Delhi High Court

U.N. Bhardwaj vs Y.N. Bhardwaj & Ors on 2 January, 2017

$~3 & 4
      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Judgment delivered on: 02.01.2017
FAO(OS) 383/2016

U.N. BHARDWAJ                                                       ..... Appellant

                             versus

Y.N. BHARDWAJ & ORS                                                 ..... Respondents
AND

FAO(OS) 384/2016

U.N. BHARDWAJ                                                       ..... Appellant

                             versus

Y.N. BHARDWAJ & ORS                                                 ..... Respondents
Advocates who appeared in this case:

For the Appellant                      : Mr Anunaya Mehta
For the Respondent Nos.2,3,4&5         : Mr B.S. Mann with Mr Vishal Maan
Respondent no.1                        : Mr Y.N. Bhardwaj (in person)

CORAM:
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE ASHUTOSH KUMAR

                                 JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CM 48148/2016 in FAO(OS) 383/2016 CM 48195/2016 in FAO(OS) 384/2016 Exemption is allowed subject to all just exceptions.

FAO(OS) 383/2016 & CM 48149/2016 FAO(OS) 384/2016 & CM 48196/2016

1. These appeals arise out of the common order dated 02.12.2016 in two

civil suits which have been consolidated for the purposes of recording of

evidence by virtue of an order dated 28.02.2011. The suits were originally

filed in 2005 and numbered as CS(OS) 641/2005 and CS(OS) 642/2005.

Originally the suits were valued at Rs. 1 crore each for the purposes of

jurisdiction. Because of the increase in the pecuniary jurisdiction of the

District Court and the lower limit of the pecuniary jurisdiction of the original

side of this court being raised to Rs. 2 crore, the said suits were transferred to

the District Court at Saket and they were re-numbered as CS15/2015 and

CS16/2015. In the meanwhile, applications under Order 6 Rule 17 CPC to

amend the plaint in the two suits had already been filed before this court.

Those applications came up for hearing before the District and Sessions

Judge (South) at Saket, New Delhi, and the same were disposed of by the

order dated 04.10.2016 whereby the amendment applications were allowed

increasing the valuation of the suit to Rs. 10 crore each. Consequently, upon

the applications being allowed, it became apparent to the District Court that

it would not have pecuniary jurisdiction to try the suits. As a result, it was

directed by the Order dated 04.10.2016 that as the suits were now valued for

the purposes of jurisdiction at Rs. 10 crore and were beyond the pecuniary

jurisdiction of the District Court, the same be placed before the High Court

for further direction and the date of 17.10.2016 was fixed for the appearance

of the parties.

2. Initially the matter was placed before the Registrar and Joint Registrar

and ultimately it was placed before court on 02.12.2016 when the learned

Single Judge took up the hearing of both the suits and passed the impugned

common order dated 02.12.2016.

3. The learned counsel for the appellant had placed reliance on two

decisions of learned Single Judges of this court reported as Ziff-Davis Inc. v.

Dr. J.K. Jain & Ors,: 2006(32) PTC 86 (Del) and Hawkins Cookers

Limited v. Citizen Metal Industries (India): 2006(33) PTC 387 (Del). It

was contended that in similar circumstances in these decisions the learned

Single Judges had exercised powers under Section 24 CPC and had

withdrawn the suits from the District Court to be tried by the original side of

this court. Despite the said decisions having been placed before the learned

Single Judge, by virtue of the impugned order, the learned Single Judge

directed that the case files be returned to the District Court from where they

had been received but gave liberty to the parties to move an appropriate

application in the meanwhile under Section 24 CPC. According to the

learned counsel for the appellant this is contrary to the view taken by the

learned Single Judges in the above mentioned cases and would cause

unnecessary delay in the suit proceedings. The learned counsel for the

respondents in CS(OS) 641/2005 are all present. They have no difficulty

with the ratio of the decisions in Ziff-Davis Inc.(supra) and Hawkins

Cookers Limited (supra) being applied to this case also. There are some

other respondents in CS(OS) 642/2005 who are not before us but we see no

impediment in disposing of the present appeals in their absence. This is so

because the power under Section 24 CPC can be exercised suo motu without

notice to the parties. Section 24 CPC reads as under:-

"24. General Power of transfer and withdrawal.- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) Withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and-

                (i)     try or dispose of the same; or

                (ii)    transfer the same for trial or disposal to any Court

subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section,-

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order.]

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."

4. Sub-section (1) of Section 24 itself makes it clear that the power of

withdrawal or transfer of suits can be exercised by, inter alia, the High Court

on the application of any of the parties and after notice to the parties and

after hearing such of them as desired to be heard. The same power can be

exercised by the High Court (or the District Court as the case may be) of its

own motion and without such notice to the parties. It appears that the

learned Single Judge has not noticed this suo motu power which the court

has. The direction given by the District Judge on 04.10.2016 was not one in

exercise of the power of transfer under Section 24 but merely of placing

these case files before the High Court for exercising its power under Section

24 of the CPC.

5. We note that in Ziff-Davis Inc.(supra) a learned Single Judge of this

court had observed as under:-

"9. The orders passed by the District Judge thus, in may considered view, must be read as orders to place the matters back before the High Court which again acquires jurisdiction in view of the amendment made by the plaintiff to the plaint. It is at this stage, when such a date is fixed for the parties to appear before the High Court, the High Court when it proceeds with the matter can exercise powers under Section 24 of the Code and thus proceed with the matter from the stage which the matter had reached by that date. This reasoning is also supported by the fact that even the trial Court was required to continue the proceedings from the stage it had reached in the High Court by reason of transfer of the matter to the trial Court and the High Court again starts the matter from where it had left or in addition some steps have been taken by the trial Court.

10. In view of the aforesaid, I am of the considered view that it is open to the District Judge to fix a date for appearance of the parties before the High Court and at that stage the High Court could exercise powers under Section 24 of the Code to continue with the proceedings from the stage it reached by that date instead of starting the proceeding de novo."

(underlining added)

6. In Hawkins Cookers Limited (supra) the view taken by the learned

Single Judge of this Court was as under:-

"6. I find it impossible to accept the argument that the filing of a Suit in a competent Court must be rendered void and nugatory only because of procedural changes made by the High Court.

In several cases where Suits have been transferred from the High Court to the District Court the plaintiffs have, after succeeding in an upward revision of the valuation of the Suit, approached the Court under Section 24 of the CPC. This Section contemplates the filing of an application by the parties desirous of a transfer, or of its own motion. The Orders of the District Judge are merely to the effect that the file should be sent or transmitted to this Court. It is, therefore, for the High Court to decide what action has to be adopted. To set all controversies at rest, I assume jurisdiction under Section 24 and hold and direct that the Suit stands transferred to this Court by Orders of this Court itself."