M/S Victor Food Products vs N.Venkat Ratnam
2022 Latest Caselaw 155 Tel

     THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

                         Tr. CMP No.203 of 2021
ORDER:

1. This Transfer Civil Miscellaneous Petition is filed by the

petitioner under Section 24 of the Civil Procedure Code 1908, to

withdraw AS No.74 of 2019 pending on the file of the XVI Additional

District Judge, Ranga Reddy District at Malkajgiri and transfer the

same to this Court to be tagged along with Second Appeal No.107 of

2021 pending on the file of this Court and dispose of the same

together, in the interest of justice.

2. Notice is served on the respondent. Counter affidavit is filed.

Perused the material placed on record.

3. The main averments of the affidavit filed in support of the

petition are that the respondent has filed OS No.26 of 2016 on the file

of the Principal Junior Civil Judge, Medchal, Ranga Reddy District

against the petitioner herein for eviction from the suit schedule

property. That suit was partly decreed granting relief of eviction while

dismissing the suit insofar as the relief of damages is concerned, by

judgment and decree dated 05.02.2019. Aggrieved by the aforesaid

judgment and decree, he has preferred AS No.30 of 2019 before the

District Court, Ranga Reddy. Subsequently, the appeal has been

transferred to the Court of XI Additional District Judge (Fast Track

Court), Medchal. However, the appellate Court without properly

considering the grounds dismissed the appeal by its order dated

15.03.2021 directing the petitioner to vacate the possession of suit

schedule property within three months.

4. Aggrieved by the said order dated 15.03.2021 in AS No.30 of

2019, the petitioner has preferred Second Appeal No.107 of 2021

before this Court and the same is pending. In S.A. No.107 of 2021,

the respondent has caused appearance through his counsel and filed

counter affidavit stating that he preferred an appeal in AS No.74 of

2019 insofar as refusal for grant of relief of damages is concerned and

the same is pending before the learned XI Additional District Judge at

Malkajgiri. But, to till date the petitioner has not received any notice

in AS No.74 of 2019, but only by virtue of the averments in the

counter affidavit, he has come to know about it, accordingly, prayed

to transfer the said AS No.74 of 2019 from the Court of XVI

Additional District Judge, Ranga Reddy at Malkajgiri to this Court

and to tag the same along with Second Appeal No.107 of 2021, which

is pending on the file of this Court for disposal in accordance with

law.

5. The respondent has filed a detailed counter affidavit resisting

this transfer petition. The main averments of the counter are that he

has filed the original suit No.26 of 2016, to the extent of refusal of

relief of damages, he has filed AS No.74 of 2019 and the same is

pending on the file of the XVI Additional District Judge at Malkajgiri.

But, it is stated that the said matter of AS No.74 of 2019 and SA

No.107 of 2019 are entirely different and there is no nexus between

both the matters, as the Second Appeal No.107 of 2021 is filed against

the dismissal of AS No.30 of 2019, whereas AS No.74 of 2019 is filed

against the refusal of damages claimed by him. It is further stated that

he has filed EP No.58 of 2021 on the file of the Principal Junior Civil

Judge's Court, Ranga Reddy District at Medchal for execution of

eviction order and the bailiff has proceeded to the suit schedule

property on 02.11.2021 and any moment, the order is likely to be

executed, as he has filed two applications to break open the lock of

suit schedule property and for the police protection and the same are

pending, apprehending that the Junior Civil Judge may order the

petitions filed by the respondent, the present transfer application is

filed with a mala fide intention to avoid the execution of said decree

and accordingly prayed for dismissal of the application.

6. Heard on both sides. Perused the material placed on record.

7. The admitted/undisputed facts of the case are that the

respondent has filed OS No.26 of 2016 on the file of the learned

Principal Junior Civil Judge, Medchal, Ranga Reddy District against

the petitioner/defendant seeking eviction from the suit schedule

property and also for damages. The suit was disposed of on contest

and after full length of trial. The transfer petitioner herein being the

defendant in the original suit has only challenged the validity and

legality of the decree and judgment dated 05.02.2019 to the extent of

eviction, as he was directed to vacate the suit schedule property within

six months and hand over the vacant possession.

8. Whereas, the respondent/plaintiff has filed AS No.74 of 2019 to

the extent of refusal of the relief of damages concerned and it is

pending on the file of the learned XVI Additional District Judge at

Malkajgiri, Ranga Reddy District. The appeal filed by the petitioner/

defendant in AS No.30 of 2019 appears to have been made over to the

learned XI Additional District Judge (Fast Track Court), Medchal,

Ranga Reddy District and it was dismissed on 15.03.2021 directing

the petitioner/defendant to handover the vacant possession of the suit

schedule property within three months from the date of judgment.

Thus, the petitioner/defendant has suffered the judgment in the

original suit and the appeal suit and both the Courts with concurrent

findings directed him to vacate the demised premises.

9. Consequently, it appears the respondent/plaintiff/decree holder

has filed EP No.58 of 2021 wherein the trial Court has issued warrant

for delivery of vacant possession of the EP schedule property,

pursuant to the directions in AS No.30 of 2019. Aggrieved by the

findings in AS No.30 of 2019, it appears the petitioner/judgment

debtor/defendant appears to have filed S.A.No.107 of 2021. Though

both SA No.107 of 2021 and AS No.74 of 2019 are arising out of the

same judgment and decree in OS No.26 of 2016, the petitioner/

defendant did not choose to challenge the other part of the judgment.

Similarly, the respondent/plaintiff also did not choose to challenge the

eviction part of the judgment. It is not the case of the parties that in

AS No.30 of 2019 without hearing the respondent/plaintiff, the first

appellate Court has passed the orders.

10. Be that as it may, in view of the fact that the trial Court and first

appellate Court in OS No.26 of 2016 and AS No.30 of 2019 gave a

concurrent finding with regard to the eviction of the petitioner/

defendant from the demised property and it appears EP No.58 of 2021

is also filed, I find no ground to tag the Second Appeal No.107 of

2021 to AS No.74 of 2019 directing the first appellate Court i.e., the

learned XVI Additional District Judge to transfer the said AS No.24

of 2019 to this Court to be disposed of along with S.A.No.107 of 2021

for the simple reason that the second appeal has to be disposed of only

on the basis of substantial question of law, if any, whereas the first

appeal in AS No.74 of 2019 has to be considered by the first appellate

Court on its merits analysing the facts and the principles of law laid

with reference to the claim of damages made by the respondent/

plaintiff herein. In such circumstances, in my considered opinion, the

petitioner/defendant is not entitled for the benefit of the provisions of

Section 24 of CPC seeking for transfer of AS No.74 of 2019 to this

Court to be disposed of along with Second Appeal No.107 of 2021.

11. In the result, the Transfer Civil Miscellaneous Petition is

dismissed. However, in the circumstances of the case, both the parties

shall bear their respective costs. Miscellaneous applications, if any

pending in this Tr.C.M.P. shall stand closed.

_______________________________ A. VENKATESHWARA REDDY, J.

Date: 21.01.2022 Isn