proceedings sought to be transferred. Hence, the term "application" in R. 57(3) only means an application which is not an "Original Petition" as enjoined by R. 57(1). This interpretation of the procedural provisions in Civil Rules of Practice would exclude the complexities that may work out injustice to the parties; which result would never have been intended by the drafters of the Civil Rules of Practice. In other words, separate application indicated in R. 57(3) can only mean an interlocutory application in an Original Petition to be filed under R. 57(1), as regards any incidental matter inter parties, pending and eligible to be consolidated. In other words, separate application indicated in R. 57(3) can only mean an interlocutory application in an Original Petition to be filed under R. 57(1), as regards any incidental matter inter parties, pending and eligible to be consolidated. Hence, with respect to a transfer sought by a party, one Original Petition would suffice and interlocutory applications may be filed in that Original Petition, in respect of each of the other suit, appeal or other proceedings of which also transfer is sought for, but not mentioned in the Original Petition. This will advance the object of R. 57. This statement of law is as regards all applications for transfer under S. 24 of CPC, either before the High Court, District Court, or any court competent to order transfer of case. 9. One practical difficulty that may arise is that the parties to all the suits, appeals or other proceedings sought to be transferred may not be common. Hence, while arraying the parties in the Original Petition, the names of parties to proceedings other than those sought to be transferred through the Original Petition may not be carried forward in the Original Petition. This can be got over by making all the parties to the suits, appeals or other proceedings sought to be transferred as common respondents in the Original Petition. This will facilitate proper service of notice of original transfer petition on all the parties. 10. The ratio in Preeti Yohannan (supra), in so far as it relates to interpretation of R. 57(3) of the Civil Rules of Practice is only to be confirmed, with the above clarification as to its application to the subordinate courts. 11. The next crucial question that arises for decision is whether in the absence of any specific provision in the High Court Rules governing the transfer petition, Civil Rules of Practice would be applicable to the High Court. Evidently; the High Court, being a court of record and exercising powers in terms of Constitution of India, including the power of superintendence under Article 227 of the Constitution of India also, is guided by the High Court Rules. Civil Rules of Practice, being the rules governing the procedure and practice in the subordinate courts, are not applicable to the High Court. Civil Rules of Practice, being the rules governing the procedure and practice in the subordinate courts, are not applicable to the High Court. In Preeti Yohannan, after noting that there was no corresponding provision in relation to the transfer of cases in the High Court Rules, the learned single Judge took the view that cue can be taken from Civil Rules of Practice. 12. In the High Court Rules, there is no specific provision relating to transfer petitions, while the provisions of the Civil Rules of Practice regulate transfer petitions before the subordinate civil courts. In the High Court, in the absence of any specified procedural modality, the parties are left unguided. This is because of lack of procedural rules in that regard. The contention that all procedures should be deemed to have been permitted unless prohibited in the High Court Rules was, justifiably, negatived in Preeti Yohannan's case. 13. Even in the matter of institution of proceedings seeking exercise of supervisory powers under Article 227 or exercise of extra-ordinary writ jurisdiction under Article 226 of the Constitution of India, High Court Rules regulate institution of all such proceedings. Rules of procedure are intended to guide, regulate and streamline the process of dispensation of justice, which guarantees uniformity in action and an assurance to the litigants, of being treated alike. We reiterate that procedural rules cannot put fetter on the substantive power of the High Court in terms of the provisions of the Constitution of India. On the contrary, unregulated exercises in matters relating to institution of proceedings in the field of dispensation of justice are neither advisable nor justifiable. If permitted, that would be an unintended floodgate to litigations in defeasance of the Constitution of India and the Laws. Even on the face of the absence of any specific provision in the High Court Rules regulating applications of transfer of case, an appropriate procedure has to be followed by the High Court to regulate such matters. It is always advisable that the courts function uniformly within a procedural framework for judicial expediency and in the interest of consistency, certainty and uniformity. Procedural rules shall not and should not in any manner, restrict, limit or interfere with the exercise of the statutory and constitutional powers exercised by Courts within the Constitutional frame work and Rules of Procedure. (Ref : John Varghese vs. K.S.R.T.C. 2009 (4) KLT 671 at para 2). Procedural rules shall not and should not in any manner, restrict, limit or interfere with the exercise of the statutory and constitutional powers exercised by Courts within the Constitutional frame work and Rules of Procedure. (Ref : John Varghese vs. K.S.R.T.C. 2009 (4) KLT 671 at para 2). We have referred to the corresponding provision in the Civil Rules of Practice which provides a fair procedure to be followed by the litigants. In the absence of a corresponding rule in the High Court Rules, adoption of such an appropriate and fair rule of procedure through judicial process will only be supplementary; and not in derogation or in transgression of the rule making authority of the High Court in terms of S. 122 of the Code of Civil Procedure and other enabling provisions. Hence, there is no embargo in adopting the corresponding procedure under the Civil Rules of Practice, as clarified above, as regards institution of proceedings for transfer of cases in the High Court, rather than it being left to individual litigants, unregulated. The reference is answered accordingly. Place the matter before the learned Single Judge as per roster for appropriate further orders in accordance with law.