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2017 DIGILAW 3478 (MAD)

Vanja v. V. Suresh Kumar

2017-10-31

S.BASKARAN

body2017
ORDER : The petitioners, who are the first and seventh defendants in O.S.No.1 of 2013 and defendants 2 and 8 in O.S.No.393 of 2016 have come forward with this petition seeking transfer of O.S.No.393 of 2016, pending on the file of the Principal District Munsif, Madurai Town to the file of the IV Additional District Judge, Madurai to be tried along with the suit in O.S.No.1 of 2013, pending therein. 2. O.S.No.1 of 2013, pending on the file of the IV Additional District Court, Madurai is filed by second respondent herein/plaintiff against the petitioners and five other persons, seeking specific performance and other consequential reliefs. The other suit in O.S. No. 393 of 2016, pending on the file of the Principal District Munsif, Madurai is filed by the first respondent/plaintiff herein against the petitioner and 6 other persons, seeking relief of permanent injunction, not to evict the plaintiff in the suit, except by due process of law and other reliefs. 3. The petitioners contend that there is no privity of contract between themselves and the first respondent, who is only a trespasser in the suit property. The petitioner further contends that the second respondent/plaintiff has lost his right to purchase the suit property as he failed to perform his part of sale agreement, dated 22.07.2014 within the stipulated time. The petitioners further state that to complicate the petitioners' right to recover possession from their tenants, the second respondent instigated his friend/first respondent to file O.S.No.393 of 2016 and as such, it is necessary to have both the suits tried by one and the same court, as otherwise, prejudice will be caused to the petitioners herein. Hence, the petitioners seek transfer of O.S.No.393 of 2016 from the file of the Principal District Munsif, Madurai Town to the IV Additional District Judge, Madurai to be tried along with O.S.No.1 of 2013, pending therein. Hence, the petition. 4. Hence, the petitioners seek transfer of O.S.No.393 of 2016 from the file of the Principal District Munsif, Madurai Town to the IV Additional District Judge, Madurai to be tried along with O.S.No.1 of 2013, pending therein. Hence, the petition. 4. On the other hand, opposing the petition, the learned counsel for the respondents contended without filing counter that the transfer civil miscellaneous petition itself is not maintainable, in view of ruling of this court, reported in 2016 (6) CTC 703 , (Reshma Begum and two others V. Syed Nawab Jan and two others), wherein, it is held that if any suit or petition is sought to be transferred from one Court to another court within the jurisdiction of same district, the transfer Original Petition has to be filed only before the concerned Principal District Court and it is not proper for the party to approach the High Court, at the first instance itself. The learned counsel for the respondents further contended that all Additional and Assistant courts are subordinate to the Principal District Court, for the purpose stated under Section 24 of C.P.C and as such, in view of the above said ruling, this petition ought not to have been numbered and hence, seeks for dismissal of the same. In the above said ruling, it is held as follows: “16. At present, the litigants are directly approaching the High Court, by filing Transfer Applications to transfer the cases from one Subordinate Court to another Subordinate Court coming with the Administrative jurisdiction of the same Appellate Court namely, the District Court. If such petitions are entertained in a routine manner, this Court is of the view that the power vested with the District Court under Section 24 of the Code of Civil Procedure is taken away and that cannot be the intention of the Legislation under Section 24 of the Code of Civil Procedure. The original jurisdiction of the District Court conferred under Section 24 cannot be usurped in a routine manner so as to defeat the real object and the spirit of Section 24 of the Code of Civil Procedure. The original jurisdiction of the District Court conferred under Section 24 cannot be usurped in a routine manner so as to defeat the real object and the spirit of Section 24 of the Code of Civil Procedure. Therefore, the litigants are not permitted to choose the forum as per their like and dislikes which will create ambiguity and the circumstance will arise that one litigant will file a Transfer Petition before the District Court and his opponent may file another Transfer Petition before the High Court in order to create inconsistency and such a situation needs to be averted. The jurisdiction of the Courts for filing Transfer Applications should be definite and clear. By vague and shallow interpretation, the litigants should not be allowed to choose the forum at their choice. If any application for transfer is to be filed, the same is to be filed within the same administrative jurisdiction of the District Court concerned and if it falls within the jurisdiction of the different District Courts, then the petition for transfer shall be filed before the High Court. Such an interpretation will have a constructive meaning and will serve the purpose to have a definite jurisdiction in respect of filing of the applications for transfer under Section 24 of the Code of Civil Procedure.” 5. However, the learned counsel for the petitioners, refuting the contentions of the learned counsel for the respondents, pointed out that under Section 24 of C.P.C, concurrent jurisdiction is given to this Court as well as the District Court and as such, the petitioners are entitled to move this Court for the relief sought for by them. At this juncture, it will be appropriate to extract Section 24 of C.P.C and the same is extracted hereunder: “24. At this juncture, it will be appropriate to extract Section 24 of C.P.C and the same is extracted hereunder: “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 desire 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 proceedings pending before it for trial or disposal to any Court subordinate to it and competent to try to dispose of the same, or (b) withdraw any suit, Appeal or other proceeding pending in any Court subordinate to it, and (i) try to 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 is thereafter to try to 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 purpose 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. A plain reading of the above section will clearly show that this Court as well as the District Court has been given concurrent jurisdiction under Section 24 of C.P.C and further as per sub-clause 3 of Section 24 of C.P.C, the Additional and Assistant Judges are subordinate to District Court for the purpose of this section. A plain reading of the above section will clearly show that this Court as well as the District Court has been given concurrent jurisdiction under Section 24 of C.P.C and further as per sub-clause 3 of Section 24 of C.P.C, the Additional and Assistant Judges are subordinate to District Court for the purpose of this section. In such circumstances, when the statute confers concurrent jurisdiction on this Court as well as the District Court, in my considered view the conclusion arrived at by another Bench of this Court, reported in 2016 (6) CTC 703 , (Reshma Begum and two others V. Syed Nawab Jan and two others), is not in accordance with the spirit of Section 24 of C.P.C and I am unable to agree with the same. Further, this Court is of the view that the contention if the litigants are allowed directly to approach the High Court by filing transfer applications, the same will usurp and take away the power vested with the District Court under Section 24 of C.P.C is unsustainable. Further, the contention of the respondent, relying upon the above said ruling that if litigants are permitted to choose the forum according to their wish, it will create inconsistency is also unacceptable. As stated earlier, there is no prohibition under the statute for approaching either the High Court or the District Court and in view of the provisions under Section 24 C.P.C, I am of the view that the legislature has consciously given concurrent jurisdiction to both the High Court as well District Court. Since a contrary view has already been taken by another Bench of this Court and in the background of above said discussion, this Court is of the view that it will be appropriate to refer the issue as to whether under Section 24 of C.P.C, the High Court and the District Court have concurrent jurisdiction and whether the petitions under Section 24 of C.P.C can be filed in either of the Court, even if the Transfer is sought for from one Court to another court situated within the Administrative Jurisdiction of same District Court, to a Larger Bench, so that finality can be arrived at. The point is answered accordingly. 7. The point is answered accordingly. 7. In the result, the Registry is directed to place the matter before My Lord the Honourable Chief Justice for appropriate orders to place the matter before the Larger Bench to give a finding on the issue “whether under Section 24 of C.P.C, the High Court and the District Court have concurrent jurisdiction and whether the petitions under Section 24 of C.P.C can be filed in either of the Court, even if the Transfer is sought for from one Court to another court situated within the Administrative Jurisdiction of same District Court”.