Krishnappa vs Kallappa and Others

Both the applications (petitions) are filed under S. 24 of CPC 1908, hereinafter referred to as ''the Code''. The Registry of this Court has raised a common preliminary objection regarding their maintainability. That preliminary objection is to the following effect.

Applicant''s (petitioner/s) in each of the applications has/have, by an application made under S. 24 (1) of the Code before the concerned District Court, moved for withdrawal of his/-their suit from a Court subordinate to it and transfer to another. Bur, each of those applications has, by an order made thereon, been dismissed. The party aggrieved by such an order of a District Court could have filed only a revision petition under S. 115 of the Code, before the High Court questioning the same and not a second application under S. 24 (1) of the Code seeking the very relief which was denied by the District Court.

The short question that arises for determination by reason of the said preliminary objection, is whether a party, whose application before a District Court under S. 24 (1) of the Code for withdrawal of a suit pending in a Court subordinate to it and its transfer to another, is rejected, could file under the same sub-section a second application before the High Court, seeking the very relief.

Sub-section (1) of S. 24, in so far at it bears on the question, may be extracted:

"(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may, at any stage.-

(a) *********

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

(i) .......

(ii) transfer the same for trial or disposal to any Court subordinate to it or competent to try or dispose of the same."

This sub-section, as could be seen therefrom, invests the High Court as well as the District Court with power to withdraw any suit, appeal or'' proceeding pending in any Court subordinate to it and to transfer the same for trial or disposal to any other Court subordinate to it and competent to try or dispose of the same. Further, the High Court as well as the District Court could exercise such power either of its own motion or on the application of any of the parties to a suit or appeal or proceeding, pending before a subordinate Court. However, if the High Court or the District Court, as the case may be, wants, of its own motion, to exercise its power of withdrawal and transfer, it could do so not only without issuing notices to the parties concerned, but also without affording to them an opportunity of being heard. But, if the High Court or the District Court, as the case may be, is required to exercise its power of Withdrawal and transfer on the application of a party concerned in a suit, appeal or proceeding before a subordinate Court, such power cannot be exercised unless all the parties concerned are issued notices and afforded an opportunity of hearing, if any of them so desires.

As I am concerned in the present applications (Petitions) with the cases of parties in suits pending before Courts subordinate to both the High Court and the District Court, who had made applications under sub-sec. (1) of S. 24 of the Code before the concerned District Court seeking withdrawal from one its subordinate Courts and transfer to another, but failed, I propose to confine my enquiry for finding an answer to the precise question, whether it is open to the same parties to make fresh applications under the same sub-section before the High Court and seek the very relief which was denied to them by the District Court.

Learned Counsel for the applicants contended that from a plain reading of the sub-section, it cannot be said that a party, who makes an application under it before the District Court and fails, is precluded from making a second application thereunder for the same relief before the High Court They sought to seek full support for their contention from a decision of the Calcutta High Court in Gorachand Das vs. Dipali Das, 1980 Cal. W.N. 771.

Undoubtedly, the decision in Gorachand''s (supra) supports the contention urged for the applicants (petitioners). But, it has to be seen whether that decision could be of any real assistance in resolving the question under consideration, if it was not reached by placing a proper construction on the sub-section as such. That decision proceeds on the premise that on a plain reading of the section of which the sub-section in question is a part, it cannot be said that moving an application before the District Court will preclude the concerned applicant from moving a fresh application before the High Court and seeks support therefor from a Division Bench decision of the same Court in Harinath Biswas vs. Debendra Nath Biswas, 5 Ind. Case 771 (Cal.) and also a decision of the Patna High Court in Sheo Nandan lal vs. Mangalchand, AIR 1927 Pat. 383.

In Hari Nath Biswas''s case (2) (supra), it is observed thus:.

"The learned Vakil contends that under Section 24, the High Court and the District Court have concurrent jurisdiction and as the District Court has refused to exercise the jurisdiction vested in it, the jurisdiction vested in the High Court has been taken away. There is manifestly no foundation for this contention. Section 24, so far as the present point is concerned, is identical with Section 25 of the Code of 1882 and under that section this Court frequently exercised the power of transfer after an application for transfer made to the District Court had proved infructuous." (Underlining (italics) is mine)

From the said observation it is seen that the decision in the case has rested so much not on the construction placed on the sub-section but on the prevailing practice in the Calcutta High Court.

Sheo Nandanlal''s case (3) (supra) from which Gorachand''s case (1) of the Calcutta High Court has sought to derive support, also derives support from Hari Nath''s (2) case of the Calcutta High Court in that it adverts to that fact thus:

"In the case of Hari Nath Vs. Debendra Nath (5 IC 771) it was held that even though the District Judge had refused to exercise the power vested in him by law under S. 24 of the CPC the High Court had jurisdiction to act under that section."

Hence, I am unable to think that the applicant/s (petitioner/s) could get the support sought by them from the decision of the Calcutta High Court in Hari Nath Biswas (2) case (supra) in that its source is traceable only to a practice prevailing in the Calcutta High Court and not to any judicial construction placed on any part of S. 24 on an analysis thereof.

What the sub-section speaks of is only this: When an application is made under the sub-section by a party to a suit, appeal or proceeding pending before a Court subordinate to the High Court or the District Court that Court which receives the application is obliged to decide it, after issuing notices thereof to all the parties concerned in the suit, appeal or proceeding and after hearing such of them, who may so desire. However the sub-section does not state in express terms that it enables a party whose application under it is rejected by the High Court or the District Court, as the case may be to make a second application thereunder for the very relief before the other Court assuming without deciding that such party has the choice of approaching either the High Court or the District Court, at the first instance Then, is it permissible to place such a construction on an interpretation of the sub-section as such.

To say that a party, who makes an application under the sub-section before the High Court and fails is enabled by that very sub-section to make a second application before the District Court seeking the same relief is, plainly impermissible. It is so, not only for the reason that the language of the sub-section does not admit of such construction but also for the reason that such construction if placed thereon would lead to an absurd result of empowering the District Court to nullify a decision of the High Court. No doubt the same thing cannot be said of a party who unsuccessfully makes an application under the sub-section before the District court and makes a second application before the High Court claiming that he can maintain a second application under the same sub-section for the same-relief, provided the language of the sub-section admits of such construction. The express language of the sub-section as such does not admit such construction, is already painted out. Then does the language of the sub-section by implication admit such construction. This leads me to the necessity of finding the intention of the legislature in that regard.

When the sub-section states that the High Court or the District Court, of its own motion without notice to any of the parties concerned can withdraw a suit, appeal or proceeding from a Court subordinate to it and transfer the same to any other Court competent to try dispose of the same, the legislative intent therein that the High Court or the District Court as the case may be is invested with unbridled power in that regard becomes apparent On the other hand, when it speaks of the power of either the High Court or the District Court to be exercised on the application of a party it obligates the High Court or the District Court as the case may be, to exercise such power only after issue of notice to all the parties concerned and after hearing them if any of them so desires. This implies that the concerned Court''s power to withdraw and transfer on an application of a party could only be exercised on an objective consideration of the matter. From this it follows that a party, who moves either the High Court or the District Court for withdrawal of a suit, appeal or proceeding from a Court subordinate to it and its transfer to another cannot obtain an order in that regard behind the back of a party or parties likely to be affected by such order. This requirement suggests the a party who makes such an application should not only support it on grounds germane to the matter but should after taking notices of the same to the opposing parties establish them to the satisfaction of the Court concerned for his application to succeed.

The said restrictive nature of the subsection makes it rather difficult for me to say that the legislature under the subsection, envisages the giving of a second opportunity before the High Court to a party who does not succeed in making good the opportunity afforded to him in that regard before the District Court. I also find it difficult to impute such intention to the legislature, in that, I cannot ascribe to it a design of encouraging an unscrupulous litigant. I am inclined to think so, for the reason that a litigant, who will have unsuccessfully moved the District Court, causing already sufficient delay in the disposal of a suit, appeal or proceeding the withdrawal and transfer of which he had sought by availing of the time consuming opportunity provided for under the sub section, would be; enabled to move the High Court seeking similar opportunity for the second time, leading not only to the loss of its precious time, but also for further delay in the disposal of such suit, appeal or proceeding, adding to law''s delays.

For the foregoing reasons, the scope of the words "application" found in the subsection enabling a party to move either the High Court or the District Court for withdrawal of his case from a Court subordinate to if and its transfer to another, in my view. cannot be enlarged, so as to enable such party to move the other Court if he fails in the Court which he approaches first. Consequently, I answer the question under consideration, in the negative.

What now remains for consideration is the entertaining of revision by the High Court against a District Court''s order made on an application under S. 24 (1) of the Code. The entertaining of a revision under S. 115 of the Code against such an order, if so warranted, would be consistent with the accepted practice of this Court as is reflected from the preliminary objection raised by the Registry of this Court. As seen from a Division Bench decision of the Allahbad High Court in A.S. De Mello vs. New Victoria Mills Co., Ltd, AIR 1926 All 17 and that of the Patna High Court in Baijnath Prasad Singh vs. Dasarath Prasad Singh, AIR 1959 Pat. 9, it has been the prevailing practice of those Courts to entertain a revision petition under S. 115 of the Code against an order made on an application under S. 24 of the Code, Moreover, the explanation inserted by S. 43 of Central Act 104 of 1974, into S. 115 of the Code, since includes ''any order made'' also, within the ambit of the expression ''any case decided'' occurring therein, it becomes obvious that a revision would lie to the High Court against an order made under S. 24 of the Code, by a District Court. Learned Counsel appearing for the applicants in the applications (petitions) before me, did not contest these aspects of the matter.

In the result, I uphold the common preliminary objection raised respecting the maintainability of the applications (petitions) under S. 24 of the Code, now filed before this Court. However, in the circumstances of these applications (petitions), I grant liberty to the applicants (petitioners) to take the return of them, convert the same into Civil Revision Petitions under S. 115 of the Code and re-file them within a week thereafter.

I direct the Registry to register the converted petitions, if and when they are re-filed, as Civil Revision petitions and post them for admission