Uttarakhand High Court
WPMS/1338/2020 on 12 April, 2021
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WPMS No. 1338 of 2020
Hon'ble Sharad Kumar Sharma, J.
Mr. Ramji Srivastava, Advocate for the
petitioners.
Mr. Piyush Garg, Advocate for the
respondents.
A very peculiar controversy, which has
arisen in the present case is that the proceedings by
way of Misc. Case No. 31 of 2019, for the grant of
Letter of Administration, has been instituted by the
petitioners under Sections 218 and 278 of the
Indian Succession Act, before the Court of 2nd
Addl. District Judge, Dehradun. Simultaneously,
there happens to be yet another Suit, being Suit No.
452 of 2017, which was filed by the petitioner
before the Court of Civil Judge (Senior Division),
Dehradun, for partition of the property, which is the
subject matter of the Suit.
In the Suit, in question, the present
petitioners, who are the plaintiffs, in both the
proceedings, had filed an application under Section
24 of the CPC, which was numbered as R. Misc.
Case No. 75 of 2020, which has been rejected by
the learned 2nd Additional District Judge, Dehradun,
on the ground that the transfer of the proceedings
before his Court of the Suit No. 452 of 2017, which
has been filed before the Court of Civil Judge
(Senior Division), Dehradun, would not be possible
because it will be affecting the appellate
jurisdiction, and right of appeal too.
In relation thereto, if the findings which have
been recorded while rejecting the application, has
been contained in the concluding part of the
judgment and it is exclusively on that ground that
the learned District Judge has rejected the
application.
This Court is of the view that the reasonings
assigned by the learned District Judge, Dehradun,
for passing the impugned order rejecting the
transfer application, is not sustainable for the reason
being that the right of appeal, in case, in an
eventuality of allowing of the transfer application
from the Court of Civil Judge (Senior Division),
Dehradun to the Court of Addl. District Judge,
Dehradun, the appellate right or forum would not be
affected for the reason being that in case of a
judgment, which is to be rendered in Suit No. 452
of 2017, for partition, would be appealable before
the High Court and, hence, on that pretext the
application could not have been rejected.
Without expressing any opinion on the merits
of the matter, this Writ Petition is allowed, the
impugned order dated 6th March, 2020, is quashed.
The matter is remitted back to the Court of District
Judge, Dehradun, to re-decide the application for
transfer, registered as R. Misc. Case No. 75 of
2020, Anju Sood and others Vs. Ashish Sood and
others, exclusively on its own merit afresh.
Subject to the above, the Writ Petition stands
allowed.
Allowing of the Writ Petition would not
refrain the parties from raising their respective
contentions, on merits, on transfer application
before the Court of District Judge, Dehradun.
(Sharad Kumar Sharma, J.)
Dated 12.04.2021
Shiv
