N. Usha Rani and Another vs N. Rama Devi and Others

P.S. Narayana, J.—This Court on 29.7.2008 while issuing notice to the respondents granted interim stay of further proceedings on condition of depositing the entire decretal amount after deducting the amount, if any, already deposited. It was also specified that in the event of failure of the petitioner in complying with the above direction, the interim stay shall stand vacated.

There is some controversy whether the order had been complied with or not. The counsel for the petitioners asserting that the deposit in fact had been made and the counsel representing the respondents contending that the amount as directed by this Court in fact had not been deposited. This Court is not inclined to express any opinion relating to the said controversy in this transfer C.M.P.

The present transfer C.M.P is filed by the petitioners u/s 24 of the CPC (hereinafter in short referred to as ''the Code'' for the purpose of convenience) praying for withdrawal of the entire E.P. proceedings in E.P. No. 175 of 2005 along with E.A. No. 166 of 2005 from the file of the Principal Junior Civil Judge, Chittoor and transfer the same to the Court of the Additional Senior Civil Judge, Chittoor to be tried along with O.S. No. 98 of 2005 and pass such other orders.

Sri M. Venkataramana Reddy, learned Counsel representing the petitioners had taken this Court through the contents of the affidavit filed in support of the transfer C.M.P and would further maintain that to avoid conflicting judgments and also in the light of the language of Section 24 of the Code it would be just and proper to order transfer as prayed for. The learned Counsel also would maintain that though the first respondent herein filed transfer C.M.P. No. 393 of 2006 praying for similar relief and though the same was dismissed by this Court that could not come in the way since the principle of res judicata cannot be made applicable to such proceedings u/s 24 of the Code. The learned Counsel also placed strong reliance on the decision of this Court in Yeleti Pedaveerraju and Another Vs. Vanka Jayalakshmi and Others, .

Sri Raghuram representing Sri K.S.Gopalakrishna, learned Counsel representing the 3rd respondent, however, would maintain that absolutely there are no changed circumstances and in the light of the prior order made in Tr.C.M.P. No. 393 of 2006, this transfer C.M.P being devoid of merit, the same to be dismissed.

Sri S.S.Bhatt, learned Counsel representing the 4th respondent- auction purchaser would maintain that even as on today no application to set aside the sale as such had been filed and unnecessarily only with a view to further prolong the matter this transfer C.M.P had been filed by the petitioners and the transfer C.M.P is not a bona fide one. The learned Counsel also would maintain that the decision relied upon by the learned Counsel representing the petitioners is distinguishable on facts and even otherwise in the light of the facts and circumstances it is not a fit matter where Section 24 of the Code can be invoked.

Heard the counsel.

In the light of the submissions made by the counsel on record, the following points arise for consideration in this transfer C.M.P:

Whether the relief prayed by the petitioners in the present transfer C.M.P filed u/s 24 of the Code to be granted or to be negatived in the facts and circumstances of the case?

If so, to what relief the parties would be entitled to?

Point No. 1:

Petitioners filed the present transfer C.M.P praying for withdrawal of the entire E.P proceedings in E.P. No. 175 of 2005 along with E.A. No. 166 of 2005 from the file of the Principal Junior Civil Judge, Chittoor and transfer the same to the Court of the Additional Senior Civil Judge, Chittoor to be tried along with O.S. No. 98 of 2005 and to pass such other orders. It is stated that the first petitioner herein along with mother, 2nd petitioner filed claim petition claiming 19/25 share along with respondents 1 and 2 as the deceased brother had only 6/25 share and the said claim application was numbered as E.A. No. 166 of 2005 in O.E.P. No. 529 of 2001 and O.S. No. 481 of 1998 on the file of the I Additional Junior Civil Judge, Chittoor and the same is pending disposal. Further it is averred that the first respondent herein filed O.S. No. 98 of 2005 on the file of the Senior Civil Judge, Chittoor against the respondents herein seeking partition and separate position 6/25 share in the plaint schedule property along with a declaration that the auction held on 12.9.2003 in O.E.P. No. 529 of 2001 in O.S. No. 481 of 1998 in the court of the I Additional Junior Civil Judge, Chittoor, is as illegal and void and to set aside the same and grant of permanent injunction restraining respondents 3 and 4 from proceeding against the share of 1st respondent herein in the plaint schedule property. It is also stated that the 1st and 2nd petitioners are entitled to share in the property along with respondents 1 and 2 herein as per the provisions of the Hindu Succession Act. It is further stated that the 1st respondent herein filed Tr.C.M.P. No. 393 of 2006 on the file of this Court whereunder 1st and 2nd petitioner were shown as respondents 1 and 2 as the 2nd petitioner is widow who lost her husband and son she is aged 65 years and the first petitioner was blessed with a child therefore she was unable to move from Tirupati. In such circumstances the said transfer C.M.P filed by the first respondent was dismissed. It is also stated that the 3rd respondent herein filed O.E.P. No. 529 of 2001 on the file of the I Additional Junior Civil Judge, Chittoor against the first petitioner, her mother, respondents 1 and 2 seeking to bring the plaint schedule property in the suit for sale and to recover, as the first petitioner''s deceased brother alleged to have borrowed Rs. 52,000/- from 3rd respondent herein and he filed a suit against the first petitioner, her mother and her sisters for recovery of Rs. 89,470/- and the same was decreed. Inasmuch as the shares of the property were brought for sale, as the 4th respondent was the auction purchaser, therefore, the 1st petitioner and her mother filed claim application and the same is pending. It is further averred the 3rd respondent herein filed O.E.P. No. 529 of 2001 on the file of the I Additional Junior Civil Judge, Chittoor for sale of properties of the petitioners. Therefore, the 1st petitioner and her mother filed E.A. No. 166 of 2005 in E.P. No. 175 of 2005 against respondents herein claiming share of the properties and the same is pending for adjudication. It is also averred that the suit filed by the 3rd respondent herein for recovery of a sum of Rs. 89,470/- against the petitioners, whereas 1st respondent herein deposited Rs. 43,505/- and the petitioners paid a sum of Rs. 50,000/- and altogether the 1st petitioner and her mother deposited a sum of Rs. 87,005/- and the balance of E.P. amount with interest the petitioners herein are ready to deposit. In such circumstances, the transfer C.M.P had been filed.

It is not in serious controversy between the parties that for the self- same relief the first respondent herein, N.Ramadevi filed Tr.CMP No. 393 of 2006 on the file of this Court and this Court after recording reasons on 16.11.2007 dismissed the said transfer CMP without costs.

Strong reliance was placed on the decision of this Court in Yeleti Pedaveerraju and Anr. v. Venka Jayalakshmi and Ors. (supra) wherein the learned Judge while dealing with Section 24 of the Code observed that the dismissal of transfer petition by District Judge does not operate as res judicata for filing another transfer petition before the High Court, such a second petition can be filed for the same relief before the High Court even in the absence of any revision challenging the order of dismissal of transfer petition by the District Judge. The learned Judge followed the decision of this Court in Munnangi Ramakrishna Rao Vs. Dr. Vanakuru Venkata Siva Ramakrishna Prasad and Others, . There cannot be any controversy relating to the said proposition of law laid down in the decision referred to supra.

Here is a case where the first respondent belonging to the same family filed transfer C.M.P. No. 393 of 2006 praying for the self-same relief and the said transfer was dismissed by this Court by order dated 16.11.2007. The petitioners no doubt explained certain reasons in the affidavit filed in support of the transfer C.M.P. However this would not seriously alter the situation. When for the self-same relief one of the parties already had filed transfer u/s 24 of the Code and the same had been dismissed. Unless there are changed circumstances, normally such relief cannot be granted at the instance of the other parties, who are also similarly placed. It is not in serious controversy that all these parties virtually belong to the self-same family. That being so, when the first respondent in the transfer C.M.P. No. 393 of 2006 had been unsuccessful, this Court is of the considered opinion that the self- same relief prayed for by the petitioners cannot be granted u/s 24 of the Code.

Point No. 2:

In the light of the aforesaid finding recorded by this Court, the transfer C.M.P being devoid of merit and the same shall stand dismissed. No order as to costs.