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2019 DIGILAW 97 (AP)

Motupalli Usha Rani v. Pala Siwa Rama Krishna

2019-06-21

M.SATYANARAYANA MURTHY

body2019
ORDER : M. Satyanarayana Murthy, J. 1. Both these transfer civil miscellaneous petitions are filed under Section 24(1)(b) of C.P.C., for withdrawal of OS No. 4 of 2016 on the file of VII Additional District and Sessions Judge (Fast Track Court), Peddapuram, and OS No. 5 of 2016 on the file of III Additional District Judge, Kakinada, East Godavari District, respectively and transfer them to the Court of VII Additional District Judge, Visakhapatnam, to try alongwith OS No. 794 of 2015, which is pending adjudication on the file of the said Court. 2. The petitioner herein is the defendant in OS No. 4 of 2016 on the file of VII Additional District and Sessions Judge (Fast Track Court), Peddapuram and in OS No. 5 of 2016 on the file of III Additional District Judge, Kakinada, East Godavari District, so also in OS No. 794 of 2015 on the file of VII Additional District Judge, Visakhapatnam. Whereas, one Pola Siva Rama Krishna is the plaintiff in OS No. 4 of 2016, one Vasireddy Kondal Rao is the plaintiff in OS No. 5 of 2016 and one Pattapu Siva Ramakrishna is the plaintiff in OS No. 794 of 2015. OS Nos. 4 and 5 of 2016 are filed for recovery of Rs. 15,38,500/- and Rs. 15,39,000/- on the foot of promissory notes dated 16.12.2012 and 29.12.2012 respectively, allegedly, executed by the petitioner herein in favour of the plaintiffs therein referred supra. 3. The main ground urged before this Court is that the petitioner herein is a cancer patient and one suit is pending before the VJJ Additional District and Sessions Judge (Fast Tract Court), Peddapuram, and another suit is pending before the III Additional District Judge, Kakinada, East and the third Suit is pending before the VH Additional District Judge, Visakhapatnam and produced documents in support of her contention that she is suffering from serious ill-health i.e., cancer. But, in a civil suit, the petitioner is not required to appear before the Court on every date of adjournment and even if the petitioner is suffering with such serious illness, she can seek for appointment of Advocate-Commissioner to record her cross-examination at her residence by invoking the provisions of Order XVIJI Rule 4(h) CPC read with Order XXVI Rule 1 CPC. Therefore, on the ground of ill-health, the suits in OS Nos. Therefore, on the ground of ill-health, the suits in OS Nos. 4 and 5 of 2016 cannot be withdrawn and transferred to the Court of the VH Additional District Judge, Visakhapatnam, to try alongwith OS No. 794 of 2015. 4. The other ground raised before this Court is that the Courts at Kakinada and Peddapuram lack territorial jurisdiction as the defendant is not residing within the territorial limits of Kakinada and Peddapuram, and therefore, requested to withdraw the above said two suits on this ground also. But lack of territorial jurisdiction is not a ground to exercise power under Section 24 CPC to withdraw and transfer the suits from one Court to another Court. But it is a ground to return the plaint under Order VII Rule 10 CPC or the petitioner may file an appropriate application under Order XIV Rule 2 CPC to frame an issue as to territorial jurisdiction and try the same as a preliminary issue. Therefore, liberty is given to the petitioner to file appropriate applications under Order VII Rule 10 or under Order XIV Rule 2 CPC. 5. With the above observation, both these transfer civil miscellaneous petitions are dismissed. No costs. Consequently, miscellaneous applications pending if any, shall stand closed.