Parachuri Jayarama Naidu and Others vs Parachuri Nageswara Naidu

P.S. Narayana, J.—Heard Sri M. Venkataramana Reddy, learned Counsel representing the petitioners and Sri T.C.Krishnan, learned Counsel representing the respondent.

The present transfer C.M.P is filed u/s 24 of the Code of Civil Procedure, hereinafter for short referred to as ''the Code'' for the purpose of convenience, praying for withdrawal of O.S. No. 129 of 2005 on the file of Principal Senior Civil Judge, Chittoor and transfer the same to the Additional Senior Civil Judge''s Court, Chittoor, for joint trial along with O.S. No. 456 of 2007 and to pass such other suitable orders.

This Court ordered notice on 24.11.2008 and granted interim stay in C.M.P. No. 671 of 2008.

Sri M. Venkataramana Reddy, learned Counsel representing the petitioners would maintain that the District Court and this Court are having concurrent jurisdiction, the present transfer C.M.P is filed u/s 24 of the Code in the peculiar facts and circumstances though the transfer O.P was presented to the learned District Judge, Chittoor, the same was not numbered and several returns made by the learned Judge would go to show that the concerned court was not interested in numbering the transfer O.P at all and in the said facts and circumstances the petitioners are left with no other option except to approach this Court u/s 24 of the Code. The counsel also in all fairness would submit that when transfer proceedings are being prayed for it may be appropriate to approach the concerned District Court at the first instance, but, however, in the light of the fact that concurrent jurisdiction had been conferred both on the District Court and the High Court as well in the light of the clear language of Section 24 of the Code, the petitioners had chosen to file the present transfer C.M.P u/s 24 of the Code. The learned Counsel had taken this Court through the contents of the affidavit filed in support of the transfer C.M.P and would maintain that in the facts and circumstances of the case the transfer as prayed for to be ordered. While further elaborating his submission the counsel would maintain that to avoid multiplicity of the proceedings and also to avoid conflicting judgments it would be appropriate to order joint trial as well. The counsel also relied on certain decisions to substantiate his submissions.

Per contra, Sri T.C.Krishnan, learned Counsel representing the respondent would maintain that in the light of the respective stand taken by the parties it would not be just and proper to order joint trail. The counsel also would maintain that having approached the District Court by filing transfer O.P., merely because some returns had been made, that by itself cannot be a ground to approach this Court by filing the present transfer C.M.P u/s 24 of the Code. Even otherwise the counsel would maintain that the parties virtually are not same and further the defence taken being different it cannot be just and appropriate to order transfer C.M.P as prayed for by the petitioners especially in view of the fact that the suit O.S. No. 129 of 2005 on the file of the Principal Senior Civil Judge, Chittoor, is at an advanced stage, whereas the subsequent suit instituted is O.S. No. 456 of 2007, which is pending on the file of the Additional Senior Civil Judge, Chittoor, is not ripe to expedite the further proceedings and since the intention of the petitioners is only with a view to further delay the disposal of these matters and taking into consideration the conduct of the parties as well, the transfer C.M.P to be dismissed.

Heard the counsel.

The transfer C.M.P is filed by the petitioners praying for withdrawal of O.S. No. 129 of 2005 on the file of the Principal Senior Civil judge, Chittoor to the file of the Additional Senior Civil Judge, Chittoor for joint trial along with O.S. No. 456 of 2007 and to pass such other or suitable orders. It is stated that the respondent filed O.S. No. 129 of 2005 on the file of the Senior Civil Judge, Chittoor against the petitioners for declaration of right and title in relation to the land in Sy. No. 378/14 pleading prior oral partition. The petitioners-defendants are disputing prior oral partition. It is also stated that the petitioners filed a suit for declaration and partition against the respondent and others in O.S. No. 456 of 2007 on the file of the Additional Senior Civil Judge, Chittoor in respect of properties in Sy. Nos. 41/4, 41/5, 41/6 and 41/8. All these properties constitute one block covered by a common document. Thus both the suits are pending on the file of different courts at Chittoor. It is also stated that both the properties are covered by registered partition deed dated 11.7.1958 and the issues which would arise for consideration being common in both the suits, both the suits are to be transferred to be tried by one court by joint trial. Certain other factors also had been narrated specifically the presentation of transfer O.P. before the Principal District Judge, Chittoor and the same had been returned also had been specified in para 7 of the affidavit filed in support of the transfer C.M.P. It is no doubt true that in the light of the clear language of Section 24 of the Code both the District Court and this Court are having concurrent jurisdiction. It would be always desirable to move the District Court at the first instance praying for transfer of proceedings. If such proceedings are to be made within the District and if transfers are to be made u/s 24 of the Code from one District to yet another court in yet another District, since the same District Court cannot make such an order, it would be just and convenient for the parties to approach this Court straightaway u/s 24 of the Code. Be that as it may, the learned Counsel representing the petitioners placed strong reliance on the decision of this Court in Munnangi Ramakrishna Rao Vs. Dr. Vanakuru Venkata Siva Ramakrishna Prasad and Others, wherein at paras 4 and 5 the learned Division Bench observed as hereunder:

Prior to 1999 Amendment, proviso to Section 115(1) C.P.C read:

Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where:

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made." After 1999 Amendment, proviso to Section 115(1) C.P.C. reads:

Provided that the High Court shall not, under this Section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

As seen from the above, by 1999 Amendment Clause (b) of the proviso to Section 115(1) is omitted and Clause (a) is added to the main proviso itself. A transfer petition filed before the District Court is a ''proceeding''. Since any order, either allowing or refusing to transfer a suit from one Court to another, finally disposes of the transfer petition, there can be little doubt that such order is amenable to revision both prior and subsequent to 1999 Amendment to C.P.C. Therefore, we hold that revision against an order passed in a petition filed u/s 24 C.P.C., either allowing or refusing to transfer a suit or proceeding by the District Court is maintainable. The point is answered accordingly.

Section 24 C.P.C. reads:

24(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 may at any state:

(a) transfer 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

(i) 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 to 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 proceeding 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 purpose of such suit, be deemed to be a Court of Small Causes.

[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]. A plain reading of the above Section shows that both High Court and District Court have concurrent jurisdiction to transfer proceedings in any Court subordinate to them to another Court either suo motu or on an application by any of the parties to the proceedings. There is nothing in the said Section to suggest that when the District Court is seisin of a similar application the High Court should not entertain an application for the same purpose. If we may say so under the Code of Criminal Procedure, 1973 (for short ''Cr.P.C'') both High Court and Sessions Court are given powers to grant anticipatory bail (Section 438 Cr.P.C.) and bail (Section 439 Cr.P.C.). Plethora of case law shows that the fact that the Sessions Court was moved for bail or anticipatory bail, by itself, is not a bar for the High Court entertaining a similar application. Here we feel it relevant to mention that a learned Single Judge of this Court in K.V. Soorayya Chetty v. P.Dasaratha Naidu 1966 (1) ALT 372, relying on the decisions of Calcutta and Patna High Courts, took the view that both District Court and High Court have the same power of transfer u/s 24 C.P.C. We feel it relevant to refer to the decision of a Full Bench of Calcutta High Court in Diptendu Nayek and Others Vs. State of West Bengal, , where the question as to whether an application for anticipatory bail u/s 438 Cr.P.C., would lie before the High Court when such application was rejected by the Sessions Court. In para 11 of the said Judgment it is observed as follows: "During the course of argument we drew the attention of the learned Counsel for the parties to the provisions of Section 24 of the Code of Civil Procedure, 1908, wherein the analogous expression "the High Court or the District Court", has been used and it has been provided that "the High Court or the District Court may at any stage" transfer or withdraw any suit, appeal or other proceeding and the settled proposition in this Court is that a party may apply afresh to the High Court u/s 24 even after moving the District Court without success. As early as in 1909, when it was urged before a Division Bench of this Court in Hari Nath v. Debendra Nath 11 CLJ 218 that u/s 24, the High Court and the District Court having concurrent powers, the High Court would have no jurisdiction under that Section where the District Court had already declined the transfer, Sir Ashutosh, speaking for the Bench, repelled the contention (at 219) as having "manifestly no foundation" and ruled that u/s 25 of the preceding Code of 1882, corresponding to Section 24 of the present Code, "this Court frequently exercised the power of transfer after an application, for transfer made to the District Court had proved infructuous." To the same effect is the later decision of the Patna High Court in Sheo Nandan Lal and Others Vs. Mangal Chand, where the Division Bench decision of this Court in Hari Nath (supra) was followed. A similar contention appears to have been made in a much later Division Bench decision of this Court in Gorachand v. Dipali 1976 2 Cri LJ 380 and it was urged that the petitioner once having made an application u/s 24 before the District Court and that application having failed, shall not be entitled to move a fresh application u/s 24 before the High Court. The Division Bench has ruled (at 387) that "on a plain reading of the Section it cannot be said that moving an application before the District Court will preclude the petitioners from moving a fresh application before the High Court" and relied on and followed the Division Bench decision in Hari Nath (supra) and the Patna decision in Sheo Nandan (supra) for the purpose.

It is thus seen that both Patna and Calcutta High Courts have also taken the view that an unsuccessful party before the District Court can move a fresh application for the same purpose in the High Court, which impliedly means that he need not question the order of dismissal by the District Court either u/s 115 C.P.C or under Article 227 of the Constitution. Therefore, we hold that a petition u/s 24 C.P.C is maintainable even without the order of dismissal of such petition by the District Court being questioned either u/s 115 C.P.C or under Article 227 of the Constitution of India. The point is answered accordingly.

Further, strong reliance was placed in Dr. Subramaniam Swamy Vs. Ramakrishna Hegde, wherein the Apex Court at paras 8, 10, 11, 13 and 15 observed as hereunder:

Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided the State Government of the State in which the other High Court had its principal scat consented to the transfer. The present Section 25 confers the power of transfer on the Supreme Court and is of wider amplitude. Under the present provisions the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other Civil Court in one State to a High Court or other Civil Court of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of expediency would depend on the facts and circumstances, of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one Court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular Court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has, therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude -for the ends of justice - have been advisedly used to leave the matter to the discretion of the apex Court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner''s plea for the transfer of the case must be tested on this touchstone.

Counsel for the respondent pointed out that mere convenience of the petitioner and absence of likelihood of prejudice to the respondent should not weigh with the Court in directing the transfer of the suit from the Bombay High Court to a Civil Court in Karnataka. We have already emphasised that the paramount consideration for transfer of the case u/s 25 of the Code must be the requirement of justice. If the ends of justice so demand, the case may be transferred under this provision notwithstanding the right of dominus litis to choose the forum and considerations of plaintiff''s convenience, etc., cannot eclipse the requirement of justice. Justice must be done at all costs, if necessary by the transfer of the case from one Court to another. That is why in Union of India (UOI) and Another Vs. Shiromani Gurdwara Prabandhak Committee and Others, this Court while sounding a note of caution that the power must be exercised with circumspection observed that the Court should not hesitate to act if the ends of justice so demand in an appropriate case. In the light of the principle enunciated above, we may now consider the case before us. On a bare perusal of the allegations set out in Clauses (a) to (p) of paragraph 4 and Clauses (q) to (y) of paragraph 5 of the plaint, which form the basis of the suit, it is evident that the charges of corruption, favouritism and nepotism levelled against the respondent mainly concern the allotment of lands situate in Bangalore and other parts of Karnataka at throw away prices to his close relatives and favoured few besides non-resident Indians. In substance the allegation is that the respondent and his family members pocketed more than Rs. 300 crores through fraudulent deals in lands situate in Bangalore and other parts of Karnataka. There can, therefore, be no doubt that most of the oral as well as the documentary evidence regarding the alleged scandalous deals would be available in Karnataka, more particularly in Bangalore, and not at Bombay. If the trial proceeds at Bombay, voluminous evidence will have to be carried to Bombay and several witnesses may have to travel to Bombay to give evidence. Apart from the inconvenience likely to be caused to the witnesses, the petitioner would also be required to incur substantial travel expenses to secure the presence of the witnesses in view of Order XVI, Rule 19 of the Code. And yet, witnesses may be reluctant to travel the long distance to Bombay. Considerable difficulty may also be experienced in securing discovery and inspection of documents. As the petitioner does not deny the publication of the allegations complained of in the plaint, the burden of establishing his defence to the suit will be on him and he may be required to examine a number of witnesses to discharge the same. We have, therefore, no doubt that the petitioner would be handicapped in his defence to the suit if the suit is tried in Bombay. The ends of justice, therefore, demand that the suit be transferred from the Bombay High Court to the City Civil Court, Bangalore, where most of the documentary evidence and the majority of the witnesses are available.

It is not suggested by the respondent in his counter nor was it contended by his counsel that the transfer of the suit will result in substantial prejudice to the respondent. Since the respondent ordinarily resides in Bangalore and was the Chief Minister of Karnataka during the period the various acts of which he is accused took place, the impact of the accusations would be as much if not more on the readers of Bangalore. There would, therefore, be no dearth of readers in Bangalore who may have read the offending matters. We are, therefore, of the opinion that no prejudice, much less substantial prejudice would be caused to the respondent if the suit is transferred as prayed.

In the result the petition succeeds. Suit No. 945 of 1989 (Rama Krishna Hegde v. Dr. Subramaniam Swamy) pending on the Original Side of the Bombay High Court is hereby transferred to the City Civil Court, Bangalore for trial and disposal in accordance with law from the stage at which it is presently pending. The Bombay High Court will transmit the record of the suit to the City Civil Court, Bangalore within four weeks from the receipt of the order of this Court. Parties will bear their own costs.

Reliance was also placed in Indian Overseas Bank, Madras Vs. Chemical Construction Company and Others, wherein the Apex Court at paras 17, 18 and 19 observed as follows:

As compared with Section 24, the power of transfer of a civil proceeding to another Court, conferred under the new Section 25 on the Supreme Court, is far wider. And so is the amplitude of the expression, "expedient in the interest of justice" which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another Court is a question which depends on the circumstance of the particular case.

Although the exercise of this discretionary power cannot be imprisoned within the strait-jacket of any cast iron formula uniformly applicable to all situations. Yet, certain broad propositions as to what may constitute a ground for transfer can be deduced from judicial decisions. One of them is that where two suits raising common questions of facts and laws between parties common to both the suits, are pending in two different courts, it is generally in the interest of justice to transfer one of those suits to the other forum to be tried by the same Court, with consequent avoidance of multiplicity in the trial of the same issues and the risk of conflicting decisions thereon. The instant case falls squarely within this category.

Here, in the two suits, one in the District Court Seoni, Madhya Pradesh, and the other filed by the petitioner in the High Court of Madras, the parties are the same except that in the Madras suit five other persons who are alleged to be partners of the first respondent, herein, and two of whom furnished collateral securities, have also been joined as defendant. Further, the material issues in both the suits are common or interdependent. For instance, issue No. 14 in the Seoni Suit is substantially the same as issue No. 7 framed by the Madras High Court in the suit filed there by the petitioner. The questions involved inter alia, in issues 9, 10, 12, 18, 19 and 20 in the Seoni Suit have a substantial bearing on the decision of issues 1, 2, 6, 8, 9 and 10 framed in the Madras Suit. The basic question commonly arising in each of the two suits concerns the liability of the second respondent and the fourth respondent to make payment as the acceptor of the bills of exchange and the guarantors, respectively, for due payment under those bills. If the two suits are allowed to continue in their original forum there is a possibility of conflicting findings on the question of liability under the Usance Bills and under the guarantees. It is not disputed (we are told) that the payments of the bills were to be made to the petitioner bank at Madras. The evidence in both the suits would mostly be common and locally available at Madras. Transfer of the Seoni suit of Madras High Court will avoid multiplicity in the trial of the common issues and obviate the risk of conflicting decisions. Under the circumstances, it is manifestly "expedient in the interest of justice" that both the suits should be tried by the Madras High Court on its Original Side by the same Judge/ Judges.

On a careful analysis of the facts, the survey numbers covered by the schedule of the suits appear to be different. However, it is stated that certain common issues would arise in the light of the respective stands taken by the parties. This Court is of the considered opinion that the nature of the evidence, which may have to be let in, in both the suits, may be different and hence this Court is not inclined to direct joint trial of both the suits. Hence that portion of the relief prayed for joint trial is hereby negatived. It is made clear in both the suits independent evidence to be recorded and the suits to be decided on their own merits by delivering independent judgments. However, in view of certain commonality of issues which may arise for consideration in these suits, the suit O.S. No. 456 of 2007 on the file of the Additional Senior Civil Judge, Chittoor, is hereby withdrawn and transferred to the file of the Principal Senior Civil Judge, Chittoor, in the light of the fact that yet another suit O.S. No. 129 of 2005 on the file of the Principal Senior Civil Judge, Chittoor, which had been instituted at the former point of time is pending.

The transfer C.M.P is, accordingly, ordered to the extent indicated above. No order as to costs.