Jammu & Kashmir High Court
Joginder Vaid S/O Late Sh. Chuni Lal Vaid vs Shailender Vaid S/O Sh. Joginder Vaid ... on 3 April, 2024
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Sr. No.44
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- Trp(C) No. 39/2023
1. Joginder Vaid S/o Late Sh. Chuni Lal Vaid .....Petitioner(s)
R/o House No. 179-P, Sector 3 Trikuta Nagar,
Jammu age 84 years.
2. Sangeeta Vaid W/o Sh. Joginder Vaid R/o
House No. 179-P, Sector 3 Trikuta Nagar,
Jammu age 74 years.
3. Munish Vaid S/o Sh. Joginder Vaid R/o
House No. 179-P, Sector 3 Trikuta Nagar,
Jammu age 74 years.
4. Ritika Vaid D/o Sh. Joginder Vaid W/o Sh.
Amit Gupta R/o House No. 28 B/B Gandhi
Nagar, Jammu age 45 years.
Through: Mr. R.K. Jain, Sr. Advocate with
Mr Pranav Jain, Advocate.
Vs
1. Shailender Vaid S/o Sh. Joginder Vaid R/o House No.
25, Tawi Vihar Colony, Sidhra, Jammu. ..... Respondent(s)
2. Sahil Vaid S/o Sh. Joginder Vaid R/o 10 Figtree place,
Wakerley Brisbane-4154 Queenland Australia.
...Proforma respondent
Through: Mr. KDS Kotwal, Advocate.
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
03.04.2024
(ORAL)
1. Through the medium of the instant petition filed under
Section 24 of the Code of Civil Procedure, the petitioners
herein seek transfer of the civil suits titled as "Shailender
Vaid Vs. Joginder Vaid and ors" from the court of Principal
District Judge, Kathua and "Shailender Vaid Vs. Sangeeta
Vaid and ors" from the court of Munsiff, Chenani to any
other court of competent jurisdiction at Jammu.
2. The facts giving rise to the filing of the instant petition reveal
that the respondent 1 herein is the son of the petitioners 1
and 2 herein and brother of petitioners 3, 4 and proforma
respondent 2 herein.
3. The respondent 1 herein is stated to have filed a suit for
partition before the court of Principal District Judge, Kathua
with regard to the House bearing No. 179-P situated at
Sector 3, Trikuta Nagar, Jammu along with a shop
constructed therein the suit house besides a petrol pump
run under the name and style of M/s Angad Filing Station
situated at Basohli along with petrol tankers attached to the
said petrol pump as also of a plot of land bearing No. 80
measuring 1.5 kanals situated at Yard 6, Transport Nagar,
Narwal, Jammu
A decree for permanent prohibitory injunction has also
been sought by the plaintiff/respondent 1 herein in the said
suit against the defendants/petitioners herein and proforma
respondent 2 herein for restraining them and their agents
from alienating the said suit property in any manner as also
from raising any sort of construction thereon the suit
property. Besides in the said suit, a decree for recovery of
1/5th share of the plaintiff/respondent 1 herein from the
income i.e., rent received from the shop constructed at
House No. 179-P supra and 1/5th share of the profit from
the sale of the aforesaid petrol pump w.e.f., 14.08.2004 has
also been sought.
4. It is being stated by the petitioners herein that in response
to the summons issued in the said suit, they appeared
before the trial court and filed written statement to the suit
besides filing a counter claim.
It is being further stated that the suit filed at Kathua
has been filed by the plaintiff/respondent 1 herein with the
sole aim to drag the petitioners to the said suit and
deliberately incorporated M/s Angad Filing Station, Basohli-
the petrol pump which is not being owned by the petitioners
herein.
5. It is being further stated that besides filing the aforesaid
suit, the respondent 1 herein also filed a suit for declaration
and injunction against the petitioner 2 herein before the
court of Munsiff, Chenani being titled as "Shalender Vaid
Vs. Sangeeta Vaid" qua land measuring 4 kanals falling
under khasra No. 1440/644 situated at National Highway,
Kud, Tehsil Chenani District Udhampur, along with
construction raised thereon on the ground of adverse
possession, besides seeking a decree for permanent
prohibitory injunction therein for restraining the defendant
from interfering in any manner into the possession of the
suit property.
6. The said suit is also being stated to be contested by the
petitioner 2 herein by filing a written statement as also
objections to the application for interim relief wherein an
interim direction earlier granted stands vacated by the said
court.
It is being further stated that the said suit came to be
filed by the respondent 1 herein with an aim to drag the
petitioners herein being old aged persons in the said suit.
7. The fundamental grounds for the transfer of the suits in the
instant petition urged by the petitioners are that the transfer
of the same would meet the ends of justice besides being for
the convenience of the parties.
8. Objections to the petition have been filed by the respondent
1 herein wherein the petition is being opposed and resisted.
Heard learned counsel for the parties and perused the record.
9. Before proceeding to advert to the aforesaid grounds urged
in the petition by the petitioners for transfer of suits in
question, it would be appropriate to refer to the relevant
provisions of law in the first instance hereunder:-
Section 16 of the Code of Civil Procedure provides
that the suits for recovery of immoveable property or for
partition of immovable property or for foreclosure, sale or
redemption of mortgage property or for determination of any
other right to or interest in immovable property or for
compensation for wrong to immovable property must be
instituted in the court within the local limits of whose
jurisdiction the property is situate.
The primary object of the aforesaid section is to limit
the territorial jurisdiction in respect of claims to immoveable
property to courts within whose jurisdiction such property is
situate. It embodies the well settled principle of law that a
court has no jurisdiction over a matter in regard to which it
cannot give effective judgment.
The term „immoveable property‟ appearing in section
16 of the Code of Civil Procedure has not been defined in the
Code, however, in General Clauses Act of 1897,
„immoveable property‟ has been defined to include land,
benefits to arise out of land and things attached to the earth
or permanently fastened to anything attached to the earth.
Section 17 of the Code of Civil Procedure
supplements Section 16 of the Code of Civil Procedure
and enables the court to entertain a suit in respect of
properties partly situated in its territorial limits and party
out of it where the same relief is sought in respect of the
whole of it.
The primary object of Section 17 of the Code of Civil
Procedure is to avoid plurality of suits and is intended for
the benefit of suitors and avoids multiplicity of proceedings
with regard to immovable property. Under Section 17 of the
Code of Civil Procedure where a suit can be instituted in
more than one court, the plaintiff has a right to select his
own forum and essentially gives an option to the plaintiff to
bring a suit in any court within whose jurisdiction a portion
of the property in dispute is situate, however, the only
restriction imposed by Section 17 is that the entire claim
should be within the pecuniary jurisdiction of the court.
Section 24 of the Code of Civil Procedure provides
for general power of transfer of any suit, appeal or other
proceedings at any stage upon an application of a party or
by a court of its own motion. This Section confers a
comprehensive and discretionary power of transfer of all
suits, appeals and other proceedings. An application for
transfer of a suit under Section 24 of the Code of Civil
Procedure can be made by any of the parties to the suit and
although the power of the Court under Section 24 is
discretionary in nature, yet the same cannot be said to be
exercised on mere asking of a party but for a sound and
reputable reasons and ground to be exercised with care,
caution and circumspection.
10. Keeping in mind the aforesaid position of law and reverting
back to the case in hand, the petitioners herein have urged
two grounds for seeking transfer of the suits firstly that the
transfer would meet the ends of justice and secondly that
the same will be for convenience of the parties as the parties
reside at Jammu.
11. It is well settled position of law that although the
discretionary power of transfer of a case cannot be
imprisoned within the strait-jacket of any cast iron formula
uniformly applicable to all situations, yet the jurisdiction
under section 24 of the Code of Civil Procedure has to be
exercised with extreme care, caution and circumspection
and that the search should be for justice and the court must
be satisfied that justice could more likely be done between
the parties by refusing to allow the plaintiff to continue his
suit in the forum of his own choice. However, a mere
balance of convenience in favour of the proceedings in
another court, albeit a material consideration may not
always be a sure criterion justifying transfer. The aforesaid
view has been expressed by the Supreme Court in case titled
as "Indian Overseas Bank Vs. Chemical Construction Co
reported in (1979) 4 SCC 358.
The contention that the petitioners 1 and 2 herein are
in old age or that the suit has been filed in a court at far of
place from their residence cannot be said to be a valid
ground for transfer of the cases as, it is an admitted fact
that the petitioner 2 herein has been contesting the suit filed
against her by the plaintiff/respondent 1 herein at Chenani
and has succeeded even getting the interim order passed
therein in the suit vacated. Same is the position qua the
suit pending before the Principal District Judge, Kathua
wherein admittedly the defendants/petitioners herein have
appeared and even filed the reply to the suit suggesting that
they are very well contesting the same conveniently without
any hindrance.
12. Under these circumstances, the plaintiff-respondent 1 being
dominus litis cannot be compelled to appear before a forum
by this Court and to pursue the suits which he has chosen
to file according to his option and at his own choice,
however, permissible under law.
13. Under these circumstances and having regard to the
aforesaid analysis, the grounds urged by the petitioners
cannot, therefore, be said to be sound warranting transfer of
the suits from the courts where the said suits are pending
trial.
14. Resultantly, the petition fails and is accordingly dismissed.
(JAVED IQBAL WANI)
JUDGE
JAMMU
03 .04.2024
NARESH/SECY
Whether order is speaking: Yes
Whether order is reportable: Yes
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