E. D. Enterprises Private Limited vs Kaiser Begum And Anr.

This is an application under clause 13 of the Letters Patent, 1865, filed by the plaintiff for transfer of Title Suit No. 571 of 2020 being a suit filed by the

defendant no.1, in the learned City Civil Court at Calcutta.

According to learned counsel appearing for the plaintiff, the parties are identical in both the suits and the property in dispute is also identical which

would be evident from the schedule to the suit filed by the defendant no.1 in the City Civil Court.

Counsel submits that since the plaintiff’s suit is pending in this Court where affidavits have been directed, the defendant’s suit pending in the

City Civil Court should be transferred to this Court and both the suits heard analogously to prevent contrary decisions. It is also submitted that the

defendant no.1 is enjoying an interim order passed by the City Civil Court by which the plaintiff has been restrained from disturbing peaceful

possession of the defendant no. 1 till disposal of the injunction application filed by the defendant no.1. Counsel submits that the plaintiff has filed its

written objection in the City Civil Court and the injunction application is yet to be heard. On the factual score counsel submits that the defendants have

not paid any rent for eighteen months and there is presently an arrear of Rs.21,00,000/- pending from the defendants.

Learned counsel appearing for the defendants opposes the prayer for transfer on the point of maintainability in that clause 13 of the Letters Patent

does not apply to a suit filed in the Commercial Division to the High Court. It is also submitted that since the plaintiff’s suit is pending before the

Commercial Division, the present application is not maintainable by reason of it having been filed in the Ordinary Original Civil Jurisdiction.

Upon hearing learned counsel, this Court is of the view that there is sufficient evidence, at least, prima facie, that the dispute between the parties

relates to the plaintiff before this Court seeking to evict the defendant no.1 from the suit premises which is 42 A, Shakespeare Sarani, Kolkata. It is

also clear that apart from the parties being the same, by reason of the identity in the subject matter of the dispute, the defence and the evidence would

in all likelihood be the same. However, the relief in an application of the present nature clause for issuing the Rule on the respondents to show-cause

as to why an order should not be passed for removing the Title Suit which is pending before the City Civil Court. The decision on whether the Title

Suit can be transferred to this Court would depend on the explanation given by the respondents to show-cause.

ALP No.3 of 2021 is accordingly allowed. Let Rule be issued calling upon the respondents to show-cause as to why an order should not be passed

removing Title Suit No. 571 of 2020 pending before the City Civil Court and transfer the sane to this Court in its Extraordinary Original Jurisdiction for

trial and determination. The respondents are given four weeks time to respond to the show-cause. In the meantime, however, since the decision has to

be arrived at on the answer of the respondents, there shall be an order in terms of prayer (c) of the application namely, stay of all further pending in

Title Suit No. 571 of 2020 till disposal of this application.

List this application after five weeks.