Aileni Sanjeeva Reddy vs Lavudiya Veeranna Naik
2021 Latest Caselaw 3264 Tel

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                                                             trcmp_674 & 681_2017
                                                                             AVR,J


      THE HON' BLE SRI JUSTICE A. VENKATESHWARA REDDY

  Transfer Civil Miscellaneous Petition Nos.674 and 681 of 2017



COMMON ORDER:


      Tr.CMP.No.674 of 2017 and Tr.CMP.No.681 of 2017 are filed

seeking to withdraw O.S.No.71 of 2016 and O.S.No.72 of 2016,

respectively, pending on the file of learned Senior Civil Judge, Huzurabad,

and to transfer the same to the file of Family Court-cum-Additional

District Court, Karimnagar.   Sri A. Sanjeeva Reddy has filed both these

transfer petitions.


      The main averments of the affidavit filed by the petitioner in

support of these transfer petitions are that he is a practicing advocate,

and that he has filed a suit for perpetual injunction against the

respondents in O.S.No.97 of 2016, pending on the file of Judge, Family

Court, Karimnagar, against the respondents. In respect of the same

subject matter, two other suits O.S.No.71 of 2016 and O.S.No.72 of 2016

are filed by the respondent herein on the file of learned Senior Civil

Judge, Huzurabad.

The respondents in O.S.No.71 of 2016 and O.S.No.72 of 2016 are

husband and wife respectively. The respondents are residents of

Husnabad of Karimnagar District and the travel time from Karimnagar to

Husnabad and Huzurabad to Husnabad is almost the same. Further, the

public transport system of Karimnagar is almost accessible, the suit filed

by him is pending before the Family Court, Additional District Court,

Karimnagar. Though he has filed Transfer O.P.No.636 of 2016 and 637 of

2016 on the file of learned Principal District Judge, Karimnagar, seeking

transfer of O.S.No.71 of 2016 and O.S.No.72 of 2016 respectively

pending on the file of learned Senior Civil Judge, Huzurabad, for trial

along with O.S.No.97 of 2016, pending on the file of Judge, Family Court-

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cum-Additional District Court, Karimnagar, the learned Principal District

Judge, has dismissed both the O.Ps on 22.07.2018, and therefore, the

present transfer petitions are filed.

The respondent did not choose to file any counter before this Court.

But before the Principal District Court, the respondents have filed counter.

The averments of the counter filed in transfer O.P.No.636 of 2016,

and 637 of 2016 would establish that O.S.Nos.71 of 2016 and 72 of 2016

are filed on the file of learned Senior Civil Judge, Huzurabad, for specific

performance of agreement of sale dated 30.05.2015 in respect of House

Plot in an extent of 342 Square Yards, in Survey No.233 of Husnabad

Town and Mandal, executed by the transfer petitioner herein in favour of

G. Veeresham (respondent in Tr.CMP No.674 of 2017).

Whereas O.S.No.97 of 2016 pending on the file of Family Court-

cum-Additional District Court, at Karimnagar, is filed by the transfer

petitioner against the respondents for perpetual injunction in respect of

Schedule A to C properties which are notified plots. Though the parties to

the proceedings are one and the same, the subject matter involved in the

suits is not the same. They expressed inconvenience that if O.S.Nos.71

and 72 of 2016 are transferred they would suffer irreparable loss and

injury.

It is further alleged that the respondents are aged persons and

they are suffering from certain ailments and it is not convenient for them

to attend the Court at Karimnagar if the transfer petitions are allowed.

The learned Principal District Judge, Karimnagar, after considering the

material on record, vide orders dated 22.08.2017, dismissed both the

transfer petitions with the observation that one Court has jurisdiction

under Code of Civil Procedure to try the suit, the plaintiff as Dominus Litis

has right to choose the Court and try the suit convenient to him and mere

trcmp_674 & 681_2017 AVR,J

convenience of the parties may not be enough to exercise the power but

it must also be shown that the trial in the chosen forum will result in

denial of justice, and accordingly the learned Judge dismissed both the

transfer petitions.

Now, the learned counsel for the petitioners has filed Memos on

01.10.2021 stating that he has filed transfer petitions before this Court

seeking transfer of the suits O.S.Nos.71 of 2016 and 72 of 2016 to the

FamilyCourt-cum-Additional District Court, Karimnagar, and also

explained the status stating that in both the suits, written statements are

filed, trial not yet commenced and no witness is examined.

Section 24 of Code of Civil Procedure deals with general power of

High Court and District Court for transfer and withdrawal of cases.

"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) re-transfer the same for trial or disposal to the Court from which it was withdrawn."

The power under Section 24 of CPC has to be exercised with due

care and caution and circumspection.

In the case on hand, the petitioner has already filed transfer

petitions before the learned Principal District Judge and both the transfer

petitions stated above were dismissed by the learned Judge with the

observation that it is not the convenience of one party or both the parties

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that shall be taken into consideration while passing orders to withdraw a

case and make over or transfer to another Court.

It is a fact that the plaintiff, as Dominus Litis, has right to choose

Court and the defendant cannot demand that suit be tried in any

particular Court convenient to him but at the same time, convenience of

the parties where some other litigation is also pending may have to be

considered.

Learned counsel for the petitioner has placed reliance on the

judgment of Hon' ble Supreme Court in Dr. Subramanyam Swamy v.

Ramakrishna Hegde1. Considered the principles laid down in the above

judgment. Both the respondents are shown as residents of Husnabad and

the suits filed by the respondents are for specific performance of

agreement of sale in respect of 1342 Square yards of house plots in

Survey No.233 in O.S.No.71 of 2016 and 5 guntas in Survey No.233 in

O.S.No.72 of 2016.

As seen from the boundaries to the properties described, the suit

filed by the petitioner in O.S.No.97 of 2016, it is the very same property

for which the suits for specific performance of agreement of sale were

filed. Thus, the property and parties involved in all the three suits are

one and the same though the reliefs sought for are specific performance

of agreement and for perpetual injunction. Therefore, while considering

the principles laid in the above decision, scheme of Section 24 of CPC, in

the larger interest of justice, to avoid multiplicity of proceedings, it is just

and necessary that all the three matters are to be heard by a single

Officer so that divergent views can be avoided in such matters. Though

the issues in suit for injunction and suit for specific performance are

different, as the subject matter involved and the parties are one and the

AIR 1990 SC 113

trcmp_674 & 681_2017 AVR,J

same, and the trial not yet begun, I find justification in the request of the

petitioner that all the matters to be tried by one Court.

Further, even if the convenience of the parties is considered, it is

averred by the petitioner that the distance from Husnabad to Huzurabad

and Huzurabad to Karimnagar, is one and the same and there is better

connectivity between Huzurabad to Karimnagar than Huzurabad to

Husnabad. It is not in view of the demand of any of the parties that the

matter to be tried at one Court, but the convenience of the parties to

avoid multiplicity of proceedings and to avoid divergent views, it is felt

that all the matters be tried by one Court.

Thus, for the reasons stated above, I deem it fit to withdraw

O.S.No.71 and 72 of 2016 pending on the file of learned Senior Civil

Judge, Huzurabad, and transfer the same to the Family Court-cum-

Additional District Court, at Karimnagar, where O.S.No.97 of 2016 is

pending.

In the result, the transfer petitions are allowed, and the

O.S.No.71 of 2016 and O.S.No.72 of 2016 pending on the file of learned

Senior Civil Judge, Huzurabad, are hereby withdrawn and transferred to

the Family Court-cum-Additional District Court, at Karimnagar, where

O.S.No.97 of 2016 filed by the petitioner is pending, for disposal in

accordance with law. No costs. Interlocutory applications, if any pending

in these transfer petitions, shall stand closed.

________________________ A. VENKATESHWARA REDDY, J 08th November, 2021

ksm

trcmp_674 & 681_2017 AVR,J

THE HON' BLE SRI JUSTICE A. VENKATESHWARA REDDY

Transfer Civil Miscellaneous Petition Nos.674 and 681 of 2017

08th November, 2021

KSM