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2017 DIGILAW 126 (KAR)

D. Ramakrishnappa v. Munishamappa

2017-01-19

JAYANT PATEL

body2017
ORDER : JAYANT PATEL, J. 1. Rule. 2. Mr. H.M. Somashekaraiah, learned Counsel appearing for respondents 1(a) to 1(d) and Mr. Shivaprabhu Hiremath, learned Additional Government Advocate appearing for respondent no.2 waives notice of rule. 3. With the consent of both the sides, the petition is finally heard. 4. The petition is directed against the order dated 25-4-2016 passed by the Trial Judge whereby the suit is transferred to the Civil Judge, Hoskote Taluk, Hoskote on the point of pecuniary jurisdiction. 5. The short facts of the case appear to be that the respondent No.1 original plaintiff filed the O.S. No. 998 of 1995 in the Court of Principal Senior Civil Judge, Bengaluru claiming the decree for declaration of ownership and permanent injunction in respect of the schedule properties. 6. At the relevant point of time, the jurisdiction was with the Court of Senior Civil Judge and therefore, the suit was filed accordingly before the said Court. However, it appears that the suit remained pending before the very Court. However, on 25-4-2016, when the suit was at the stage of arguments, defendant No.1 brought to the notice of the Court that there is change in the pecuniary jurisdiction and therefore, the learned Judge having found that the jurisdiction of the Civil Judge is enhanced from Rs. 54,000/- to Rs. 5,00,000/-, transferred the suit to the Court of Civil Judge, Hoskote from the Court of Senior Civil Judge by the impugned order. Under the circumstances, the present petition before this Court. 7. I have heard Mr. G. Papi Reddy, learned Counsel for the petitioner, Mr. H.M. Somashekaraiah, learned Counsel appearing for respondents No.1(a) to 1(d) and Mr. Shivaprabhu Hiremath, learned AGA for respondent No. 2. 8. The perusal of the order of the Civil Court shows that it has relied upon the provisions of Section 29(2)(a) of the Karnataka Civil Courts Act, 1964 for the purpose of transfer of the civil suit. However, it appears that the Civil Court has lost sight of Section 5 of the amending Act namely, the Karnataka High Court and Certain Other Laws (Amendment) Act, 2007 which provides for enhancement of the jurisdiction of the Civil Court by bringing about the amendment in Karnataka Civil Courts Act, 1964. Section 5 of the said amending Act reads as under: "5. Section 5 of the said amending Act reads as under: "5. Pending cases not to be affected.-Notwithstanding anything containing in this Act, all suits, appeals or revision and other proceedings connected therewith pending before the High Court, District Court, Court of Civil Judge (Senior Division), Civil Judge (Junior Division) and Small Causes Court. On the date of commencement of this Act shall be continued and disposed of by the respective Courts in which they are pending as if the amendment made under this Act has not been made." 9. The aforesaid shows that, notwithstanding anything contained in the Act on the commencement of the amendment Act, all suits shall be continued and disposed of by the respective Courts in which they are pending as if the amendment made under this Act had not been made. To say in other words, the amendment is to apply with the prospective effect expressly made by the Legislature. It is true that, in normal circumstance there is amendment in the procedural law would apply to all pending matters. But when there is express provision in the amending Act that too with the non obstante clause or rather over-riding effect, such would operate. It is well-settled that when a specific provision is made by the statute to deal with a particular specific contingency, such provision would not operate. The aforesaid is coupled with the circumstance that the specific provision made is with a non obstante clause so as to create a over-riding effect upon any other provisions of the Act which would include the amending aspect. When the Legislature by specific provision made the amendment prospectively, the learned Civil Judge ought not have transferred the suit that too at the stage when the trial was concluded and the matter was at the stage of arguments. Under the circumstances, it can be said that the learned Trial Judge has committed ex facie error which calls for interference in exercise of the power under Article 227 of the Constitution of India. 10. In view of the above, the impugned order dated 25-4-2016 passed by the Trial Court below O.S. No. 998 of 1995 is set aside. Consequently, the suit shall stand retransferred to the Court of Principal Senior Civil Judge, Bengaluru (Rural) for consideration in accordance with law. 11. Petition is allowed to the aforesaid extent. 12. Rule made absolute. 13. 10. In view of the above, the impugned order dated 25-4-2016 passed by the Trial Court below O.S. No. 998 of 1995 is set aside. Consequently, the suit shall stand retransferred to the Court of Principal Senior Civil Judge, Bengaluru (Rural) for consideration in accordance with law. 11. Petition is allowed to the aforesaid extent. 12. Rule made absolute. 13. Considering the facts and circumstances, no order as to costs.