Sarosij Bandhopadhyay vs Smt. Pranati Banerjee & Ors
2021 Latest Caselaw 6398 Cal

In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

CO. No. 3165 of 2019

Sarosij Bandhopadhyay Vs.

Smt. Pranati Banerjee & Ors.

For the Petitioner             : Mr. Debjit Mukherjee, Adv.
                                 Ms. Susmita Chatterjee, Adv.
                                 Mr. Kaustav Bhattacharya, Adv.

For the Opposite Parties       : Mr. S. Tareq Mina, Adv.
                                 Mr. Protick Sardar, Adv.

Heard On                       : 13.12.2021.
Judgment                       : 17.12.2021.


Subhasis Dasgupta, J:-

This is a transfer application under Section 24 of Code of Civil

Procedure, seeking transfer of a Title Suit No. 147 of 2014, now pending

before the court of learned Civil Judge (Junior Division), 3rd Court,

Howrah to the court of learned Civil Judge (Senior Division), 1st Court,

Howrah.

Mr. Debjit Mukherjee, learned advocate appearing for the petitioner

submitted that a suit for eviction had been instituted against the

petitioner describing himself to be licencee in Title Suit No. 147 of 2014 of

learned Civil Judge (Junior Division), 3rd Court, Howrah.

Adverting to a photocopy of plaint of T.S. No. 10 of 2012, now

pending before the learned Civil Judge (Senior Division), 1st Court,

Howrah, Mr. Mukherjee submitted that petitioner had also instituted a

suit for partition against defendants/co-sharers mentioning the suit

property involved in the eviction suit, brought against the petitioner, as

one of the properties to the schedule of partition suit.

Since, one of the properties mentioned in the schedule for partition

suit is the subject matter of the eviction suit, from which the petitioner

was sought to be evicted, as a licencee, there is fair chance of occasioning

conflicting decisions to come in the event of the two different Title Suits,

mentioned hereinabove, being tried independently in two different courts

of same station, Mr. Mukherjee argued.

Admittedly, petitioner was unsuccessful in transfer application, filed

before the learned District Judge, Howrah in connection with Misc. Case

No. 146 of 2016. Though petitioner was unsuccessful in the transfer

application under Section 24 C.P.C. before the learned District Judge,

Howrah in Misc. Case No. 146 of 2016, but the petitioner even after being

negated by learned District Judge, Howrah in transfer application under

Section 24 C.P.C., had chosen this forum for transfer of the pending

eviction suit from the court of learned Civil Judge (Junior Division), 3rd

Court to the court of learned Civil Judge (Senior Division), 1st Court of

same station.

The attention of the Court was drawn to the observations of learned

District Judge, Howrah, while declining to pass any order allowing

transfer in application of the provisions under Section 24 C.P.C., to page

no. 2 of the order of the learned District Judge, dated 13.08.2019, passed

in Misc. Case No. 146 of 2016, to the effect that "on conjoint reading of

the plaint of both the Title Suit I find that result of one suit has

some impact on the result of another suit, but that fact does not

ipso facto suggest that both the suits should be tried by same Court

because nature of both the suits are different, nature of relief

sought for in both the suits are not same and identical and that

apart, subject matter of the Title Suit No. 147 of 2014 and the

subject matter of Title Suit No. 10 of 2012 are not same and

identical."

Referring such order of learned District Judge, Mr. Mukherjee

strenuously argued before the Court that Section 24 of Code of Civil

Procedure provided concurrent jurisdiction to the both the courts i.e. the

District court and High Court, and on the given facts situation, an

application could be maintained, even after dismissal of an application

under Section 24 of Code of Civil Procedure filed by the petitioner

previously.

It was thus emphasized that there was no bar under Section 24 of

C.P.C. to file a separate application before this Court even on the self-

same cause, and on self-same facts situation.

Taking such grounds, and stressing upon the need to prevent

conflicting decisions to come, the instant application was proposed to be

transferred.

Per contra, Mr. S. Tareq Mina, learned advocate for the opposite

party replied that the pending eviction suit had reached the peremtory

hearing stage, though there had been no commencement of the trial, as

yet; while partition suit was at preliminary stage. Challenging the

maintainability of the instant transfer application, learned advocate for

the opposite party contended that after the rejection of the prayer for

transfer application by the learned District Judge, no separate transfer

applications would be maintainable before this Court on self-same facts

situation, what had been duly appreciated by the learned District Judge,

without proof of any change in the circumstances.

More so, in the absence of biasness focused against the Trial Court,

before whom the eviction suit is pending, it would not be reasonable for all

purposes to transfer the eviction suit from the court of learned Civil Judge

(Junior Division) to the court of learned Civil Judge (Senior Division) of

same station.

Learned advocate opposite party candidly admitted that best

evidence always ought to be produced before the court of law for a perfect

adjudication of the matter in controversy between the parties.

Upon taking such grounds, the opposite party had sought for

dismissal of the transfer application.

The admitted position is that one the of the properties mentioned in

the partition suit, pending in the court of learned Civil Judge (Senior

Division), Howrah, is the subject matter of eviction suit vide. Title Suit No.

147 of 2014, now pending before the learned Civil Judge (Junior Division),

3rd Court, Howrah, from which the petitioner was sought to be evicted

describing him to be licencee.

The further admitted position is that the petitioner had sought for

partition of properties, mentioned in the schedule to the partition suit

against his co-sharers, in which one of the properties involved in the

eviction suit is also incorporated in the schedule of properties for partition

suit.

There had been no commencement of trial so far as eviction suit is

concerned, as yet. While partition suit is at preliminary state.

As regards the biasness contended by the opposite party, the Court

perceives that transfer application will not become unsuccessful in the

absence of biasness being shown against the Trial Court. This is not the

real state of affairs. Biasness is one of the considerations available in an

action under Section 24 of C.P.C. But that is not the one and only ground

available under Section 24 C.P.C. for the proposed transfer. Such

submission of opposite party has no substance requiring any further

discussion.

Much was argued by either of the parties to this case with regard to

the maintainability of the instant transfer application under Section 24 of

C.P.C., what had been rejected earlier by the learned District Judge,

Howrah in Misc. Case No. 146 of 2016.

Reliance was placed on such issue by Mr. Mukherjee on a decision

delivered by this Court in the case of Smt. Monalisa Koley Vs. Sri

Sourav Sasaru reported in (2019) 1 CAL LT 76 (HC), wherein the

principle behind the maintainability of separate application under Section

24 C.P.C., even after rejection of the self-same prayer under Section 24

C.P.C. by learned District Judge of court below, was taken into account on

self-same facts situation.

The Division Bench of this Court made a comparative analysis of the

provisions available under Code of Criminal Procedure and Civil Procedure

Code in the case of Diptendu Nayek & Ors. Vs. State of West Bengal

reported in 93 CWN 119, to answer a question that was arisen for the

consideration of the Special Bench, as to whether a person can make an

application to the High Court for anticipatory bail under Section 438 of

the Cr.P.C., after making a similar application under the same Section to

the court of Sessions without success.

It would be, thus, most profitable on this issue to reproduce the

observation of such judgment of Division Bench, made in the Para-11 of

the judgment, as hereunder:

"11. During the course of argument we drew the attention of the learned Counsel for the parties to the provisions of Section 24 of the Code of Civil Procedure, 1908, wherein the analogous expression "the High Court or the District Court", has

been used and it has been provided that "the High Court or the District Court may at any stage" transfer or withdraw any suit, appeal or other proceeding and the settled position in this Court is that a party may apply afresh to the High Court under Section 24 even after moving the District Court without success.

As early as in 1909,when it was urged before a Division Bench of this Court in Hari Nath v. Debendra Nath (11 Calcutta Law Journal 218) that under Section 24, the High Court and the District Court having concurrent powers, the High Court would have no jurisdiction under that Section where the District Court had already declined the transfer, Sir Ashutosh, speaking for the Bench, repelled the contention (at 219) as having "manifestly no foundation" and ruled that under Section 25 of the preceding Code of 1882, corresponding to Section 24 of the present Code, "this Court frequently exercised the power of transfer after an application for transfer made to the District Court had proved infructuous". To the same effect is the later decision of Patna High Court in Sheo Mandan v. Mangal Chand (AIR 1927 Patna 383 at 384) where the Division Bench decision of this Court in Hari Nath (Supra) was followed. A similar contention appears to have been made in a much later Division Bench decision of this Court in Gorachand v. Dipali (1976-2 Calcutta Law Journal 380) and it was urged that the petitioner once having made an application under Section 24 before the District Court and that application having failed, shall not be entitled to move a fresh application under Section 24 before the High Court. The Division Bench has ruled (at 387) that "on a plain reading of the Section, it can not be said that moving an application before the District Court will preclude the petitioners from moving a fresh application before the High Court" and relied on and followed the Division Bench

decision in Hari Nath (Supra) and the Patna decision in Sheo Nandan (Supra) for the purpose. As already noted, Section 438 or 439 of the Criminal Procedure Code, 1973, uses similar expression and empowers "the High Court or the Court of Sessions" to exercise powers thereunder and we have not been able to find any good reason as to why the ratio of these Division Bench decisions of our Court, construing the analogous expression in Section 24 of the Code of Civil Procedure, shall not apply to the construction of Section 438 or Section 439 of the Code of Criminal Procedure, 1973."

Though the maintainability of the instant transfer application was

grossly focussed during the submissions disclosed by the learned

advocate for the opposite party, but giving precedence to the technicalities,

could not be principally disputed by the learned advocate for opposite

party, so as to prevent conflicting decisions to come.

It is thus no longer res integra that there cannot be a separate

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

after becoming unsuccessful before the District Judge in an application

under Section 24 of the C.P.C. for the self-same facts, even without any

proof of change in the circumstances.

In view of the decision rendered by the Division Bench of this Court

long before, what was applied in some other cases, as it is in the case of

Smt. Monalisa Koley (Supra), such proposition of law still holds the

field.

When the learned District Judge, Howrah admitted in his

observation that the result of one suit had some impact on the result of

other suit, it was for the District Judge, Howrah to take into such account

and ought to have allowed transfer in the interest of preventing conflicting

decisions to come, without giving precedence to the technicalities.

The instant transfer application is quite maintainable before this

Court. There is hardly left any scope for further elaboration with regard to

maintainability of the instant transfer application.

Having considered the submissions of both sides, it appears that

there is strong force in the submissions advanced by Mr. Mukherjee, in

view of the settled proposition of law, as referred hereinabove.

The transfer application is thus disposed of directing learned Civil

Judge (Junior Division), 3rd Court, Howrah, to transfer Title Suit No. 147

of 2014 to the court learned Civil Judge (Senior Division), 1st Court,

Howrah, where partition suit being T.S. 10 of 2012 is pending, within a

period of fortnight from the date of communication of this order.

Though consolidation of two suits was proposed in the prayer

portion of the transfer application, which is left to be decided by the

transferee court in accordance with provisions of law.

The transferee court is directed to proceed with the eviction suit

after giving notice to the either of the parties to this case, so as to secure

their presence in the eviction suit, in accordance with the provisions of

law.

The petitioner is directed to serve cope of this order to both the

courts below.

Urgent certified copy of this order and judgment, if applied for, be

given to the appearing parties as expeditiously as possible upon

compliance with all necessary formalities.

(Subhasis Dasgupta, J.)