Amardeep and Others vs District Judge and Others

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record

This writ petition has been filed against the order dated 26.10.2006, passed by the District Judge, Lalitpur.

It appears that late Sri Jhaggey Ram son of late Sri Khinde Rajak executed a registered Will deed on 17.11.2001 through which it is claimed that he had given rights to the petitioners with regard to his agricultural land and the cash deposited in the State Bank of India, main branch, Lalitpur as well as main Branch of Punjab National Bank at Lalitpur. Sri Jhaggey Ram died on 6.12.2001. He was the grandfather of the petitioners and father of respondent No. 3. It is stated that as the petitioners had looked after him in his last days out of affection the grandfather Sri Jhaggey Ram had executed the aforesaid Will in favour of the petitioners.

It also appears from the record that on the basis of the aforesaid Will the petitioner filed Succession Case No. 34 of 2002, Amardeep v. Sohan Lal, u/s 372 of the Succession Act. Respondent No. 3 also filed Suit No. 76 of 2002 in the court of Civil Judge (Junior Division), Lalitpur for cancellation of the registered Will in question dated 27.11.2001 executed by late Sri Jhaggery Ram in favour of the petitioners.

From the record it further appears that respondent No. 3 moved application u/s 24 of the C.P.C. read with Order IVA of the C.P.C., which was registered as Misc. Case No. 18 of 2006 in the court of District Judge, Lalitpur.

The contention of the counsel for the petitioners is that in Case No. 34 of 2002 which is pending before the Civil Judge (Senior Division), Lalitpur, respondent No. 3 filed his objection and simultaneously had also moved an application u/s 10 of the C.P.C. for staying of the proceedings in that case which was rejected vide order dated 13.1.2006. The aforesaid order dated 13.1.2006 has been challenged in Revision No. 3 of 2006 before the District Judge, Lalitpur. The Court fixed 15.2.2006 as the next date. In that application respondent No. 3 had also stated that in Case No. 76 of 2002 the Civil Judge (Senior Division), Lalitpur, had passed an order which has already been challenged in Revision No. 3 of 2006 and that the matter is pending before the court of Additional District Judge (Dacoity Affected Area), Lalitpur, in which 25.2.2006 was fixed as next date. The prayer was made that Case No. 76 of 2002 may be transferred to the court of Civil Judge (Senior Division), Lalitpur where the matter of the petitioners regarding succession is pending so that both the cases may be heard together.

It is urged that the aforesaid application for transfer of Case No. 76 of 2002 was heard by the District Judge, Lalitpur, who vide order dated 26.10.2006 allowed the application without recording any reason transferring the case of respondent No. 3, i.e., 76 of 2002 in the court of Civil Judge (Senior Division). Lalitpur. which is impugned in the present writ petition on the ground that It is against the provisions of Order IVA of C.P.C., as the nature of pecuniary jurisdiction of Civil Judge (Junior Division) and the Civil Judge (Senior Division) are different and both the cases are different and the same cannot be consolidated.

Order IVA of C.P.C. is as under:

Order IVA : Consolidation of suits and proceedings:

When two or more suits or proceedings are pending in the same Court and the Court is of opinion that it is expedient in the interest, it may by order direct-their Joint trial, whereupon all such suits and proceedings may be decided upon evidence in all or any of such suits or proceedings.

It is stated that in the plaint of Suit No. 76 of 2002 it has been admitted by respondent No. 3 that Sub-Registrar himself has visited the place and before him the Will was executed by late Sri Jhaggey Ram and in this way it is import of the statement made by respondent No. 3 that the Will executed and verified before the Sub-Registrar and testator had also expressed his Will before the Sub-Registrar. Thereafter it was registered and as such the Will in question is not a forged document but is a bona fide one and according to Will and wishes of the testator it is submitted that the Will cannot be cancelled.

It is submitted that the District Judge has committed manifest error of law without recording any finding that both the matters are same and on the other hand has passed a mechanical impugned order dated 26.10.2006 on the basis of surmises and conjectures; that the District Judge has exceeded its jurisdiction by way of passing the impugned order dated 26.10.2006 which was not called for in the facts and circumstances of the case and that he has failed to exercise powers vested in him and has committed a manifest error of law by passing the impugned order dated 26.10.2006.

It is next submitted that from perusal of the aforesaid Order IVA of C.P.C. it is abundantly clear that If there is multiplicity of the suits or proceedings, in the same Court then Court may consolidate all the cases and the Court itself can direct for Joint trial; in the present case u/s 24, C.P.C. there is no such provision to transfer the case by the superior court from two different courts at one place and making order for consolidation of the suit and that the District Judge has committed manifest error of law by assuming Jurisdiction illegally u/s 24, C.P.C. and passed an order dated 26.10.2006, which is totally Illegal and bad in the eye of law.

The order of the court below which is impugned in the present is as under:

26-10-2006

vkosnd dk dFku gS fd e`rd Lo0 >Xxs jke us dHkh dksbZ olh;r fu"ikfnr ugha dhA vr% mudh rFkkdfFkr olh;r fnukad 24@27-11-2001 dks fujLr djus ds fy, mUgksus okn la0 76@2002 lksgu cuke vejnhi flfoy tt �tw0fM0� ds U;k;y; es nk;j fd;k gSA tc fd mlh olh;r ukes ds vk/kkj ij mRrjkf/kdkj izek.ki= izkIr djus fy, vejnhi bR;kfn mRrjkf/kdkj izek.ki= okn la0 34@2002 vejnhi vkfn cuke lksgu yky flfoy tt �lh0Mh0� ds ;gka izLrqr dj fn;k gS fd ftlesa vkosndx.k us /kkjk 10 lh0 ih0 lh0 dk izkFkZuki= izLrqr fd;k] tks fujLr dj fn;k x;k A U;k; laxr ;g gS fd nksuks okn ,d gh U;k;y; }kjk fuLrkfjr fd;s tk, A

eSus vfHkys[k dk voyksdu fd;k A esjs fopkj ls ;g U;k;laxr gksxk fd Lo0 >Xxsjke olh;r ds lEcU/k es ,d gh U;k;ky; }kjk fu.kZ; ikfjr fd;k tk, A

vr% ewy okn okn la[;k 76@2002 lksgu yky cuke vejnhi vkfn U;k;ky; flfoy tt �tw0fM0� yfyriqj ls okil fy;k tkrk gS vkSj U;k;y; flfoy tt �lh0Mh0� yfyriqj es fof/k lEer jhfr ls fuLrkj.k gsrq vUrfjr fd;k tkrk gSA vkSj U;k;ky; flfoy �lh0Mh0� yfyriqj fof/k lEer jhfr ls fuLrkj.k gsrq vUrfjr fd;k tkrk gS A

g0 vLi"V �mes''k pUnz� ftyk tt yfyriqj

The contention of the counsel for the petitioner that the court below could not allow the application of respondent No. 3 as the pecuniary Jurisdiction of both the Courts are different has no force as the Court did not have the power to consolidate the cases. Admittedly, Case No. 76 of 2002. Sohan Lal v. Amardeep, has been filed in the court of Civil Judge (Junior Division) for cancellation of the alleged Will deed dated 24/27.11.2007 which according to the respondents was never executed as such according to respondent No. 3 in these circumstances, the petitioners were not entitled to grant of any Succession Certificate, hence they could not have filed Misc. Case No. 34 of 2002, Amardeep v. Sohan Lal, before the Civil Judge (Senior Division) in which an application u/s 10, C.P.C. has been moved which has already been rejected.

From perusal of the impugned order of the court below it is apparent that the court below has held that it would be in the interest of Justice in the aforesaid circumstances that both the cases are decided in the same Court. In my opinion, the claim of the petitioners as well as of respondent No. 3 is based upon execution or non-execution of the alleged Will deed and this stand to reason that Case No. 76 of 2002, Sohan Lal v. Amardeep and Ors. has been transferred to the court of Civil Judge (Senior Division), Lalitpur where Case No. 34 of 2002, Amardeep v. Sohan Lal and Ors. is pending so that uniformity is maintained.

In the circumstances, the District Judge, Lalitpur, has therefore by the impugned order dated 26.10.2006, has rightly recalled Case No. 76 of 2002, Sohan Lal v. Amardeep and Ors. from the court of Civil Judge (Junior Division), Lalitpur and transferred the same to the court of Civil Judge (Senior Division), Lalitpur, for deciding in accordance with law. It is apparent from the impugned order that the aforesaid two cases have not been consolidated as has been urged by the counsel for the petitioners who has conceded that the District Judge does not have power to transfer the case from one Court to another Court.

In this view of the matter the recall of the case from the court of Civil Judge (Junior Division), Lalitpur and transferring the same to the court of Civil Judge (Senior Division), Lalitpur, for decision in accordance with law cannot be said to be suffer from any illegality.

As regards Order IVA and Section 24 of the C.P.C. are concerned, it is apparent that Section 24 provides for general power of transfer and withdrawal on the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage. Section 24 of the code is as under:

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 desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage:

(a) transfer of any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it and

(1) try or 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 of 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 or dispose of such suit or proceedings may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes 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 Court which has no jurisdiction to try it.

Order IVA of the C.P.C. does provide for consolidation of suit and proceedings. The expression "same Court" in Order IVA does not mean by the same Judge, rather means the same civil court. If the limited meaning is given to this expression, it would create hurdle in substantial dispensation of Justice and cases which require decision on the basis of same document in the same set of facts and circumstances in that case be decided by different courts and by different Judges who may not be aware of the arguments made in either case which will defeat the object of Order IVA, C.P.C. Therefore, this Court is of the opinion that the meaning given to the word ''same court'' may be one, which advances object of the provisions of the Act and not defeat it. A wider meaning has therefore, to be given to the words ''same Court'', rather a restricted meaning as urged by the counsel for the petitioners.

For the reasons stated above, I do not find any illegality or infirmity in the impugned order by which the proceedings before the Civil Judge (Junior Division) have been transferred to the court of Civil Judge (Senior Division), Lalitpur.

The writ petition is dismissed. No order as to cost.