Andhra Pradesh High Court - Amravati
Smt.P.Lalithamma vs P.Dhanalakshmi on 17 September, 2024
APHC010125622024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3397]
(Special Original Jurisdiction)
TUESDAY ,THE SEVENTEENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE VENUTHURUMALLI GOPALA
KRISHNA RAO
TRANS. CIVIL MISC.PETITION NO: 86/2024
Between:
1. SMT.P.LALITHAMMA, W/O P.NARAYANASWAMY, AGE ABOUT 63
YEARS, OCC HOUSE WIFE, R/O KANIPAKAM VILLAGE AND POST,
IRALA MANDAL, CHITTOOR DISTRICT.
...PETITIONER
AND
1. P DHANALAKSHMI, W/O P.GOVINDA NAIDU, AGE ABOUT 69
YEARS, OCC HOUSE WIFE, R/O KANIPAKAM VILLAGE AND POST,
IRALA MANDAL, CHITTOOR DISTRICT.
2. P MURALIDHAR MURALI, S/O P.GOVINDA NAIDU, AGE ABOUT 46
YEARS, OCC EMPLOYEE, R/O D.NO.20-421, MITTOOR, CHITTOOR
DISTRICT.
3. P GOVINDA NAIDU, S/O P.KRISHNAMA NAIDU, AGE ABOUT 83
YEARS, R/O D.NO.20-421, MITTOOR, CHITTOOR DISTRICT.
...RESPONDENT(S):
Petition Under Section 24 of the C.P.C. Praying that in the circumstances
stated in the affidavit filed therewith,the High Court may be pleased topleased
to withdraw the OS.No.403 of 2011, from the file of the Principal Senior Civil
Judge, Chittoor and transfer the same to the file of IX Additional District
Judge, Chittoor to be tried along with OS.No.52 of 2023 and pass
IA NO: 1 OF 2024
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to stay all further proceedings in OS.No.403 of 2011, on the file of
the Principal Senior Civil Judge, Chittoor, pending disposal of CRP., and pass
Counsel for the Petitioner:
1. K V L NARASIMHA RAO
Counsel for the Respondent(S):
1. MUTYALA SOBHANADRI NAIDU
2. V DISHA CHOWDARY
The Court made the following:
Order:
This transfer civil miscellaneous petition is filed by the petitioner under
Section 24 of CPC praying to withdraw the suit in O.S.No.403 of 2011 from
the file of Principal Senior Civil Judge's Court, Chittoor and transfer the same
to the file of IX Additional District Judge's Court, Chittoor, to be tried along with
O.S.No.52 of 2023.
2. The case of the petitioner, in brief, is as follows:
(i) The 1st respondent herein filed a suit for partition vide O.S.No.403 of
2011 on the file of Principal Senior Civil Judge's Court, Chittoor, against her
and another for seeking the relief of partition of the plaint schedule properties
into three equal shares and she further pleaded that she filed her detailed
written statement in the said suit and the said suit is pending for trial. She
further pleaded that she moved three applications to amend the plaint
schedule and to receive the documents and the trial Court, without
considering the facts, dismissed her applications. Aggrieved by the same, she
also preferred civil revision petitions before this Court and the same are also
dismissed by this Court.
(ii) The petitioner further pleaded that subsequent to the disposal of the
aforesaid civil revision petitions, by narrating all the facts and circumstances,
she moved a comprehensive suit vide O.S.No.52 of 2023 on the file of
IX Additional District Judge's Court, Chittoor. In the said suit, the respondents
filed their appearance and the same is posted to 04-4-2024 for filing written
statement. She further pleaded that the properties involved in both the suits
are one and the same, if different courts gave different opinion in respect of
the properties, there is a possibility of conflict of judgment against each other
and that she filed the present petition seeking transfer of O.S.No.403 of 2011
from Principal Senior Civil Judge's Court, Chittoor to the Court of IX Additional
District Judge, Chittoor, to be tried along with O.S.No.52 of 2023.
3. The 3rd respondent filed a counter affidavit. The main brief
averments in the counter affidavit filed by the 3rd respondent are as follows:
(i) The 1st respondent filed O.S.No.403 of 2011 on the file of Principal
Senior Civil Judge's Court, Chittoor against her sister and son, seeking
partition of the plaint schedule properties into three shares and to allot one
such share to her. Initially, the petitioner was set ex parte, later she filed
a petition seeking to set aside the ex parte order and the said petition was
allowed and the petitioner herein filed written statement. The trial has
commenced and the 1st respondent was examined as P.W.1, the
2nd respondent was examined as D.W.1, one Purushotham Naidu, who is an
attestor of the registered gift deed and registered sale deed, was examined as
D.W.2 and the suit has been coming up for examination of the petitioner
herein as D.W.3. At the stage of trial in O.S.No.403 of 2011, she filed three
interlocutory applications seeking to receive additional written statement,
documents and amendment of written statement one after the other and all
the applications filed by the petitioner herein are dismissed on merits by the
trial Court in O.S.No.403 of 2011. Aggrieved by the same, the petitioner
herein filed civil revision petitions that were also dismissed by this Court.
(ii) While so, the petitioner herein filed the suit in O.S.No.52 of 2023 on
the file of IX Additional District Judge's Court, Chittoor, against the
respondents herein, adding the property in the schedule which was sold to the
3rd respondent by Rajamma vide registered sale deed in the year 2011. It is
pertinent to mention here that the petitioner herein did not file any suit for
cancellation of the registered gift deed or sale deed till now and to circumvent
that hurdle of limitation, she has filed the suit in O.S.No.52 of 2023 on the file
of IX additional District Judge's Court, Chittoor.
(iii) It is submitted that the first suit is of the year 2011 and it has
reached its fag end stage of trial. The petitioner herein, with her vexatious
attitude, filed the suit in the year 2023 on the file of IX Additional District
Judge's Court, Chittoor and she has also filed the transfer petition before this
Court seeking withdrawal of O.S.No.403 of 2011 from the file of Principal
Senior Civil Judge's Court, Chittoor and to transfer the same to the file of
IX Additional District Judge's Court, Chittoor, where O.S.No.52 of 2023 is
pending and to conduct common trial. It is, therefore, prayed to dismiss the
petition.
4. Heard Sri P. Samuel Sanjay Kumar, learned counsel for the petitioner
and Smt. V. Disha Chowdary, learned counsel for the respondents.
5. Now, the point for determination is:
Whether O.S.No.403 of 2011 pending on the file of Principal Senior Civil
Judge's Court, Chittoor, is liable to be transferred to the Court of IX Additional
District Judge, Chittoor, to try along with O.S.No.52 of 2023 on the file of
IX Additional District Judge's Court, Chittoor ?
6. Point:- As seen from the material part of the record, the
1st respondent herein filed a suit against the petitioner herein and another in
O.S.No.403 of 2011 for partition of the plaint schedule properties. It is
relevant to say that the 1st defendant in O.S.No.403 of 2011 filed this transfer
civil miscellaneous petition. The 2nd defendant has not sought for the transfer
of O.S.No.403 of 2011 to the Court of IX Additional District Judge, Chittoor.
Furthermore, as per the own case of the petitioner itself, she filed three
applications before the trial Court in O.S.No.403 of 2011 to receive additional
written statement, documents and amendment of written statement and the
trial Court dismissed those applications on merits and aggrieved against the
said order, three civil revision petitions are filed and the same are dismissed
on merits and ended with finality. Having failed in all attempts, she moved
another suit in the year 2023 after a lapse of 12 years of the first suit, that too
after trial was commenced in O.S.No.403 of 2011 and at present, the said suit
was reached at the fag end stage of the trial. The suit in O.S.No.52 of 2023 is
filed for the self-same relief against the 1st respondent and two others and the
2nd defendant in O.S.No.52 of 2003 is not a party in O.S.No.403 of 2011.
In the counter affidavit, the 1st respondent herein contended that in the suit in
O.S.No.403 of 2011, the trial has been commenced and plaintiff's side
evidence is closed and on defendants' side, D.Ws.1 and 2 are examined and
posted for further evidence of the defendants. Instead of adducing evidence
by the petitioner as D.W.3, the petitioner filed the present petition to transfer
O.S.No.403 of 2011 to the Court of IX Additional District Judge, Chittoor, to try
along with the suit in O.S.No.52 of 2023. The above facts reveal that
O.S.No.403 of 2011 reached its fag end stage of trial and the trial Court
closed defendants' side evidence in O.S.No.403 of 2011, at that stage, the
petitioner filed a petition before Principal Senior Civil Judge's Court, Chittoor,
in O.S.No.403 of 2011 to reopen the suit.
7. Necessity for transfer of suits from one Court to another would arise
if only there exists any similarity of cause of action or commonality of the
parties. When such situation does not exist, the relief claimed for the transfer
of suit cannot be granted. Section 24 of CPC confers comprehensive power
on the Court to transfer suits, appeals or other proceedings at any stage either
on the application by any party or suo motu. Although discretionary power of
transfer of cases cannot be imprisoned within a straight jacket of any cast, iron
formula unanimously applicable to all situations, it cannot be gain said that the
power of transfer of the case must be exercised with due care, caution and
circumspection.
8. The relief sought by the petitioner in the present transfer application
is "to withdraw O.S.No.403 of 2011 from the file of Principal Senior Civil
Judge's Court, Chittoor and transfer the same to the file of IX Additional
District Judge, Chittoor, to be tried along with O.S.No.52 of 2023". But,
Section 24 of CPC does not permit the Courts to club suits, since Clause (2)
of Section 24 of CPC limits it jurisdiction to issue any such direction, except to
commence the trial afresh or to proceed from the stage at which the trial was
stopped before the other Court.
9. The apprehension of the 1st respondent in the transfer civil
miscellaneous petition filed by the petitioner is that the petitioner herein
included other property in the plaint schedule in O.S.No.52 of 2023 filed by her
and she also added other party as one of the defendants in the suit in
O.S.No.52 of 2023. In such a case, it is for the petitioner herein to work out
her remedies in respect of other property added in the suit filed by her and she
work out her remedies in respect of the remaining old properties in the suit
filed by the 1st respondent. Moreover, the suit filed by the 1st respondent is
a old one which was instituted long back in the year 2011 and reached its fag
end stage of trial, therefore if now the suit which is of year 2023 i.e. O.S.No.52
of 2023 is clubbed with the old suit, certainly it will cause prejudice to the
parties, moreover the suit in O.S.No.403 of 2011 is further delayed. It is
relevant to say that the suit in O.S.No.52 of 2023 is pending before
IX Additional District Judge's Court, Chittoor, for filing written statement by the
defendants. As stated supra, Section 24(2) of CPC does not empower the
Court to give direction to the trial Court to conduct joint trial and to be tried
along with another suit.
10. In the case of Kulwinder Kaur alias Kulwinder Gurcharan Singh
v. Kandi Friends Education Trust1, the Apex Court held as follows:
"23. 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 the plaintiff or the 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
1
(2008) 3 SCC 659
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 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. ...
... ..."
11. As stated supra, the petitioner, who is the 1st defendant in
O.S.No.403 of 2011, filed three applications at the stage of trial in O.S.No.403
of 2011 and the same were dismissed on merits by the Court concerned and
aggrieved against the same, the petitioner herein filed civil revision petitions
before this Court and the said civil revision petitions are also dismissed by this
Court on merits. Having failed in all the attempts, she filed O.S.No.52 of 2023
for the self-same relief which was sought by the 1st respondent herein in
O.S.No.403 of 2011 against the 1st respondent herein and two others, that too
after 12 years of institution of the suit by the 1st respondent herein.
The 2nd defendant in O.S.No.52 of 2023 is not a party to the suit in
O.S.No.403 of 2011, moreover O.S.No.403 of 2011 reached fag end stage of
the trial and defendants' side evidence is closed. The apprehension of the
1st respondent herein is that the petitioner herein included other property in
the plaint schedule in O.S.No.52 of 2023 filed by her and she also added
another party as one of the defendants in the said suit. As noticed supra, in
such a case, it is for the petitioner herein to work out her remedies in respect
of other property sought in the suit filed by her and she work out her remedies
in respect of the remaining old properties in the suit filed by the 1st
respondent. As noticed supra, nothing prevented her to work out her
remedies in O.S.No.52 of 2023 in respect of other properties in the plaint
schedule in O.S.No.52 of 2023. Basing on vague allegations raised in the
affidavit of the petitioner, she cannot seek to transfer O.S.No.403 of 2011 from
Principal Senior Civil Judge's Court, Chittoor, to IX Additional District Judge's
Court, Chittoor, to be tried along with O.S.No.52 of 2023.
12. For the aforesaid reasons, I see no grounds to grant the relief
sought by the petitioner.
13. In the result, the transfer civil miscellaneous petition is dismissed.
Pending applications, if any, shall stand closed. Each party do bear their own
costs in this petition.
VENUTHURUMALLI GOPALA KRISHNA RAO,J
To,
1. P DHANALAKSHMI, W/O P.GOVINDA NAIDU, AGE ABOUT 69
YEARS, OCC HOUSE WIFE, R/O KANIPAKAM VILLAGE AND POST,
IRALA MANDAL, CHITTOOR DISTRICT.
2. P MURALIDHAR MURALI, S/O P.GOVINDA NAIDU, AGE ABOUT 46
YEARS, OCC EMPLOYEE, R/O D.NO.20-421, MITTOOR, CHITTOOR
DISTRICT.
3. P GOVINDA NAIDU, S/O P.KRISHNAMA NAIDU, AGE ABOUT 83
YEARS, R/O D.NO.20-421, MITTOOR, CHITTOOR DISTRICT.
4. Two CD Copies
HIGH COURT
VGKRJ
DATED:17/09/2024
ORDER
