Smt. Venkatalakshmamma vs Smt. Shantamma @ Sakamma

Hon''ble Mr Justice Jawad Rahim

Heard on Misc.16954/11 filed u/s 5 of the Limitation Act seeking condonation of delay of 36 days in filing the petition. Although the circumstances explained do not strictly constitute sufficient cause to grant the relief sought, with a view to give one more opportunity to the petitioner, the delay is condoned. Misc. Cvl. 16954/11 is allowed accordingly.

Unsuccessful petitioner is in revision against the order dated 10.2.2011 dismissing the petition u/s 24, C.P.C.

From what the learned counsel for the petitioner has adverted to and also manifest from the records, it reveals that P & SC.70/78 was filed for probate. As there was contest, it was converted to O.S.4670/80 and has since been disposed of by judgment dated 5.10.1984. Thereafter petitioner herein filed O.S.5143/90 to declare the judgment in O.S.4670/80 is not binding on her That suit has also been disposed of by judgment dated 28.2.2004. It is not clear from the averments In the petition, but is on record that Misc.83/08 was filed by the petitioner to set aside the judgment and decree dated 28.2.2004 in O.S.5143/90 raising an independent plea that the judgment will not bind her. Before such action, respondents had filed O.S.87/08 seeking for possession of the property in question on the strength of the earlier judgment and decree. Petitioner is contesting the said suit.

After a lapse of 3 years, he filed the petition u/s 24, C.P.C. requesting the principal district judge to withdraw Misc.87/08 from the file of Addl. City Civil Judge (CCH.23) to be assigned to the file of Additional City Civil & Sessions Judge (CCH.2), to decide it along with Misc.83/08.

On admitted facts, except for O.S.87/08, no other suit is pending. What is pending is Misc.83/08 to declare that the decree passed in O.S.5143/90 is not binding on her.

Section 24, C.P.C. is a provision intended to meet different contingencies. It reads thus:

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 nerd, or of its own motion, without such notice the High Court or the District Court may, at any stage,-

(a) transfer any suit, appeal or other proceedings 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 before it for trial or disposal to any court subordinate to it and

(i) try to 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.

(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 or the purposes 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.

In the instant case, O.S.87/08 is for possession on the strength or the judgment and decree dated 5.10.1984. Misc.83/08 is filed for declaration that the judgment in O.S.5143/90 is not binding on the petitioner herein.

7, It needs to be observed that the order dated 28.2.2004 in O.S.5143/90 is confirming the judgment and decree passed in O.S.4670/80 dated 5.10.1984. Therefore, the lis as brought out in Misc.83/08 is between the parties to the earlier proceeding and the relief sought therein is an independent right for possession. In the circumstances, I do not find there was any ground made out for withdrawal of Misc.83/08 to be tried along with O.S.83/08. The learned district judge was right in dismissing the suit.

In the "result, the petition is dismissed. It is made clear any observations made in this order regarding what transpired in the proceedings is only for the limited purpose of deciding this petition and shall not prejudice the parties in any manner. In the circumstances, Misc. Cvl. 15303/11 for stay does not survive for consideration and is accordingly dismissed.