Usha Chowdhary And Anr. vs Veena Chowdhary And Ors.
2005 Latest Caselaw 788 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule. With the consent of the counsel for the parties, the petition is taken up for final hearing.

2. This petition challenges the Order dated 24th November, 2004 which reads as follows:-

"24.11.2004 Suit No. 250/04/85

Present : Counsel for the parties.

Reply to the application u/o 47 CPC filed on behalf of plaintiff. Copy supplied.

Arguments heard. Counsel for the defendant has argued that since the probate proceedings between the parties are pending in the Hon'ble High Court and there was direction of Hon'ble High Court for tagging this file with the probate matter, so this file should be sent to the High Court.

Perusal of order sheets shows that vide order dt. 5.11.2003 Ld. Joint Registrar placed the matter before Hon'ble High Court on the same objection raised on behalf of the defendant and vide order dt. 25.3.2004 Hon'ble High Court directed that in terms of Section 2 of Delhi High Court (Amendment) Act 2003, this suit should be transferred to District Courts. Thereafter again vide order dt. 28.5.2004, the necessary order for transfer of the suit was passed by Joint Registrar from Hon'ble High Court to Ld. District Judge. Therefore, there is no ground for review of the said orders. The application under order 47 CPC is dismissed."

It is not in dispute that on 30th July, 2003 an order was passed by this court transferring the suit for partition in question filed by the respondents to the District Courts as per the enhanced pecuniary jurisdiction of this Court pursuant to the Notification dated 16th July, 2003. Thereafter an order was passed on 5th November, 2003 by the Joint Registrar in view of the directions issued by this Court on 31st March, 1997 to list the probate petition No. 3 of 1989 along with the present suit.

3. Accordingly the following order was passed on 5th November, 2003 by the Joint Registrar:-

"Dated : 05.11.2003

Present : Ms. A. Banerjee for the plaintiff.

Ms. Namrata Chadha for the defendant.

S. No. 868/85

Vide order dated 31.3.97 of the Hon'ble Court PR 22/85 and PR 3/89 have been directed to be listed together with suit bearing No. 868/85 i.e., the present suit the file in relation to PR 22/85 has been put up by the Registry. Vide order dated 16.9.87 of the Hon'ble Court, the probate proceedings qua PR 22/85 were directed to be listed along with the present suit. Vide order dated 2nd March, 2001 and orders, thereafter dated 23.4.2001 and 12.10.2001 of the Hon'ble Court PR 3/89 was also directed to be listed along with the present suit.

The suit filed by the plaintiff is valued for the purpose of court fee and jurisdiction below Rs. 20 lacs. Thus, in terms of Section 5(2) of the Delhi High Court Act 1966, as amended vide the Delhi High Court (Amendment) Act 2003 and in terms of office order No. 37/DHC/ORGL dated 22.8.2003 and as directed by the Hon'ble Chief Justice, High Court of Delhi, New Delhi, the suit is liable to be transferred to the Ld. District Courts. However, in view of the orders detailed hereinabove, the matter be placed before the Hon'ble Court for further directions in relation thereto, on 2.12.2003, and the files in relation to PR 3/89 and PR 22/85 be also placed by the Registry before the Hon'ble Court on 2.12.2003."

Pursuant to the said order of the Joint Registrar, the matter was listed before the learned Single Judge of this Court on 25th March, 2004 wherein an order was passed transferring the suit to the District Court in view of the enhanced pecuniary jurisdiction as per Section 2 of the Delhi High Court (Amendment) Act, 2003. The order of 25th March, 2004 reads as follows:-

"25.03.2004

Present : Ms. A. Banerjee for the plaintiff.

Mr. Shaju Francis for the defendant.

CS(OS) No. 868/1985

In terms of Section 2 of Delhi High Court (Amendment) Act, 2003, this suit has to be transferred to District Courts.

List before the Joint Registrar on 28th May, 2004 for further directions.

Sd/-

March 25, 2004 R.C. CHOPRA, J."

On 4th August, 2004 another learned Single Judge of this Court declined the prayer which according to the learned Single Judge in fact sought a recall of the order of this court dated 25th March, 2004 and hence this prayer was rejected in the following terms:-

"04-08-2004

Present: Ms. A. Banerjee for the plaintiff.

Mr.Shaju Francis for the defendants 1 to 5/applicants in IA No. 3769/04.

IA No. 3769/2004 in CS(OS) No. 868/85

This is an application seeking transfer of Probate No. 68/85 from District Court to the High Court. By moving this application under Section 24 of the Code of Civil Procedure learned counsel for the plaintiff in facts seeks recall of the order passed by this Court on 25th March, 2004

I am of the view that this application in the present form is not maintainable. Since orders for transfer of this suit has already been made by a judicial order therefore dealing with this application would amount to review of the order passed by this Court. This application is dismissed as such.

Learned counsel for the defendant states that he shall make a review application during the course of time. Liberty is granted to the defendant provided law permits him to make such an application.

The file be sent back to the District Court. Parties are directed to appear before the District Court on 25th August, 2004

The present application stands disposed of.

Sd/-

August 28, 2004 H.R. MALHOTRA, J."

4. In view of the aforesaid judicial determination by this Court of the issue of whether the probate petition No. 3 of 1989 ought to have been heard along with Suit No. 868/85(now numbered as "Suit No. 250/04/85"), the prayer of the petitioner to transfer these proceedings has been rightly declined by the impugned order dated 24th November, 2004 extracted above as passed in Suit No. 250/04/85 by the Additional District Judge. In fact the learned Additional District Judge was bound by the specific orders dated 25th March, 2004 and 4th August, 2004 of this Court declining such a prayer and was indeed duty bound to follow them.

5. Accordingly there is no cause made out to interfere with the order dated 24th November, 2005 as no error apparent on the face of the record, warranting interference under Article 227 has been shown to this Court.

6. Consequently the petition is dismissed and the interim order dated 14th January, 2005 stands vacated.