This Civil Revision Petition vs 2016 On The File Of The Court Of ...
2022 Latest Caselaw 2207 AP

            THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI

                  Civil Revision Petition No.625 of 2019

ORDER:

This civil revision petition, under Article 227 of the Constitution

of India by the unsuccessful petitioners-plaintiffs in O.S.No.131 of

2016 on the file of the Court of Junior Civil Judge, Rajole, assailing the

orders, dated 26.11.2018, of the learned Principal District Judge, East

Godavari, at Rajahmundry, passed in Tr.OP.No.524 of 2017.

2. I have heard the submissions of Sri K.S. Murthy, learned counsel

for the revision petitioners assisted by Sri Vyas, learned counsel, and

Sri T.V.Jaggi Reddy, learned counsel for the 1st respondents.

Respondents 2 to 6 are shown to be not necessary parties to this

revision petition.

3. The case of the petitioners, in brief, is as follows:

Bolla Venkata Satyanarayana Murthy and Bolla Venkata

Varalakshmi are husband and wife. They were blessed with a son, 1st

respondent and a daughter, 4th respondent. Later, Bolla Venkata

Varalakshmi died. The marriage of the petitioner with Bolla Venkata

Satyanarayana Murthy was performed on 17.03.1976. They lived

happily till the death of Bolla Venkata Satyanarayana Murthy on

09.07.2009. The respondents 4 & 5, Bikkina Manorama and Bikkina

Veeraswamy, filed O.S.No.131 of 2016 on the file of the Court of

Principal Junior Civil Judge, Razole, for permanent injunction and

obtained ad interim injunction against the petitioner. They took

possession of the properties of Bolla Venkata Satyanarayana Murthy

forcibly. Bolla Venkata Satyanarayana Murthy partitioned his

BSB, J C.R.P.No.625 of 2019

properties under partition deed, dated 27.10.1964. The petitioner filed

O.S.No.30 of 2017 on the file of the Court of II Additional District

Judge, Amalapuram, for partition and separate possession of her share

in the estate of her husband, as the respondents 4 & 5 created a false

Will and obtained injunction in O.S.No.131 of 2016.

(b) The property in dispute in both the suits, the evidence to be lead

and the documents to be filed are all one and the same. Hence, to

avoid conflicting judgment and multiplicity of proceedings, it is just

and necessary to club both the suits and to record evidence in

O.S.No.30 of 2017 on the file of II Additional District Judge's Court,

Amalapuram. The petitioner, therefore, prayed for transfer of

O.S.No.131 of 2016 on the file of the Court of Principal Junior Civil

Judge, Rajole to the Court of II Additional District Judge, Amalapuram,

for being heard and tried together with O.S.No.30 of 2017.

4. The 1st respondent filed counter, which was adopted by

respondent Nos.2 to 5 in toto. The averments, in brief, of the counter

are as follows:

Respondents 4 and 5 filed a suit in O.S.No.131 of 2016 for grant

of permanent injunction against Merla Jogayamma @ Padmavathi, who

filed the transfer petition as well as the suit in O.S.No.30 of 2017. In

O.S.No.131 of 2016, injunction was granted in respect of the

properties mentioned therein and the petitioner herein who is the

defendant in the said suit was set ex parte. The petitioner, with

incorrect surname, filed I.A.Nos.1105 & 1106 of 2016 in the suit as

well as injunction application respectively. Respondents 4 & 5

contested those applications which were allowed. Respondents 4 & 5

preferred C.R.P.No.5123 of 2017 and 5305 of 2017 against the

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interlocutory orders passed in the above applications and both the

revisions are allowed, by orders dated 04.11.2017. The scope of

enquiry, the issues and the reliefs in O.S.No.131 of 2016 and

O.S.No.30 of 2017 are quite different. The parties are also not the

same. The petitioner has no right to ask transfer of the suit. The

petition is liable to be dismissed.

5. The 6th respondent filed counter which was adopted by the 7th

respondent. The averments, in brief, are as follows:

This respondent is not a party to O.S.No.131 of 2016. This

respondent was added as 6th defendant in O.S.No.30 of 2017. The

parties and the reliefs in both the suits are not same and the scope of

enquiry in both the suits is also different. There are no grounds. The

petition is liable to be dismissed.

6. On the basis of the above pleadings, the Court below allowed the

petition and ordered for withdrawal of O.S.No.131 of 2016 on the file

of Junior Civil Judge, Razole and transferred the same to the file of II

Additional District Court, Amalapuram, to be tried along with

O.S.No.30 of 2017.

7. At the hearing, learned counsel for the parties reiterated their

respective contentions.

8. The revision petitioners vehemently contend that that the suit

cannot be transferred from the Court of Junior Civil Judge as the

petition filed for setting aside the ex parte order in O.S.No.131 of 2016

is still pending.

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9. On the other hand, learned counsel for the respondents

submitted that the transferee Court can hear such application as well,

after receipt of the file, on transfer.

10. The contention in this regard taken by the revision petitioners is

not tenable. Irrespective of the petition filed to set aside the ex parte

order against the defendants, a defendant is always permitted to

participate in the suit in further proceedings. The defendant can resist

the suit by showing that the plaintiff is not entitled to the reliefs

claimed, though the written statement is not permitted in the event of

declining to set aside the ex parte order passed against the

defendants. As such, there is no merit in contending that the suit

cannot be transferred since petition to set aside the ex parte order is

pending.

11. Learned counsel for the revision petitioners, placing reliance on

the decision of the Supreme Court in Kulwinder Kaur v. Kandi

Friends Education Trust1, contended that the following facts are to

be taken into account in an application filed under Section 24 CPC.

"24. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public

(2008) 3 Supreme Court Cass 659

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interested in the litigation; 'interest of justice' demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order."

12. Learned counsel for the revision petitioners further placed

reliance on a decision of this Court in Burma Gnaneshwar Rao v.

E.Rajamani2 in support of his contention that transfer of a suit

cannot be sought on the ground that the documents to be produced by

either party are common in both the suits. In the said case, it is the

only ground taken for transfer of suits, whereas, in the present case,

question of facts are also common as can be seen from the pleadings.

Learned counsel also placed reliance on the decision of this Court in

Muthe Rajesham v. Bakam Lingaiah3, wherein it was held as

follows:

"In the absence of such prima facie identity, it cannot be held that both the suits should be tried together and identity of the property can be decided at the time of disposal of the suits. The title of the property in a suit for injunction should be decided for a limited purpose of consideration of granting decree, whereas the title in a suit for declaration should be decided finally based on evidence. So, the reliefs in both the suits cannot be held to be identical. The suit filed by the petitioners is reserved for judgment and if a decree is passed in favour of one party, it cannot affect the decree that is going to be passed in a suit for declaration of title."

2003 (3) APLJ 128 (H.C)

(2015) 1 ALD 448

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The decision of the Supreme Court in Kulwinder Kaur v. Kandi

Friends Education Trust (supra) makes it clear that each case is to

be examined in the light of its facts and circumstances to examine the

applicability of any of the grounds mentioned therein.

13. The very purpose of transferring a suit from one Court to

another Court is to avoid conflicting decisions on the same fact(s) or

points of law and also to avoid repetition of the same evidence before

different Courts. In the present case, the very case of the plaintiffs

and the defendants in O.S.No.131 of 2016 pleaded is the same in

O.S.No.30 of 2017, though the reliefs claimed are different. Thus, the

questions of fact involved are one and the same and thereby, the

evidence to be let in would the same in both the suits. Since the

reliefs are different in both the suits, naturally the issues involved

would be different. However, the facts to be decided in both the suits,

being common, it is necessary to hear both the matters together, and,

if further necessary, by a common trial. It is settled law that in a

petition under Section 24 CPC, a Court can only order for transfer of a

suit and it is always for the transferee Court to decide whether

common trial is to be taken or not.

14. It is also contended that the properties in both the suits are not

one and the same and thus the scope of both the suits is different and

issues are also different. This argument is not acceptable for the

reason that though all the properties involved in the suits for partition

in O.S.No.30 of 2017 are not shown in O.S.No.131 of 2016, but all the

properties, except one shown in O.S.No.131 of 2016, are properties

shown in O.S.No.30 of 2017. The trial Court has also examined, in

detail, on this submission and clearly mentioned how both the suits are

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common by giving details. It is also evident from the comparison of

schedule of properties in both the suits. It is further contended that

the cause of action in both the suits is different and distinct. Though

the cause of action is different to some extent, they are always

pleaded in relation to the reliefs claimed. In sum and substance, the

material facts based on which the claims are made by both parties are

same in both suits. Thus, the petition cannot be opposed on this

ground.

15. Thus, in the present case, on perusal of the plaints and written

statements in both the suits, since it is found that there are so many

factors to be common in both the suits, this Court also felt that both

the suits be tried by one Court.

16. In the result, the Civil Revision Petition is dismissed.

There shall be no order as to costs.

Miscellaneous petitions, if any, pending in this revision shall

stand closed.

________________ B.S BHANUMATHI, J 02nd May, 2022 RAR