Smt. Shanti Devi vs Dr. Neeraj Sardana and Others

B.S. Verma, J.—By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari for quashing the order dated 4.1.2011 passed by District Judge, Dehradun, on the application dated 4.1.2011 (Annexure-4) moved by Respondent Nos. 1 and 2.

Briefly stated, facts of the case, giving rise to this petition are that on 4.1.2011 Respondent Nos. 1 and 2 moved an application before learned District Judge, Dehradun with a prayer to transfer the Rent Control Appeal No. 122/2007, Dr. Neeraj Sardhana v. Smt. Shanti Devi, from the court of Addl. District Judge/VI F.T.C., Dehradun to any other court.

This fact is not disputed that the District Judge, Dehradun, without issuance of any notice to the opposite party, has transferred the appeal to the court of Addl. District Judge/Ist F.T.C., for disposal in accordance with law.

Learned Counsel for the Respondent has contended that as per the provisions of Section 24 of CPC the learned District Judge has power to transfer the case from one court to another.

To appreciate the controversy, Section 24 Sub-clause (1) of CPC is essential to mention here, which reads as under:

General power of transfer and withdrawal.-(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 motion, without such notice, the High Court or the District Court may, at any stage-

(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(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.

A perusal of the above-quoted section makes it abundantly clear that 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 motion, without such notice, the High Court or the District Court may, at any stage, 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. But in the case at hand, the case was not transferred suo moto, it was transferred by the learned District Judge on the application of Respondent Nos. 1 and 2. In that event, before allowing the application, notices were required to be issued to the opposite party. The impugned order has been passed without affording opportunity of hearing to the opposite party, which is against the provisions of Section 24 of CPC It is made clear that if any case is transferred suo moto, in that event, notice to opposite party is not necessary. Therefore, on this sole ground that before transferring the case notice to opposite party was not given, the impugned order deserves to be quashed.

The writ petition is allowed. Order dated 4.1.2011 is set aside. Learned District Judge, Dehradun is directed to decide the application of the Respondent Nos. 1 and 2, afresh, after affording opportunity of hearing to both the parties concerned, as early as possible, preferably, within a period of one month, from the date of production of certified copy of this order.

Both the parties are directed to appear before the learned District Judge, Dehradun, on 28.3.2011.

Certified copy of this order be issued to learned Counsel for the parties on the payment of requisite fees by tomorrow.