Barada Kanta Sarma vs Mt. Sarada Sundari Devi and another

Thadani, C.J.—This is a revision applications under the provisions of S. 115, Civil P.C., directed against an order of the learned District Judge L. A. D., dated 10-2-1950, by which he ordered Suit No. 71 of 1949 instituted by Barada Kanta Sarmah in the Court of the Munsiff at Gauhati, to be transferred to the file of the Subordinate Judge, Dhubri, for disposal, under the provisions of S. 24, Civil P.C.

Mr. Borah for the petitioner contended that the order of transfer passed by the learned Judge is in contravention of the terms of Ss. 22 and 24, Civil P.C. Section 22 has no application to the facts of this case. Suit No. 28 of 1948 was brought by Mt. Sarada Sundari Devi and Golok Chandra Chakravorty in the Court of the Subordinate Judge of Dhubri for the recovery of a sum of Rs. 1,213 on a hand-note against Barada Kanta Sarma. On 13-12-1948, the suit was decreed ex parte, and an application for setting aside the decree is still pending. Meanwhile, the applicant filed a suit, being Suit No. 71 of 1949, against Mt. Sarada Sundari Devi and Golok Chandra Chakravorty for the recovery of a sum of Rs. 1,190. It is not disputed that the facts, which gave rise to a cause of action in Suit No. 71 of 1949 instituted at the Court of the Munsiff of Gauhati are also the facts involved in the suit instituted by Mt, Sarada Sundari Devi and Golok Chandra Chakravorty in the Court of the Subordinate Judge of Dhubri. The learned Judge was, therefore, justified in ordering the transfer of Suit No. 71/49 to the file of the Subordinate Judge of Dhabri who is trying suit No. 23/48.

Mr. Borah, however, contends that before the learned Judge could transfer the Suit (NO. 71/49), he had to withdraw it from the file of the Munsiff of Gauhati. It is true that the learned District Judge has not passed a formal order withdrawing the suit from the file of the Munsiff of Gauhati, but it is clear that he had jurisdiction to order a transfer. The omission to pass A formal order withdrawing the suit from the file of the Munsiff of Gauhati does not amount to a material irregularity within the meaning of cl. (c) of S. 115, Civil P.C.

We, therefore, decline to interfere in the revision application, which is dismissed with costs.

Ram Labhaya, J.

I agree.