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trcmp_674 & 681_2017
AVR,J
THE HON' BLE SRI JUSTICE A. VENKATESHWARA REDDY
Transfer Civil Miscellaneous Petition Nos.674 and 681 of 2017
COMMON ORDER:
Tr.CMP.No.674 of 2017 and Tr.CMP.No.681 of 2017 are filed
seeking to withdraw O.S.No.71 of 2016 and O.S.No.72 of 2016,
respectively, pending on the file of learned Senior Civil Judge, Huzurabad,
and to transfer the same to the file of Family Court-cum-Additional
District Court, Karimnagar. Sri A. Sanjeeva Reddy has filed both these
transfer petitions.
The main averments of the affidavit filed by the petitioner in
support of these transfer petitions are that he is a practicing advocate,
and that he has filed a suit for perpetual injunction against the
respondents in O.S.No.97 of 2016, pending on the file of Judge, Family
Court, Karimnagar, against the respondents. In respect of the same subject matter, two other suits O.S.No.71 of 2016 and O.S.No.72 of 2016 are filed by the respondent herein on the file of learned Senior Civil Judge, Huzurabad.
The respondents in O.S.No.71 of 2016 and O.S.No.72 of 2016 are husband and wife respectively. The respondents are residents of Husnabad of Karimnagar District and the travel time from Karimnagar to Husnabad and Huzurabad to Husnabad is almost the same. Further, the public transport system of Karimnagar is almost accessible, the suit filed by him is pending before the Family Court, Additional District Court, Karimnagar. Though he has filed Transfer O.P.No.636 of 2016 and 637 of 2016 on the file of learned Principal District Judge, Karimnagar, seeking transfer of O.S.No.71 of 2016 and O.S.No.72 of 2016 respectively pending on the file of learned Senior Civil Judge, Huzurabad, for trial along with O.S.No.97 of 2016, pending on the file of Judge, Family Court- 2
trcmp_674 & 681_2017 AVR,J cum-Additional District Court, Karimnagar, the learned Principal District Judge, has dismissed both the O.Ps on 22.07.2018, and therefore, the present transfer petitions are filed.
The respondent did not choose to file any counter before this Court. But before the Principal District Court, the respondents have filed counter.
The averments of the counter filed in transfer O.P.No.636 of 2016, and 637 of 2016 would establish that O.S.Nos.71 of 2016 and 72 of 2016 are filed on the file of learned Senior Civil Judge, Huzurabad, for specific performance of agreement of sale dated 30.05.2015 in respect of House Plot in an extent of 342 Square Yards, in Survey No.233 of Husnabad Town and Mandal, executed by the transfer petitioner herein in favour of G. Veeresham (respondent in Tr.CMP No.674 of 2017).
Whereas O.S.No.97 of 2016 pending on the file of Family Court- cum-Additional District Court, at Karimnagar, is filed by the transfer petitioner against the respondents for perpetual injunction in respect of Schedule A to C properties which are notified plots. Though the parties to the proceedings are one and the same, the subject matter involved in the suits is not the same. They expressed inconvenience that if O.S.Nos.71 and 72 of 2016 are transferred they would suffer irreparable loss and injury.
It is further alleged that the respondents are aged persons and they are suffering from certain ailments and it is not convenient for them to attend the Court at Karimnagar if the transfer petitions are allowed. The learned Principal District Judge, Karimnagar, after considering the material on record, vide orders dated 22.08.2017, dismissed both the transfer petitions with the observation that one Court has jurisdiction under Code of Civil Procedure to try the suit, the plaintiff as Dominus Litis has right to choose the Court and try the suit convenient to him and mere 3 trcmp_674 & 681_2017 AVR,J convenience of the parties may not be enough to exercise the power but it must also be shown that the trial in the chosen forum will result in denial of justice, and accordingly the learned Judge dismissed both the transfer petitions.
Now, the learned counsel for the petitioners has filed Memos on 01.10.2021 stating that he has filed transfer petitions before this Court seeking transfer of the suits O.S.Nos.71 of 2016 and 72 of 2016 to the FamilyCourt-cum-Additional District Court, Karimnagar, and also explained the status stating that in both the suits, written statements are filed, trial not yet commenced and no witness is examined.
Section 24 of Code of Civil Procedure deals with general power of High Court and District Court for transfer and withdrawal of cases.
"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) re-transfer the same for trial or disposal to the Court from which it was withdrawn."
The power under Section 24 of CPC has to be exercised with due care and caution and circumspection.
In the case on hand, the petitioner has already filed transfer petitions before the learned Principal District Judge and both the transfer petitions stated above were dismissed by the learned Judge with the observation that it is not the convenience of one party or both the parties 4 trcmp_674 & 681_2017 AVR,J that shall be taken into consideration while passing orders to withdraw a case and make over or transfer to another Court.
It is a fact that the plaintiff, as Dominus Litis, has right to choose Court and the defendant cannot demand that suit be tried in any particular Court convenient to him but at the same time, convenience of the parties where some other litigation is also pending may have to be considered.
Learned counsel for the petitioner has placed reliance on the judgment of Hon' ble Supreme Court in Dr. Subramanyam Swamy v. Ramakrishna Hegde1. Considered the principles laid down in the above judgment. Both the respondents are shown as residents of Husnabad and the suits filed by the respondents are for specific performance of agreement of sale in respect of 1342 Square yards of house plots in Survey No.233 in O.S.No.71 of 2016 and 5 guntas in Survey No.233 in O.S.No.72 of 2016.
As seen from the boundaries to the properties described, the suit filed by the petitioner in O.S.No.97 of 2016, it is the very same property for which the suits for specific performance of agreement of sale were filed. Thus, the property and parties involved in all the three suits are one and the same though the reliefs sought for are specific performance of agreement and for perpetual injunction. Therefore, while considering the principles laid in the above decision, scheme of Section 24 of CPC, in the larger interest of justice, to avoid multiplicity of proceedings, it is just and necessary that all the three matters are to be heard by a single Officer so that divergent views can be avoided in such matters. Though the issues in suit for injunction and suit for specific performance are different, as the subject matter involved and the parties are one and the 1 AIR 1990 SC 113 5 trcmp_674 & 681_2017 AVR,J same, and the trial not yet begun, I find justification in the request of the petitioner that all the matters to be tried by one Court.
Further, even if the convenience of the parties is considered, it is averred by the petitioner that the distance from Husnabad to Huzurabad and Huzurabad to Karimnagar, is one and the same and there is better connectivity between Huzurabad to Karimnagar than Huzurabad to Husnabad. It is not in view of the demand of any of the parties that the matter to be tried at one Court, but the convenience of the parties to avoid multiplicity of proceedings and to avoid divergent views, it is felt that all the matters be tried by one Court.
Thus, for the reasons stated above, I deem it fit to withdraw O.S.No.71 and 72 of 2016 pending on the file of learned Senior Civil Judge, Huzurabad, and transfer the same to the Family Court-cum- Additional District Court, at Karimnagar, where O.S.No.97 of 2016 is pending.
In the result, the transfer petitions are allowed, and the O.S.No.71 of 2016 and O.S.No.72 of 2016 pending on the file of learned Senior Civil Judge, Huzurabad, are hereby withdrawn and transferred to the Family Court-cum-Additional District Court, at Karimnagar, where O.S.No.97 of 2016 filed by the petitioner is pending, for disposal in accordance with law. No costs. Interlocutory applications, if any pending in these transfer petitions, shall stand closed.
________________________ A. VENKATESHWARA REDDY, J 08th November, 2021 ksm 6 trcmp_674 & 681_2017 AVR,J THE HON' BLE SRI JUSTICE A. VENKATESHWARA REDDY Transfer Civil Miscellaneous Petition Nos.674 and 681 of 2017 08th November, 2021 KSM