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2018 DIGILAW 567 (CAL)

Tapan Pal v. Bapi Dhara @ Ashim Dhara

2018-08-14

ABHIJIT GANGOPADHYAY, SANJIB BANERJEE

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JUDGMENT : The appeal is clearly not maintainable as it arises out of the rejection of an application under Clause 13 of the Letters Patent. 2. The objection is taken by the respondents on the strength of a judgment reported at AIR 1953 SC 198 (Asrumati Debi v. Rupendra Deb). In that case, a Division Bench of this Court had dismissed as not maintainable an appeal taken against an order made by a single Bench on the Original Side under Clause 13 of the Letters Patent. The Supreme Court upheld the view taken by the Division Bench. 3. The appellant comes forward with two judgments rendered in rather unusual circumstances and it is evident that these judgments may have been unearthed with considerable industry. In the first of the judgments, reported at (2000) 2 CHN 679 , proceedings before the Debts Recovery Tribunal instituted under the Recovery of Debts due to Banks and Financial Institutions Act, 1993 had been stayed as an interim measure on an application for transfer of such proceedings. The Court held that the order impugned was without jurisdiction as this Court could never have entertained an application for transfer of proceedings under the said Act of 1993 to this Court or any other civil Court. 4. The other judgment is reported at (2001) 1 Cal LT 285. In that case, an order was passed under Clause 13 of the Letters Patent, transferring a testamentary suit from the Alipore Court to this Court. On a subsequent application, the original order transferring the testamentary suit was recalled. It was such recalling order that was challenged and the opinion expressed was that the word “judgment” in Clause 15 of the Letters Patent did not conform to a straight-jacket formula but it had to be ascertained in every case whether the order impugned could be regarded as a judgment within the meaning of the expression to assess whether such order would be appellable. 5. In a sense, the Division Bench of this Court found in both the cases that there may have been error of jurisdiction in entertaining the matters. 6. The situation is quite different in this case where the appellant’s application under Clause 13 of the Letters Patent has been rejected. 7. 5. In a sense, the Division Bench of this Court found in both the cases that there may have been error of jurisdiction in entertaining the matters. 6. The situation is quite different in this case where the appellant’s application under Clause 13 of the Letters Patent has been rejected. 7. On an application under Clause 13 of the Letters Patent, the jurisdiction of the Court where the suit has been instituted is never questioned, but other grounds are cited for the suit to be transferred from the Court of institution to this Court on its Original Side. There is an equivalent provision in Section 24 of the Civil Procedure Code. The only exercise that is undertaken on an application under Clause 13 of the Letters Patent is to ascertain the convenience or inconvenience of the parties before rejecting or allowing the application. Such an order does not affect the substantive rights of the parties nor does it adjudicate upon any of the matters in issue or likely to be in issue in the suit. It is only the situs of the action that is altered, upon the Court being satisfied with the grounds carried by the applicant. It is not necessary that every application under Clause 13 must be allowed. The rejection of such an application implies that the Court did not find it appropriate to transfer the suit on the grounds urged in support thereof. There is an element of discretion which is exercised by the Court under Clause 13 of the Letters Patent; but since it does not affect the rights of the parties on any substantive matter, the order allowing or rejecting such a petition cannot be regarded as a judgment within the meaning of Clause 15 of the Letters Patent. At any rate, the everyday rejection or allowing of an application under Clause 13 of the Letters Patent cannot be seen to be appellable. Notwithstanding the two later judgments of another Division Bench of this Court, the dictum in Asrumati Debi has not and could not have been diluted. 8. The dictum in the two other judgments of the Division Bench of this Court must be confined to the peculiar facts of those cases where, the Court found that the order impugned was in error of jurisdiction. 9. 8. The dictum in the two other judgments of the Division Bench of this Court must be confined to the peculiar facts of those cases where, the Court found that the order impugned was in error of jurisdiction. 9. Accordingly, APO No.194 of 2018 and GA No.1719 of 2018 are dismissed as the appeal is considered to not be maintainable against an order rejecting an application under Clause 13 of the Letters Patent. 10. There will be no order as to costs.