Dharamvir Nanda vs Ranbir Nanda & Another
2008 Latest Caselaw 1757 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                 Tr.P.10/2008

%                                 Date of decision: 26.09.2008

Dharamvir Nanda                                 .......    Petitioner
                        Through: Mr. S.K. Gupta, Advocate

                                Versus

Ranbir Nanda & another                          ....... Respondents
                        Through: Mr. B.B. Gupta, Advocate


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     Whether reporters of Local papers may
       be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether the judgment should be reported
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. The petitioner claims to have instituted a suit for permanent

and mandatory injunction (hereinafter called suit-I) against the

respondents in the court of the Learned Civil Judge, Delhi. It is

stated that the respondents made a statement in the said suit giving

undertaking to the court which was accepted by the court of the

Learned Civil Judge, Delhi. It is further stated that the respondents

have violated the said undertaking/injunction of the court leading to

petitioner filing an application u/o.39 rule 2A of CPC. Learned Civil

Judge is stated to have found the respondents guilty of violation of

the order and after finding so, adjourned the matter for awarding the

punishment to the respondents. It is further stated that the

respondents preferred an appeal before the Learned Additional

District Judge, against the said order of the Learned Civil Judge. The

Learned Additional District Judge, is stated to have remanded the

matter to the Learned Civil Judge for deciding afresh.

2. It appears that besides the proceedings aforesaid, certain

other suits/appeals were also pending between the parties. The

respondents are stated to have in or about 2004, filed an application

u/s. 24 of the CPC before the Learned District Judge, for transfer of

the proceedings aforesaid pending before the Learned Civil Judge, to

the court of Learned Additional District Judge, where the other

suits/proceedings were pending. The Learned District Judge vide

order dated 25.4.2005 allowed the said transfer application of the

respondents and transferred the proceedings pending before the

Learned Civil Judge, to the court of Learned Additional District

Judge. The application u/o.39 rule 2A of CPC, which as aforesaid

was remanded in appeal to be considered afresh by the Learned Civil

Judge, thus also came to be transferred to the court of the Learned

Additional District Judge, where the other proceedings between the

parties were pending.

3. The petitioner herein has now applied for retransfer of suit-I

and the application u/o.39 rule 2A of CPC to the court of Learned

Civil Judge. Two grounds are urged for transfer. Firstly, it is stated

that the application u/o. 39 rule 2A of CPC is to be tried by the same

court whose injunction has been breached/violated; it is stated that

the injunction of which breach is complained having been granted by

the Learned Civil Judge, the Learned Additional District Judge before

whose court the suit-I and the application u/o.39 rule 2 A of CPC

have been transferred, would have no jurisdiction to try the same.

Reliance in this regard is placed on Dr. Bimal Chand Sen Vs. Mrs.

Kamla Mathur, 1982, Raj. Law Reporter, 553, to contend that the

application u/s. 39 rule 2A of CPC lies before the same Judge who

has passed the injunction order. Secondly, it is urged that u/s. 15 of

the CPC, a suit is required to be instituted in the competent court of

lowest grade having appropriate pecuniary jurisdiction; it is stated

that suit-I is valued for the purposes of jurisdiction at Rs.260/-, which

falls within the pecuniary jurisdiction of the Learned Civil Judge and

if the said suit is allowed to be tried by the Learned Additional

District Judge, the forum of appeals arising therefrom would also be

affected.

4. I do not find that the plaintiff has made out any ground for

transfer. Firstly, the order of the Learned District Judge transferring

the suit-I and the application u/o.39 rule 2A of CPC therein from the

court of the Learned Civil Judge to the court of Learned Additional

District Judge, has attained finality. Certainly in exercise of power

u/s. 24 of the CPC, this court is empowered to retransfer the

proceedings. However, the question of exercising the jurisdiction to

retransfer would arise only on grounds therefor being made out. All

the grounds urged now were available to the petitioner at the time of

transfer also and no new ground has accrued to the petitioner for

annulling the earlier transfer.

5. Secondly, there is no merit in the contention of the petitioner

that the powers u/s. 39 Rule 2A CPC, are to be exercised by the same

court. Rule 2A itself incorporates that the application has to be

made to the court granting the injunction or making the order "or

any court to which suit or proceedings is transferred". If any

authority is required for the said proposition, reference may be made

to Ishwar Industries Ltd. Vs. Crocus Chattels Pvt. Ltd., 2006

3AD (Delhi) 12. Thirdly, the ground of the suit being tried in violation

of section 15 of the CPC and the forum of appeal being affected is

also not available to the petitioner. Law in this regard has been

reviewed in Shriram Pistons & Rings Ltd. Vs. Manju Awasthi, 68

1997 DLT 112, where this court has held that in exercise of powers

u/s. 24 of the CPC, the suit can be transferred from the court of

minimum pecuniary jurisdiction to the court of higher pecuniary

jurisdiction, even affecting the forum of appeal and if the same is

otherwise found to be desirable by the court. It was held that so far

as the provisions of section 24 of CPC are concerned, the arguments

that it takes away the vested right of appeal cannot take away the

power of the court to transfer.

6. The apprehension of the counsel for the petitioner that the

court of Learned Additional District Judge, to whom suit-I along with

application u/o. 39 Rule 2A of CPC have been transferred, will have

no jurisdiction to entertain the same, is misplaced.

7. I do not find any merit in the Transfer Petition. The same is

dismissed.

RAJIV SAHAI ENDLAW (JUDGE) September 26, 2008 k