Joginder Vaid, S/o. Late Sh. Chuni Lal Vaid v. Shailender Vaid, S/o. Sh. Joginder Vaid
2024-04-03
JAVED IQBAL WANI
body2024
DigiLaw.ai
ORDER : 1. Through the medium of the instant petition filed under Section 24 of the Code of Civil Procedure, the petitioners herein seek transfer of the civil suits titled as “Shailender Vaid Vs. Joginder Vaid and Ors.” from the court of Principal District Judge, Kathua and “Shailender Vaid Vs. Sangeeta Vaid and Ors.” from the court of Munsiff, Chenani to any other court of competent jurisdiction at Jammu. 2. The facts giving rise to the filing of the instant petition reveal that the respondent 1 herein is the son of the petitioners 1 and 2 herein and brother of petitioners 3, 4 and proforma respondent 2 herein. 3. The respondent 1 herein is stated to have filed a suit for partition before the court of Principal District Judge, Kathua with regard to the House bearing No. 179-P situated at Sector 3, Trikuta Nagar, Jammu along with a shop constructed therein the suit house besides a petrol pump run under the name and style of M/s Angad Filing Station situated at Basohli along with petrol tankers attached to the said petrol pump as also of a plot of land bearing No. 80 measuring 1.5 kanals situated at Yard 6, Transport Nagar, Narwal, Jammu. A decree for permanent prohibitory injunction has also been sought by the plaintiff/respondent 1 herein in the said suit against the defendants/petitioners herein and proforma respondent 2 herein for restraining them and their agents from alienating the said suit property in any manner as also from raising any sort of construction thereon the suit property. Besides in the said suit, a decree for recovery of 1/5th share of the plaintiff/respondent 1 herein from the income i.e., rent received from the shop constructed at House No. 179-P supra and 1/5th share of the profit from the sale of the aforesaid petrol pump w.e.f., 14.08.2004 has also been sought. 4. It is being stated by the petitioners herein that in response to the summons issued in the said suit, they appeared before the trial court and filed written statement to the suit besides filing a counter claim. It is being further stated that the suit filed at Kathua has been filed by the plaintiff/respondent 1 herein with the sole aim to drag the petitioners to the said suit and deliberately incorporated M/s Angad Filing Station, Basohli-the petrol pump which is not being owned by the petitioners herein. 5.
It is being further stated that the suit filed at Kathua has been filed by the plaintiff/respondent 1 herein with the sole aim to drag the petitioners to the said suit and deliberately incorporated M/s Angad Filing Station, Basohli-the petrol pump which is not being owned by the petitioners herein. 5. It is being further stated that besides filing the aforesaid suit, the respondent 1 herein also filed a suit for declaration and injunction against the petitioner 2 herein before the court of Munsiff, Chenani being titled as “Shalender Vaid Vs. Sangeeta Vaid” qua land measuring 4 kanals falling under khasra No. 1440/644 situated at National Highway, Kud, Tehsil Chenani District Udhampur, along with construction raised thereon on the ground of adverse possession, besides seeking a decree for permanent prohibitory injunction therein for restraining the defendant from interfering in any manner into the possession of the suit property. 6. The said suit is also being stated to be contested by the petitioner 2 herein by filing a written statement as also objections to the application for interim relief wherein an interim direction earlier granted stands vacated by the said court. It is being further stated that the said suit came to be filed by the respondent 1 herein with an aim to drag the petitioners herein being old aged persons in the said suit. 7. The fundamental grounds for the transfer of the suits in the instant petition urged by the petitioners are that the transfer of the same would meet the ends of justice besides being for the convenience of the parties. 8. Objections to the petition have been filed by the respondent 1 herein wherein the petition is being opposed and resisted. Heard learned counsel for the parties and perused the record. 9.
8. Objections to the petition have been filed by the respondent 1 herein wherein the petition is being opposed and resisted. Heard learned counsel for the parties and perused the record. 9. Before proceeding to advert to the aforesaid grounds urged in the petition by the petitioners for transfer of suits in question, it would be appropriate to refer to the relevant provisions of law in the first instance hereunder:- Section 16 of the Code of Civil Procedure provides that the suits for recovery of immoveable property or for partition of immovable property or for foreclosure, sale or redemption of mortgage property or for determination of any other right to or interest in immovable property or for compensation for wrong to immovable property must be instituted in the court within the local limits of whose jurisdiction the property is situate. The primary object of the aforesaid section is to limit the territorial jurisdiction in respect of claims to immoveable property to courts within whose jurisdiction such property is situate. It embodies the well settled principle of law that a court has no jurisdiction over a matter in regard to which it cannot give effective judgment. The term "immoveable property" appearing in section 16 of the Code of Civil Procedure has not been defined in the Code, however, in General Clauses Act of 1897, "immoveable property" has been defined to include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Section 17 of the Code of Civil Procedure supplements Section 16 of the Code of Civil Procedure and enables the court to entertain a suit in respect of properties partly situated in its territorial limits and party out of it where the same relief is sought in respect of the whole of it. The primary object of Section 17 of the Code of Civil Procedure is to avoid plurality of suits and is intended for the benefit of suitors and avoids multiplicity of proceedings with regard to immovable property.
The primary object of Section 17 of the Code of Civil Procedure is to avoid plurality of suits and is intended for the benefit of suitors and avoids multiplicity of proceedings with regard to immovable property. Under Section 17 of the Code of Civil Procedure where a suit can be instituted in more than one court, the plaintiff has a right to select his own forum and essentially gives an option to the plaintiff to bring a suit in any court within whose jurisdiction a portion of the property in dispute is situate, however, the only restriction imposed by Section 17 is that the entire claim should be within the pecuniary jurisdiction of the court. Section 24 of the Code of Civil Procedure provides for general power of transfer of any suit, appeal or other proceedings at any stage upon an application of a party or by a court of its own motion. This Section confers a comprehensive and discretionary power of transfer of all suits, appeals and other proceedings. An application for transfer of a suit under Section 24 of the Code of Civil Procedure can be made by any of the parties to the suit and although the power of the Court under Section 24 is discretionary in nature, yet the same cannot be said to be exercised on mere asking of a party but for a sound and reputable reasons and ground to be exercised with care, caution and circumspection. 10. Keeping in mind the aforesaid position of law and reverting back to the case in hand, the petitioners herein have urged two grounds for seeking transfer of the suits firstly that the transfer would meet the ends of justice and secondly that the same will be for convenience of the parties as the parties reside at Jammu. 11. It is well settled position of law that although the discretionary power of transfer of a case cannot be imprisoned within the strait-jacket of any cast iron formula uniformly applicable to all situations, yet the jurisdiction under section 24 of the Code of Civil Procedure has to be exercised with extreme care, caution and circumspection and that the search should be for justice and the court must be satisfied that justice could more likely be done between the parties by refusing to allow the plaintiff to continue his suit in the forum of his own choice.
However, a mere balance of convenience in favour of the proceedings in another court, albeit a material consideration may not always be a sure criterion justifying transfer. The aforesaid view has been expressed by the Supreme Court in case titled as “Indian Overseas Bank Vs. Chemical Construction Co. reported in (1979) 4 SCC 358 . The contention that the petitioners 1 and 2 herein are in old age or that the suit has been filed in a court at far of place from their residence cannot be said to be a valid ground for transfer of the cases as, it is an admitted fact that the petitioner 2 herein has been contesting the suit filed against her by the plaintiff/respondent 1 herein at Chenani and has succeeded even getting the interim order passed therein in the suit vacated. Same is the position qua the suit pending before the Principal District Judge, Kathua wherein admittedly the defendants/petitioners herein have appeared and even filed the reply to the suit suggesting that they are very well contesting the same conveniently without any hindrance. 12. Under these circumstances, the plaintiff-respondent 1 being dominus litis cannot be compelled to appear before a forum by this Court and to pursue the suits which he has chosen to file according to his option and at his own choice, however, permissible under law. 13. Under these circumstances and having regard to the aforesaid analysis, the grounds urged by the petitioners cannot, therefore, be said to be sound warranting transfer of the suits from the courts where the said suits are pending trial. 14. Resultantly, the petition fails and is accordingly dismissed.