w w w . L a w y e r S e r v i c e s . i n



K.R. Shiva Kumar & Others v/s G.M. Virupakshappa & Others

    Civil Revision Petition No. 318 of 2016 (C-MISC)

    Decided On, 28 October 2016

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B. VEERAPPA

    For the Petitioners: A. Madhusudhana Rao, Advocate. For the Respondents: M.R. Hiremathad, A. Niranjan Kumar, Advocates.



Judgment Text

1. The present petitioners are the plaintiffs in O.S.No.77 of 2015 pending on the file of the I Additional Senior Civil Judge, Davanagere, and are defendants in O.S.No.628 of 2014 pending on the file of the Principal Civil Judge, Davanagere.

2. The petitioners filed Civil Misc. Petition No. 31 of 2015 under Section 24 of the Code of Civil Procedure, 1908 on the file of the Principal District and Sessions Judge at Davanagere, to transfer O.S.No.628 of 2014 pending on the file of the Principal Civil Judge, Davanagere, to the Court of I Additional Senior Civil Judge, Davanagere, to club and try along with O.S.No.77 of 2015, contending that the respondent 1-G.M. Virupakshappa filed suit in O.S.No.628 of 2014 for declaration and consequential relief of injunction in respect of ‘A’ Schedule property against the petitioners herein. The petitioners/defendants in O.S.No.628 of 2014 seriously contested the suit by filing written statement. It is also further case of the petitioners before the District Court that they filed O.S.No.77 of 2015 on the file of the I Additional Senior Civil Judge, Davanagere, for declaration, possession and mandatory injunction and for damages in respect of ‘A’ and ‘B’ Schedule properties.

3. The 1st respondent-1st defendant filed written statement and seriously contested the suit. It is further stated that the contesting parties in both the suits are one and the same, subject-matter of both the suits are one and the same, evidence to be recorded is common and the documents to be marked are also common. Since common questions of facts and law are involved and the issues involved are one and the same, it is just and necessary to club both the suits for common trial. Therefore, O.S.No.628 of 2014 pending on the file of the Principal Civil Judge, Davanagere, is required to be transferred to the Court of the I Additional Senior Civil Judge, Davanagere, where O.S.No.77 of 2015 is pending. Therefore, petitioners herein filed CMP No. 31 of 2015 under Section 24 of the Code of Civil Procedure before the Principal District and Sessions Judge, Davanagere for transfer and clubbing of O.S.No.628 of 2014 and O.S.No.77 of 2015.

4. The present respondents filed objections to the said petition contending that the petition is filed only with a view to procrastinate the proceeding before the Trial Courts. No doubt, the suits are filed and are pending before two different Courts. The parties are not same in bath the suits; respondents 2 and 3 are not parties in O.S.No.628 of 2014. Therefore, contention that the parties are same and the subject-matter is one and the same, is false. It is further contended that the subject-matter of bath the suits are different. In O.S.No.628 of 2014, relief in respect of settled possession of respondent 1 and the relief in respect of O.S.No.77 of 2015 are not at all necessary for deciding the matter in earlier proceedings. If bath matters are clubbed, it will only clutter the suits much mare and further complicate the matters, there fare, sought for dismissal of the petition.

5. The learned District Judge, after hearing bath the parties, by the impugned order dated 15-7-2016, rejected the petition only on the ground that the present respondent I-plaintiff in O.S.No.628 of 2014 is going to lose his right of appeal before the Senior Civil Judge, Davanagere. Therefore, the present revision petition is filed.

6. I have heard the learned Counsel for the parties to the lis;

7. Sri A. Madhusudhana Rao, learned Counsel for the petitioners contended that, admittedly the matter in issue in bath the suits is substantially same and contesting parties are also same. Therefore, the District Court ought to have exercised power under Section 24 of the Code of Civil Procedure to avoid multiplicity of the proceedings. He further contended that the Court below has proceeded to dismiss the petition filed under Section 24 of the Code of Civil Procedure erroneously, without noticing the fact that for the purpose of deciding as to whether bath the suits have to be transferred to one Court, the main consideration will be as to whether the controversies involved are same and contesting parties are same. In this view of the matter, the District Court has not exercised its jurisdiction as contemplated under Section 24 of the Code of Civil Procedure. Learned Counsel further contended that the District Court rejected the petition only an the ground that the respondent who is plaintiff in O.S.No.628 of 2014 will lose his right of first appeal be fare the Court of the Senior Civil Judge, is erroneous. Therefore, he sought to set aside the order passed, by the District Court by allowing the present civil revision petition.

8. Per contra, Sri M.R. Hiremathad, learned Counsel for the 1st respondent sought to justify the impugned order passed by the District Judge and strenuously contended that the suit in O.S.No.628 of 2014 filed by the respondent on the file of the Principal Civil Judge, Davanagere, is only for bear injunction and the suit in O.S.No.77 of 2015 filed by the petitioners an the file of the I Additional Senior Civil Judge, Davanagere, is for declaration and possession and mandatory injunction. The cause of action are entirely different. There are other parties in the suit and also contended that if O.S.No.628 of 2014 is transferred to the Court of the I Additional Senior Civil Judge, Davanagere, then, the plaintiff in the said suit will lose his right of appeal and therefore, he sought to dismiss the revision petition.

9. In view of the rival contentions urged by the learned Counsel for the parties, the only point that arises for consideration is:

'Whether the District Judge is justified in rejecting the petition filed under Section 24 of the Code of Civil Procedure, in the facts and circumstances of the present case?'

10. I have given my thoughtful consideration to the arguments advanced by the learned Counsel for the parties and perused the entire material on record, carefully.

11. It is undisputed fact that the petitioners filed O.S.No.77 of 2015 on the file of the I Additional Senior Civil Judge, Davanagere, for declaration of title, possession and mandatory injunction in respect of the suit schedule properties. It is also not in dispute that the respondent herein filed suit in O.S.No.628 of 2014 on the file of the Principal Civil Judge, Davanagere, for permanent injunction in respect of suit Schedule ‘A’ property.

12. It is also not in dispute that in both the suits, evidence is yet to commence. The present petitioners who are plaintiffs in O.S.No.77 of 2015 filed Civil Misc. Petition No. 31 of 2015 under Section 24 of the Code of Civil Procedure on the file of the Principal District and Sessions Judge, Davanagere, who is the Competent Authority to pass orders under Section 24 of Code of Civil Procedure to transfer O.S.No.628 of 2014 pending on the file of the Principal Civil Judge, Davanagere, to the Court of the I Additional Senior Civil Judge, Davanagere, where O.S.No.77 of 2015 is pending, and club both the suits for common trial, contending that the contesting parties in both the suits are same, the injunction sought for is in respect of the same property in both the suits. Admittedly, the contesting defendants filed written statement contending that the matter has to be adjudicated based on oral and documentary evidence to be adduced and produced by the respective parties to the lis and it was further resisted only on the ground that he will lose his right of appeal before the Lower Appellate Court.

13. Section 24 of the Code of Civil Procedure, reads thus:

'24. 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 own 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) 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.'

14. By reading of Section 24 of Code of Civil Procedure, it is 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 own 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, unless, the transfer of case from one Court to another indirectly casts doubt on the competence and integrity of the Judge from whom the case is sought to be transferred, it can exercise such power. Admittedly, in the present case, petition is filed before the District Judge who is the Competent Authority to exercise powers under Section 24 of the Code of Civil Procedure.

15. It is not in dispute that in both the suits, the contesting parties are the present petitioners and respondents, for the reliefs sought for respectively in their respective suits and it is also not in dispute that the subject-matter of suits are one and the same. If O.S.No.628 of 2014 pending on the file of the Principal Civil Judge, Davanagere, is transferred to the Court of the I Additional Senior Civil Judge, Davanagere, as sought for, no prejudice will be caused to the present respondent/plaintiff in O.S.No.628 of 2014. The only ground urged by the respondent before this Court and the District Court is that he will lose the right of appeal and same is accepted by the District Court is erroneously. If the suit of the plaintiff in O.S.No.628 of 2014 is tried and disposed of before the I Additional Senior Civil Judge, definitely, plaintiff in O.S.No.628 of 2014 will have a right of appeal before the District Court. Therefore, the contention raised by the learned Counsel for the respondent that he will lose the right of appeal, cannot be accepted.

16. This Court, while considering the provisions of Section 24 of the Code of Civil Procedure in the case of Channaveerappa v Channabasappuv held as under:

'5. Therefore, what remains to be considered is whether a District Judge or the High Court while exercising powers under Section 24 of the CPC should take note of the date on which the two suits were filed and thereby form an opinion as to the need for transfer. The language of Section 24 of CPC does not give room for such an approach. The inhibition to exercise that power is to be found in the Section itself and not from other sources.

6. I have already taken the view in CR.P.No.743 of 1983, disposed of on 17-11-1988, that the power to exercise is two-fold. In this case, an order has been passed on the petition filed by the plaintiff in the Court of the Civil Judge; respondent has been heard. Therefore, there is no procedural defect in the order passed. The only inhibition to exercise power under Section 24 of CPC is the Court to which the suit is transferred must be competent to try it. In the scheme of Karnataka Civil Courts Act, 1964, the Court of the Munsiff is the Court of lowest grade and that of the Civil Judge is of superior grade and also in certain matters, the latter Court exercises appellate jurisdiction over the judgments and orders of the Munsiff, Section 15 of the CPC has been held to be a Rule of convenience by a catena of decisions to which I have referred in C.R.P.No.743 of 1988 (supra). Therefore, a superior Court is presumed to have jurisdiction to try a suit even though the Karnataka Civil Courts Act may provide different jurisdiction based on pecuniary value of the claim on a lower grade Court. If the Munsiff cannot try the suit at Shikaripur, that is, the suit filed by Channabasappa-the respondent herein, then the only course left open to the District Judge, for convenience of disposal of both the suits, is to transfer the suit filed by the petitioner herein to be tried by the Civil Judge to avoid duplication of proceedings. So long as the order, transferring is to serve the purpose of meeting the ends of justice, the fact that the suit was filed earlier by the petitioner in the Court of the Munsiff at Shikaripur is not a restraint which the District Judge was bound to countenance.'

17. The Hon’ble Supreme Court, in the case of Durgesh Sharma v Jayshree ((2008)9 SCC 648) has held as under:

'46. Having considered the scheme of the Code as amended from time to time, in our judgment, the law relating to transfer of cases (suits, appeals and other proceedings) is well-settled. It is found in Sections 22 to 25 of the Code and those provisions are exhaustive in nature. Whereas Sections 22, 24 and 25 deal with power of transfer, Section 23 merely provides forum and specifies the Court in which an application for transfer may be made. Section 23 is not a substantive provision vesting power in a particular Court to order transfer. '

18. The Hon’ble Supreme Court, in the case of Jitendra Singh v Bhanu Kumari and Others ((2009)1 SCC 130) has held as under:

'8. The reasons which weighed with the High Court to direct transfer do not appear to be germane warranting an order of transfer.

9. The purpose of Section 24 of CPC is merely to confer on the Court a discretionary power. A Court acting under Section 24 of CPC mayor may not in its judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by a party, the Cour

Please Login To View The Full Judgment!

t is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the Court must act judicially in ordering a transfer on the application of a party. In the instant case the reason which has weighed with the High Court for directing transfer does not really make out a case for transfer.' 19. In view of the aforesaid reasons, the point raised in the present Civil revision petition has to be answered in the negative holding that the District Court is not justified in rejecting the petition filed under Section 24 of the Code of Civil Procedure. The Legislature, while enacting Section 24 of the Code of Civil Procedure thought fit that in view of the said Section, multiplicity of the proceedings can be avoided so as to ensure speedy justice to the parties and to avoid delay and conflicting judgments in respect of same property between the same parties in two different suits. 20. In view of the aforesaid reasons, the civil revision petition is allowed. The order dated 15th July, 2016 passed in Civil Miscellaneous Petition No. 31 of 2015 on the file of the Principal District and Sessions Judge, Davanagere, is set-aside. Application under Section 24 of the Code of Civil Procedure is allowed. O.S.No.628 of 2014 pending on the file of the Principal Civil Judge, Davanagere, is transferred to the Court of the I Additional Senior Civil Judge, Davanagere, where O.S.No.77 of 2015 is pending for clubbing and trying both the suits, together. The Trial Court shall decide the suits purely on the basis of the oral and documentary evidence adduced and to be produced by both the parties, in accordance with law.
O R