This Transfer Civil ... vs Bharat
2022 Latest Caselaw 8993 AP

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     THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

 TRANSFER CIVIL MISCELLANEOUS PETITION NO.21 OF 2022


ORDER:-

      This Transfer Civil Miscellaneous Petition is filed by the

petitioner, who is the defendant in Original Suit No.29 of 2018,

on   the     file   of   learned   XIII   Additional   District   Judge,

Narasaraopet, Guntur District, with a prayer to transfer the said

case to the Court of II Additional District Judge, Guntur to be

tried along with Original Suit No.371 of 2018, in the interest of

justice.

      2)      The case of the petitioner, in brief, which is

necessary to be extracted here, insofar as disposal of this

petition is concerned is that the respondent filed O.S.No.29 of

2018, on the file of learned XIII Additional District Judge,

Narasaraopet, Guntur District, against the present petitioner for

recovery of amount on the strength of three promissory notes.

The respondent did not disclose the true facts in the said suit.

In fact, the petitioner filed O.S.No.371 of 2018, on the file of II

Additional District Judge, Guntur, against the plaintiff in

O.S.No.29 of 2018. In O.S.No.29 of 2018 the respondent

alleged that the petitioner borrowed a sum of Rs.5,00,00,000/-

on 28.11.2014, Rs.4,28,55,000/- on 28.11.2014 and further a

sum of Rs.2,89,35,000/- on 04.12.2014 and that later, she

repaid Rs.90,00,000/-, Rs.35,00,000/-, Rs.10,00,000/- towards

part discharge of the said debt. With the same averments,

respondent filed a complaint under Section 138 of Negotiable

Instruments Act i.e., C.C.No.329 of 2018 on the file of the II

Additional Junior Civil Judge, Narasaraopeta. The present

petitioner filed O.S.No.371 of 2018 before the II Additional

District Judge, Guntur with a prayer to cancel two sale deeds.

These two sale deeds are matching and corresponding to the

borrowings, dated 28.11.2014 and 04.12.2014. The subject

matter in the suit filed by the petitioner in O.S.No.371 of 2018

and in O.S.No.29 of 2018 filed by the respondent are one and

same. Petitioner filed O.S.No.371 of 2018 which is a

comprehensive in nature. In fact, the plaintiff in O.S.No.29 of

2018 obtained two sale deeds from the petitioner on the date of

execution of the promissory notes without paying sale

consideration and by playing fraud and misrepresentation by

colluding with the husband of the petitioner. Petitioner has to

let in evidence in both the suits to explain how the respondent

played fraud on her. The suit filed by the petitioner is praying

for a declaratory decree. If O.S.No.29 of 2018 is allowed to be

tried independently, true facts will not come into light and there

is every possibility that in both the trials there is ever likelihood

of getting conflicting judgments. The nature of the evidence to

be let in and the witnesses that are to be examined in both the

suits are one and same. In fact, the present petitioner filed a

detailed written statement in O.S.No.29 of 2018 narrating about

the pendency of the suit in O.S.No.371 of 2018 filed by the

petitioner to cancel the sale deeds. The trial Court is insisting

the petitioner to proceed with the trial upon the pressure applied

by the respondent. The respondent is very eager to get the

money suit decreed to take upper hand and he is avoiding to the

face trial in O.S.No.371 of 2018. Hence, the petition.

3) The respondent got filed a counter denying the

averments in the petition and contending in substance that in

the suit filed by the plaintiff in O.S.No.371 of 2018 on the file of

the II Additional District Judge, Guntur, he is shown as third

defendant. O.S.No.29 of 2018 is pending before the XIII

Additional District Judge, Narasaraopeta and O.S.No.371 of

2018 is pending before the II Additional District Judge, Guntur.

Both the Courts are the subordinate to the District Court as per

Section 3(a) of 24 of Code of Civil Procedure ("C.P.C." for short).

Thus, the petition for transfer of O.S.No.29 of 2018 before this

Court is not maintainable, as this type of petition has to be filed

before the District Court at Guntur. He filed O.S.No.29 of 2018

for recovery of huge amount under the three promissory notes

executed by the petitioner. The petitioner filed written statement

admitting about the execution of three promissory notes and

passing of consideration thereunder. She took a plea that her

husband prevailed upon her to execute these three promissory

notes. Now, it is not open to the petitioner to contend that the

beneficiary of the promissory notes was someone else. She is

dragging on the trial of the said suit of the respondent. Even

she filed an application in I.A.No.86 of 2020 in O.S.No.29 of

2018 under Order VII, Rule 11 of C.P.C. to reject the plaint and

ultimately it is dismissed for default on 01.04.2022. She did not

take any steps for its restoration. Now, the suit is part heard.

Previously, she was set exparte for not proceeding with the

cross examination of P.Ws.1 and 2. Later, she got the same set

aside by filing Interlocutory Application. Now, the matter is

coming on 14.11.2022 for cross examination of P.Ws.1 and 2.

In fact, petitioner sold her landed property to him under two

registered sale deeds and delivered possession thereof.

Respondent got the land converted into non-agricultural for

development purpose. So, when the respondent filed O.S.No.29

of 2018 and C.C.No.322 of 2018 at Narasaraopeta, the present

petitioner filed O.S.No.371 of 2018, seeking to declare the two

sale deeds as obtained by playing fraud on the petitioner. There

are no common questions of facts to be tried. Both the suits

cannot be clubbed. At best the petitioner can obtain the copies

of the promissory notes and the cheques and can file the same

in O.S.No.371 of 2018. So, there are no grounds for withdrawal

of the suit in O.S.No.29 of 2018 from the Court of XIII

Additional District Judge, Narasaraopet.

4) Now, the point that arises for consideration is that

whether the suit in O.S.No.29 of 2018 pending on the file of the

Court of XIII Additional District Judge, Narasaraopet, is liable to

be transferred to the Court of II Additional District Judge,

Guntur, where O.S.No.371 of 2018 is pending?

Point:-

5) The learned Senior Counsel, Sri Posani

Venkateswarlu, would contend that the High Court as well as the

Principal District Court have concurrent jurisdiction under

Section 24 of C.P.C. and it is not necessary that the petitioner

should approach before the District Court and this petition is

maintainable without approaching the District Court. He would

invite the attention of the Court that nothing is there in Section

24 of C.P.C. that the party has to approach the District Court

first to get transfer any case pending in any Court in the District

to any other Court in the District and insofar as Criminal Cases

are concerned, under Section 407 of Cr.P.C., no application

under Section 407 of Cr.P.C. shall lie to the High Court for

transferring a case from one criminal Court to another criminal

Court in the same Sessions Division, unless an application for

such transfer has been made to the Sessions Judge and rejected

by him. So, no such embargo like in Section 407 of Cr.P.C. is

there in Section 24 of C.P.C.

6) He would further rely upon the decisions in (1)

Kvaerner Cementation India Limited, Mumbai vs. Bharat

Heavy Plate and Vessels Limited, Visakhapatnam1 and (2)

Munnangi Ramakrishna Rao vs. Dr. Vanakuru Venkata

Siva Ramakrishna Prasad and others 2 to contend that the

High Court as well as the District Court have concurrent power

of jurisdiction insofar as transferring of Civil Cases from one

Court to another subordinate to those Courts.

7) He would further rely upon a decision in Kanumuri

Raghurama Krishnam Raju vs. State of Andhra Pradesh

and others3 to contend that Section 439 of Criminal Procedure

Code ("Cr.P.C." for short) is relates to special powers of High

2001 SCC OnLine AP 502

2003 SCC OnLine AP 438

2021 SCC OnLine SC 421

Court or Court of Session regarding bail and they have

concurrent jurisdiction to entertain bail applications and it is not

necessary that first Sessions Court shall be approached. The

language in Section 24 of C.P.C. is also similar, as such, this

Court has jurisdiction to entertain the Transfer Civil

Miscellaneous Petition, though the petitioner did not move the

Principal District Judge at Guntur.

8) Coming to the merits of the prayer, he would submit

that the subject matter pertaining to O.S.No.29 of 2018 filed

against the present petitioner by the respondent is to recover

crores of rupees under the guise of three promissory notes. He

would contend that the petitioner filed O.S.No.371 of 2018 to

cancel the registered sale deeds. In the said suit, the petitioner

clearly pleaded about the subject matter of the promissory notes

in O.S.No.29 of 2018. Her prayer in O.S.No.371 of 2018 is

linked with the subject matter of the promissory notes in

O.S.No.29 of 2018 and she filed written statement in O.S.No.29

of 2018 pleading all the facts, as such, if both suits are tried by

separate judicial officers, there is ever likelihood of conflicting

decisions, as such, the Transfer Civil Miscellaneous Petition may

be allowed.

9) The learned counsel for the respondent, Sri G.V.S.

Mehar Kumar, would contend that the petition before this Court

is not maintainable, as the petitioner did not move the Principal

District Court at Guntur, though the XIII Additional District Court

and the II Additional District Court are located in Guntur

jurisdiction. He would further submit that the suit in O.S.No.29

of 2018 is part heard and the matter is coming for cross

examination of P.Ws.1 and 2 and the petitioner took several

adjournments and dragged the matter and as a last resort to

stall the proceedings, she filed the present application, as such,

the Transfer Civil Miscellaneous Petition is liable to be dismissed.

10) Admittedly, Section 24 of C.P.C. deals with the

general power of transfers of the High Court as well as the

District Court to transfer the cases from the file of one Court to

another subordinate to them. Admittedly, no provision like in

Section 407 Cr.P.C. enjoining that High Court shall not entertain

an application under Section 407 Cr.P.C., unless the party first

approaches the Sessions Judge, is not therein under Section 24

of C.P.C. Apart from this, the learned counsel for the petitioner

would rely upon certain decisions.

11) Coming to the case Kvaerner Cementation India

Limited's case (1 supra), the facts were that petitioner filed a

petition before the High Court of Andhra Pradesh to transfer

O.P.No.1743 of 2000 on the file of Principal District Judge,

Visakhapatnam to the file of any other Additional District Judge.

In fact, the learned Principal District Judge dismissed the

petition on the ground that Additional District Judge has no

jurisdiction to entertain O.P.No.1743 of 2000 under Arbitration

Act. It was challenged before the High Court of Andhra Pradesh.

In the said case, High Court held that it is well settled the

District Judge and High Court have concurrent power or

jurisdiction to transfer the cases under Section 24 of C.P.C. and

the proceedings for transfer can be instituted either

simultaneously or separately before the High Court and District

Judge. Therefore, even after dismissal of the petition by the

District Court, a fresh application seeking transfer can be filed

before the High Court under Section 24 of C.P.C.

12) Coming to the case in Munnangi Ramakrishna Rao's

case (2 supra), it was a case where a petition was filed before

the District Judge to transfer O.S.No.551 of 2002 from the file of

Principal Junior Civil Judge, Tenali to the Court of Additional

Senior Civil Judge, Tenali, to be tried along with a connected suit

in O.S.No.184 of 2002 and it was dismissed. Then the party filed

another Transfer Civil Miscellaneous Petition before the High

Court. There was a question arose before the Division Bench as

to whether as against such an order, a revision is maintainable

under Section 115 of the Code. The High Court answered the

issue negative and held that a plain reading of Section 24 of

C.P.C. shows that both the High Court and District Court have

concurrent jurisdiction to transfer proceedings in any Court

subordinate to them to another Court either suo-motu or on an

application by any of the parties to the proceedings.

13) In view of the above two decisions, it is clear that

party need not approach the District Court to get the transfer of

a case pending before a Court in District to another Court in the

District. The learned counsel for the respondent did not submit

any contrary authorities in this regard.

14) Apart from this, in another decision in Kanumuri

Raghurama Krishnam Raju's case (3 supra), the appellant

therein filed an application for bail before the High Court under

Section 439 Cr.P.C. and the High Court of Andhra Pradesh

directed the petitioner to approach the trial Court first. Then the

matter was canvassed before the Hon'ble Supreme Court where

the Hon'ble Supreme Court held that the jurisdiction of the trial

Court as well as High Court under Section 439 Cr.P.C. is

concurrent and merely because the High Court was approached

by the appellant without approaching the trial Court, it would

not mean that High Court could not have considered the bail

application of the appellant. The High Court ought to have

considered the bail application of the appellant on merits and

decided the same.

15) So, it is clear that when the High Court as well as

the District Court have concurrent jurisdiction in view of the

language under Section 24 of C.P.C., a party cannot be

compelled to approach the District Court first, in view of the

above two decisions dealing with Section 24 of C.P.C. The

language under Section 439 Cr.P.C. means that High Court and

Sessions Court have concurrent powers or jurisdiction. In such

scenario, the Hon'ble Supreme Court held that party cannot be

compelled to first approach the Sessions Court to file application

under Section 439 Cr.P.C.

16) Having regard to the above, I am persuaded to

accept the contention of the learned Senior Counsel that the

prayer of the petitioner cannot be rejected on the ground that

petitioner did not move this type of application before the

concerned District Court.

17) Coming to the merits, it is well settled that under

Section 24 of C.P.C., the Court is empowered to grant the relief,

if it is found that it is in the interest of justice, both the suits

shall be tried by the same judicial officer. As evident from the

pleadings in O.S.No.29 of 2018, the respondent made the suit

admittedly to recover huge amounts from the petitioner on the

strength of the so-called promissory notes executed by her. As

evident from the copy of the plaint in O.S.No.371 of 2018, the

respondent is shown as second defendant. The petitioner herein

filed the said suit to declare that the registered sale deed, dated

28.11.2014 and 04.12.2014 executed by her in favour of second

defendant are bad and liable to be cancelled on account of

fraud, misrepresentation and undue influence and to grant a

permanent injunction in respect of A and B schedule property.

In the plaint, she pleaded about the subject matter of the

promissory notes in O.S.No.29 of 2018. So, her defence is that

the so-called registered sale deeds which are sought to be

declared as vitiated by fraud, misrepresentation and undue

influence and the subject matter of the promissory notes

pertaining to O.S.No.29 of 2018 are interlinked with each other.

The date of promissory notes and the so-called sale deeds are of

one and same date. It is clear from the copy of the written

statement in O.S.No.29 of 2018 that she put forth such a

defence as averred in O.S.No.371 of 2018.

18) So, the facts and circumstances are such that if both

the suits are tried by different judicial officers, there is ever

likelihood of getting conflicting judgments. On the facts, this

Court is of the considered view that it is absolutely, in the

interest of justice, that both suits are desirable to be tried by

same judicial officer to avoid any conflicting judgments.

19) Turning to the contention of the learned counsel for

the respondent that the matter is coming for cross examination

of P.Ws.1 and 2 and once the matter was also set exparte and

the petitioner at the fagend filed the application to stall the

proceedings, I am of the considered view that the delay on the

part of the petitioner in approaching this Court in the year 2022,

though the suit is of the year 2018, does not warrant this Court

to refuse the prayer especially on facts. It is clear that both the

suits are to be tried by one and the same Court. Under the

circumstances, I am of the considered view that ends of justice

will meet, if time bound directions are given to curb the delay in

disposal of the matter.

20) In the result, the Transfer Civil Miscellaneous

Petition is allowed withdrawing the Original Suit No.29 of 2018,

on the file of learned XIII Additional District Judge,

Narasaraopet, Guntur District and transferring the same to the

Court of II Additional District Judge, Guntur, to be tried along

with Original Suit No.371 of 2018, as expeditiously as possible,

not later than six months from the date of receipt of this order.

The petitioner shall cooperate with the trial Court for disposal of

the matter, in accordance with law, as directed by this Court,

within the stipulated time. There shall be no order as to costs.

Consequently, miscellaneous applications pending, if any,

shall stand closed.

________________________ JUSTICE A.V. RAVINDRA BABU Dt. 25.11.2022.

PGR

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

Tr.C.M.P.NO.21 OF 2022

Date: 25.11.2022

PGR