Sebastian vs R. Prabakaran and Others

T. Mathivanan, J.—After invoking the proviso to Section 24 of the Code of Civil Procedure, 1908, the Petitioner as preferred this petition

with a prayer to withdraw the appeal in A.S. Nos. 46 and 47 of 2009, from the file of the learned Subordinate Judge, Palani (Camp Court at

Kodaikanal) and transfer to any other Subordinate Judge, in Dindigul District for disposal in accordance with law.

The facts which are leading to file this Transfer Civil Miscellaneous Petition may be summarized as follows:

The Respondents 1 and 2 herein had filed a suit in O.S. No. 185 of 1999 against the Petitioner herein and seven others, on the file of the learned

District Munsif-cum-Judicial Magistrate, Kodaikanal for the relief of declaration that the suit property is absolutely belonged to the first

Respondent/first Plaintiff and his wife and also for permanent injunction. The Petitioner herein had also filed a suit in O.S. No. 98 of 2004 against

one Piyula and four others for the relief of declaration that the the Petitioner is the absolute owner of the suit property and also for permanent

injunction against the Respondent herein on the file of the learned Subordinate Judge, Palani and later that suit was transferred and re-numbered as

O.S. No. 98 of 2004, on the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal. Both the suits were tried together and a

common judgment was delivered on 06.07.2009, in which, the suit filed by the Respondents 1 and 2 herein in O.S. No. 185 of 1999 was decreed

as prayed for whereas and the suit in O.S. No. 98 of 2004 was dismissed.

Being aggrieved by the judgment and decree passed in the above said suits, the Petitioner had filed two Review Petitions in I.A. Nos. 254 and

256 of 2009 u/s 114 and Order 47 Rule 1 of the CPC before the learned District Munsif-cum-Judicial Magistrate, Kodaikanal to review the

common judgment rendered in the above said suits. Both the applications were heard and dismissed on 22.04.2010 on the ground of

maintainability and also on the ground of pendency of appeal in A.S. Nos. 46 and 47 of 2009 on the file of the learned Subordinate Judge, Palani

against the judgment and decree in O.S. Nos. 185 of 1999 and 98 of 2004.

Thereafter, the Petitioner had filed Civil Revision Petitions in C.R.P. Nos. 1211 and 1212 of 2010 on the file of this Court on 06.06.2010,

impugning the order and decretal order passed in I.A. Nos. 46 and 47 of 2009. After hearing both sides, this Court had allowed the revision

petitions in C.R.P. Nos. 1211 and 1212 of 2010 after setting aside the order passed in I.A. Nos. 254 and 256 of 2009, dated 22.04.2010 and

remitted the matters back to the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal to dispose them by the end of August

2010.

Records in O.S. No. 185 of 1999 and 98 of 2004 were called for by the learned Trial Judge Viz., learned District Munsif-cum-Judicial

Magistrate, Kodaikanal, from the file of the appellate Court for the disposal of I.A. Nos. 254 and 256 of 2009 afresh. But the learned Subordinate

Judge, Palani did not send the original records. The Trial Judge instead of going through the original records had passed the orders on 31.08.2010,

dismissing both the applications in I.A. Nos. 254 and 256 of 2009.

Aggrieved by the orders passed in I.A. Nos. 254 and 256 of 2009, the Petitioner had preferred a Civil Revision Petition in C.R.P. Nos. 1862

and 1863 of 2010 before this Court. After hearing both sides, this Court had dismissed the revision petitions on 28.09.2010.

That on 04.10.2010, the Petitioner had filed a transfer petition in transfer O.P. No. 101 of 2010, on the file of the learned Principal District

Judge, Dindigul to transfer the appeals in A.S. Nos. 46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani, who is holding

camp-court at Kodaikanal. The learned Principal District Judge, Dindigul after hearing both sides had dismissed the transfer petition in O.P. No.

101 of 2010.

Under this circumstance, the Petitioner has approached this Court with this petition seeking the relief of withdrawal of the appeal suits in A.S.

Nos. 46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani and to transfer the same to any other Subordinate Judge, Dindigul,

for disposing the case in accordance with law.

Mr. A. Hariharan, learned Counsel appearing for the Petitioner while advancing his argument has drawn the attention of this Court to Paragraph

No. 8 of the affidavit filed in support of the petition and submitted that if the appeal suits in A.S. Nos. 46 and 47 of 2009 are allowed to continue

on the file of the learned Subordinate Judge, Palani, the Petitioner would not be able to get a fair justice because from the inception of the appeals,

the attitude and the conduct of the learned Subordinate Judge, Palani are in suspicion as he is having a close nexus with the Respondents. He has

also narrated certain incidents blaming the learned Subordinate Judge, Palani. He has also contended that a petition was filed by the Petitioner to

frame necessary issues in the appeal suits and it was neither taken on file nor returned. Besides this, certain allegations are also levelled against the

learned Subordinate Judge, Palani in paragraph No. 8 of the affidavit.

On the basis of the allegations levelled against the learned Subordinate Judge, Palani in the affidavit filed in support of this petition, this Court

was constrained to call for the remarks from him and in pursuant to the direction of this Court, the learned Subordinate Judge, Palani has also

submitted his remarks refuting all the allegations levelled against him as baseless.

Before we go into the merits of the petition, it may be relevant to note here that the Petitioner herein had already filed a transfer petition in O.P.

No. 101 of 2010, on the file of the learned Principal District Judge, Dindigul to withdraw the appeals in A.S. Nos. 46 and 47 of 2009 from the file

of the learned Subordinate Judge, Palani, who is holding in charge of the camp Court at Kodaikanal and transfer to any other Subordinate Court in

Dindigul District. That petition was dismissed. After dismissal of that petition, the Petitioner has invoked the jurisdiction of this Court and filed this

petition for the very same cause of action which was earlier rejected by the learned Principal District Judge, Dindigul.

Under this circumstance, a prime question is arisen as to whether this second petition, for the very same relief which was rejected in O.P. No.

101 of 2010 by the learned Principal District Judge, Dindigul, is maintainable?

Mr. A. Hariharan, learned Counsel appearing for the Petitioner in support of his contention has placed reliance upon the decision in Munnangi

Ramakrishna Rao Vs. Dr. Vanakuru Venkata Siva Ramakrishna Prasad and Others, . In this case also a similar question was arisen as to ""In view

of Section 115 of the CPC (After Amendment of 1999) can a revision be maintained as against an order passed by District Court u/s 24 of the

Code of Civil Procedure"".

This question has been answered by a Division Bench of Andhra Pradesh High Court in the following manner ""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 CPC

Therefore, we hold that revision against an order passed in a petition filed u/s 24 of the CPC either allowing or refusing to transfer a suit or

proceeding by the District Court is maintainable"".

Obviously, ""a plain reading of Section 24 of the CPC expresses that both the High Court and the District Court are having 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"".

In this connection, the Division Bench of Andhra Pradesh High Court in the above cited decision has also opined that ""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"".

The Division Bench of Andhra Pradesh High Court has also proceed to hold further ""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 of the CPC or under Article 227 of the

Constitution. Therefore, we hold that a petition u/s 24 of the CPC is maintainable even without the order of dismissal of such petition by the District

Court being questioned either u/s 115 of the CPC or under Article 227 of the Constitution of India"".

From the above context it appears that the Division Bench of Andhra Pradesh High Court has held dual views saying that:

(a). ""revision against an order passed in a petition filed u/s 24 of the CPC either allowing or refusing to transfer a suit or proceeding by the District

Court is maintainable.

(b). that a petition u/s 24 of the CPC is maintainable even without the order of dismissal of such petition by the District Court being questioned

either Section 115 of the CPC or under Article 227 of the Constitution of India.

Mr. A. Hariharan, learned Counsel appearing for the Appellant has also, in support of his submissions, placed reliance upon another decision

in Dr. Subramaniam Swamy Vs. Ramakrishna Hegde, . In this case, the Apex Court has held that ""the cardinal principle for the exercise of power

u/s 25 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 do minus lit is 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"".

Ultimately, the Apex Court has held that ""the paramount consideration must be to see that justice accordingly 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"".

In the above cited decision, the question of maintainability of the second transfer application u/s 24 of the CPC before the High Court, when an

earlier petition was dismissed for the same relief by the District Court has not been arisen. The Apex Court has dealt with the matter with regard to

the transfer of the cases as contemplated u/s 25 of the Code of Civil Procedure. Hence, the cardinal principle for transferring the case can be taken

as guideline to decide the question of maintainability of the second transfer petition u/s 24 of the Code of Civil Procedure. The ratio laid down in

the above said decision cannot be applied in the given case on hand.

But the decision in Soroj Bashini Debi Vs. Girija Proshad Bhattacharjee, . This ratio has been laid down. In this case, it is observed that ""a

preliminary objection is taken to the hearing of this Rule on the ground that the learned District Judge having refused to act u/s 24 of the CPC this

Court, will not in the exercise of its concurrent jurisdiction, deal with the same question. This is urged on general principles, especially in matters

criminal, that where two Courts have been given concurrent jurisdiction, the other ought not to exercise the same jurisdiction. This point came up

for consideration in the case of Hari Nath v. Debendra Nath (1). The learned Judges there held that even though the District Judge refused to

exercise the power vested in him by law u/s 24 of the CPC this Court had jurisdiction to act under that Section. Had we felt to bound to

investigate this point we would have tested the correctness of this view, but we think that we over all inferior Courts and our such powers are not

limited by any course taken by the District Judge. We, therefore, propose to examine this case on its mer its"".

On a close reading of the above cited decision, it is thus clear that the Division Bench of Calcutta High Court has held that ""the rule on the

ground that the learned District Judge having refused to act u/s 24 of the Code of Civil Procedure, this Court will not in the exercise of its

concurrent jurisdiction deal with the same question"" is made absolute.

Mr. A. Hariharan, learned Counsel appearing for the Petitioner has also laid emphasis on an another decision in Pushpa Devi Saraf and

another Vs. Jai Narain Parasrampuria and others, . In this case, ""on the transfer petition filed before the District Court, the District Judge had called

for a report from the Presiding Officer. In his report, the Presiding Officer had not only denied the imputations made against him but also explains

and justifies the orders passed by him"".

Under this circumstance, the Apex Court has held that ""a Presiding Officer of a Court should not be put to such an explanation, barring

exceptional circumstances"".

26.""When a petition for transfer of suit is filed making allegations against the Presiding Officer, the report if and when called for from him, should

normally be confined to the allegations made against the impartiality or fairness of the Judge and not with respect to the correctness or otherwise of

the orders passed by him"".

Ultimately, the Apex Court has held that ""we, however, feel that the learned Presiding Officer has been unduly affected by the allegations

levelled against him, as would be evident from his report. In this view of the matter, we are inclined to think that in the interest of the learned

Presiding Officer himself, the suit may be sent to another Court. We, accordingly, request the learned District Judge, Kanpur to transfer the said

suit (Suit No. 537 of 1984 on the file of VII th Additional District Judge, Kanpur) to such other Additional District Judge, as he may designate in

this behalf"".

On the other hand, Mr. C. Vakeeswaran, learned Counsel appearing for the Respondents has vehemently objected to the submissions made

on behalf of the Petitioner and maintained that all the allegations levelled against the learned Subordinate Judge, Palani are invented only for the

purpose of protracting the appeal suits by way of transfer from one Court to another. He has also submitted that there is no necessity for the

transfer of this appeal suits from the file of the learned Subordinate Judge, Palani and he has also urged before this Court that the transfer petition

might be dismissed.

In support of his argument, he has also placed reliance upon the decision of this Court in Manoharan v. Enercon (India) Limited Bombay,

represented by its General Manager and Ors. reported in (2007)1MLJ 420. In this case, ""making allegations against the Presiding Officer of Trial

Court Viz., District Munsif, Dharapuram, the Petitioner had filed Transfer C.M.P. No. 36 of 2006 on the file of the learned Principal District

Judge, Erode and the same was dismissed on 03.04.2006. Aggrieved against that order, the Petitioner had filed C.R.P. No. 586 of 2006. Without

going into the allegations against the Judicial Officer, the High Court has ordered transfer of the suit from District Munsif, Dharapuram to District

Munsif Court, Erode. Temporary Injunction was also granted in I.A. No. 588 of 2006 on 07.07.2006. Aggrieved by the impugned order, the

Respondent has preferred C.M.A. No. 36 of 2006 before the First Additional Subordinate Court, Erode"".

30.""In the meantime, the Petitioner had filed second transfer petition in Transfer O.P. No. 136 of 2006 before District Court, Erode making

allegations against the Judicial Officer and praying for transfer of C.M.A. No. 36 of 2006 to either the District Court or Fast Track Court of

Erode. The said petition was dismissedbythelearnedPrincipalDistrictJudge,Erodeon10.11.2006"".

Again, the Petitioner had come forward with another transfer original petition before this Court. On hearing both sides, the learned Single

Judge of this Court has held that ""a party aggrieved by the dismissal of transfer by the District Court cannot file a petition for transfer before the

High Court on the same ground, but can file a revision under Article 227 of the Constitution of India. With this observations, that petition was

dismissed"".

On coming to the instant case on hand, the Petitioner after making allegations against the learned Subordinate Judge, Palani holding Camp-

Court at Kodaikanal had originally filed a transfer petition in Transfer O.P. No. 101 of 2010, on the file of the learned Principal District Judge,

Dindigul. That petition was dismissed. Again the Petitioner has approached this Court with this transfer petition for the second time seeking the

very same relief, transfer of the appeal suits in A.S. Nos. 46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani to any other

Subordinate Judge''s Court at Dindigul District.

This Court has carefully gone through the reasons assigned for transferring the above said appeal suits from the learned Subordinate Judge,

Palani. The Petitioner had made allegations against the learned Subordinate Judge, Palani about his impartiality or fairness. It is also alleged that the

Respondents 1 and 2 are having close nexus with the learned Subordinate Judge and used to get access in his Chamber freely and spoke with him

for several hours. Besides this, it is also alleged that the learned Subordinate Judge whenever comes to Kodaikanal to attend the Camp-Court

used to come along with the Respondents 1 and 2 in their car.

As already discussed, a report was called for from the learned Subordinate Judge, Palani pertaining to the allegations levelled against him.

In his report, he has also strongly denied the imputations.

It must be borne in mind that making allegations as against the Presiding Officer is not a simple one, but it is a very serious one which is having

direct impact on the future carrier of the Presiding Officer.

Even, in accordance with the submissions made by the learned Counsel for the Petitioner, if an order of transfer is effected transferring the

appeal suits in A.S. No. 46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani, definitely, as rightly observed in Manoharan v.

Enercon (India) Limited Bombay, represented by its General Manager and Ors. reported in (2007)1MLJ 420, it would make indelible stigma on

the reputation and integrity of the Presiding Officer.

Keeping in view of the above fact and on considering the submissions made on behalf of both sides, this Court is not inclined to allow this

petition on the ground that the second transfer petition filed u/s 24 of the CPC is not maintainable, when an earlier transfer petition u/s 24 of the

CPC was rejected by the learned Principal District Judge, Dindigul District.

Accordingly, the Transfer Original Petition is dismissed. Consequently, connected miscellaneous petition is also closed. There is no order as to

costs.