Kerala High Court
Yadhu Mohan vs Rajesh Kumar P.R on 7 September, 2021
Author: Anil K. Narendran
Bench: Anil K.Narendran, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
TR.APPEAL(C) NO. 7 OF 2021
AGAINST THE ORDER OF THE LEARNED SINGLE JUDGE OF THIS
COURT IN Tr.P(C)NO.183/2021 DATED 13.07.2021
APPELLANT:
YADHU MOHAN
AGED 19 YEARS, S/O V.V. MOHANAN, AMRITHA,
KULAKKATU P.O., MUTHEDATH MADAMBU AMSOM,
OTTAPPALAM, PALAKKAD - 679 503
BY ADVS.
P.B.KRISHNAN
P.B.SUBRAMANYAN
SABU GEORGE
MANU VYASAN PETER
RESPONDENTS:
1 RAJESH KUMAR P.R.
AGED 40 YEARS, S/O RAMACHANDRAN NAIR,
MANNAYAMKOT HOUSE, KATTACHIRA, BHARANIKKAVU,
ALAPPUZHA - 690 503
2 GOUTHAM MOHAN
AGED 21, S/O V.V. MOHANAN, AMRITHA, KULAKKATU
P.O., MUTHEDATHU MADAMBY AMSOM, OTTAPPALAM,
PALAKKAD - 679 503
BY ADV R.LEELA
ADV.RAJESH SIVARAMANKUTTY - R2
THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION
ON 26.07.2021, THE COURT ON 07.09.2021 DELIVERED THE
FOLLOWING:
Tr.Appeal(C)No.7 of 2021
2
"C.R"
JUDGMENT
Anil K. Narendran, J.
The appellant is the petitioner in Tr.P.(C)No.183 of 2020, a transfer petition filed before this Court under Section 24 of the Code of Civil Procedure, 1908, seeking an order to transfer O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam to the Sub Court, Ottapalam, for being jointly tried along with O.S.No.20 of 2020 pending before that Court. By the order dated 13.07.2021, the learned Single Judge dismissed Tr.P.(C)No.183 of 2020. Feeling aggrieved, the appellant has filed this Tr.Appeal, under Section 5 of the Kerala High Court Act, 1958.
2. Heard the learned counsel for the appellant, the learned counsel for the 1st respondent and also the learned counsel for the 2nd respondent.
3. The 1st respondent herein filed O.S.No.57 of 2020 before the Munsiff Court, Kayamkulam, on 11.02.2020, against the appellant herein and his brother, the 2 nd respondent herein, seeking permanent prohibitory injunction restraining them from trespassing into the plaint schedule property. The 1st Tr.Appeal(C)No.7 of 2021 3 respondent filed the said suit, claiming to be a 'live-in partner' of M.S. Chitra, the deceased mother of the appellant and the 2nd respondent, and sought for permanent prohibitory injunction based on his alleged possession, ownership and enjoyment of the plaint schedule property, on the strength of an unregistered Will dated 06.10.2019, alleged to have been executed by M.S. Chitra. The reliefs sought for in O.S.No.57 of 2020 read thus;
"(a) വ ദ യട ക വശതല ഉ മസതയ ല അന ഭവതല
ത മസതല ഇര ന വര ന അന യപട യൽ അനധ തമ യ
പപവവശ ക വയ , ന ശവമ ശ ൾ വര ത വയ , വ ദ യ ട ത മസതന
അന ഭവതന , ക വശതന തസ വര ത വയ
ട&യ നത ൽന ന പപത ട'യ ആൾ വപടരയ ശ ശ)തമ യ
ന വര ധ ച+ .
(b) ഈ നമർ വ വഹ രതനട1 സ ലവ ധ ട&ലവ '+
തർകകന പപത ' ല സ)ത ' ൽ സപച
ഈ കടയ കനത വലയ3 വ ദ ടയ അന വദ ച+ .
(c) വ വഹ ര മവ4 അന വദ ക വ ന യ കവ ഉ& തവ മ യ
ഇതര പര ഹ രങൾ 7 അന വദ ച+ അന യ വധ
ഉണ മ1 ണടമന അവപകച+ട ള+ന."
4. The 2nd respondent herein filed O.S.No.20 of 2020 before the Sub Court, Ottapalam, on 21.02.2020, against the appellant, his father V.Mohanan and the 1 st respondent herein, a suit for partition, seeking partition and allotment of one half Tr.Appeal(C)No.7 of 2021 4 share in the properties left behind by M.S. Chitra. Plaint A schedule property in O.S.No.20 of 2020 is situated at Ottapalam in Palakkad District and plaint B schedule property (the plaint schedule property in O.S.No.57 of 2020 on the file of the Munsiff Court, Kayamkulam) is situated at Bharanikkavu in Alappuzha District.
5. The appellant filed Tr.P.(C)No.183 of 2020 before this Court, seeking an order to transfer O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam to the Sub Court, Ottapalam, for being jointly tried along with O.S.No.20 of 2020 pending before that Court, contending that common issues of facts and law arise for adjudication in the two suits. The plaint schedule property in O.S.No.57 of 2020, which is situated at Bharanikkavu in Alappuzha District is plaint A schedule property in O.S.No.20 of 2020, the suit for partition filed before the Sub Court, Ottapalam. The dispute relating to the unregistered Will dated 06.10.2019 alleged to have been executed by M.S. Chitra will have to be adjudicated in both the suits. The trial of both the suits in different courts may lead to Tr.Appeal(C)No.7 of 2021 5 possible conflicting decisions and also wastage of judicial time.
6. In Tr.P.(C)No.183 of 2020, the 1 st respondent filed counter statement through counsel, contending that he is in possession and enjoyment of the plaint schedule property in O.S.No.57 of 2020 on the file of the Munsiff Court, Kayamkulam, on the strength of an unregistered Will executed by M.S. Chitra, on 06.10.2019. He filed that suit when the appellant along with few of his relatives tried to trespass into that property. After the receipt of notice in O.S.No.57 of 2020, the 2nd respondent filed O.S.No.20 of 2020 before the Sub Court, Ottapalam, without the actual legal heirs of M.S. Chitra in the party array. Chitra had properties in Thrissur District and her mother is still alive, who has a rightful share in her properties. The appellant, with an intention to stall the proceedings in O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam, filed transfer petition before this Court, suppressing the fact that M.S. Chitra had executed an unregistered Will in favour of the 1st respondent. The said fact has been suppressed in O.S.No.20 of 2020 filed by the 2 nd Tr.Appeal(C)No.7 of 2021 6 respondent. It is only the Munsiff Court, Kayamkulam, which can decide on the validity of the unregistered Will dated 06.10.2019, since it was executed within the jurisdiction of that court, in the presence of witnesses, who are residents of Pathanamthitta and Mavelikkara. The intention of the appellant is to evade a finding on the validity of the Will, who has already initiated criminal proceedings against the 1 st respondent, alleging forgery in creating the Will, which is pending before the criminal court at Kayamakulam. Therefore, according to the 1 st respondent, transfer of O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam to the Sub Court, Ottappalam will not be beneficial.
7. The learned Single Judge, by the impugned order dated 13.07.2021, dismissed Tr.P.(C)No.183 of 2020 holding that the plaintiff in O.S.No.57 of 2020 being dominus litis has the right to choose his own forum and normally this right of the plaintiff cannot be interfered with or curtailed by either the opposite party or court. Indian Overseas Bank v. Chemical Construction Co. [(1979) 4 SCC 358]. The court while deciding the request for transfer has to bear in mind two Tr.Appeal(C)No.7 of 2021 7 conflicting interests; (i) as dominus litis, the right of the plaintiff to choose his own forum; and (ii) the power and duty of the court to assure fair trial and proper dispensation of justice. The court should search for justice and must be satisfied that justice is more likely to be done by refusing to allow the plaintiff to continue the suit in the forum of his own choice. Kulwinder Kaur v. Kandi Friends Education Trust [(2008) 3 SCC 659]. On the ground raised in Tr.P(C)No.183 of 2020 that, by transferring O.S.No.57 of 2020 from the Munsiff Court, Kayamkulam to the Sub Court, Ottappalam, multiplicity of proceedings and possibility of divergent findings can be avoided, the learned Single Judge opined that, since the prayer in O.S.No.57 of 2020 is for a permanent prohibitory injunction, the possession of the 1st respondent/plaintiff will be the prime consideration. The fact that he is claiming ownership based on a Will purported to have been executed by M.S. Chitra or that the property for which injunction is sought for is included in the schedule to the suit for partition, i.e., O.S.No.20 of 2020 pending before the Sub Court, Ottappalam, are not Tr.Appeal(C)No.7 of 2021 8 reasons for transferring O.S.No.57 of 2020 from the Munsiff Court, Kayamkulam.
8. The learned counsel for the appellant contended that, though O.S.No.57 of 2020 on the file of the Munsiff Court, Kayamkulam, is one seeking permanent prohibitory injunction, the 1st respondent/plaintiff is claiming ownership, possession and enjoyment of the plaint schedule property on the strength of an unregistered Will alleged to have been executed by M.S. Chitra on 06.10.2019. The plaint schedule property in that suit is plaint B schedule property in O.S.No.20 of 2020 pending before the Sub Court, Ottappalam, a suit filed by the 2 nd respondent seeking partition and allotment of one half share of plaint A and B schedule properties. Therefore, both the suits will have to be tried before the Sub Court, Ottappalam, in order to rule out the possibility of two courts recording findings inconsistent with each other on the issue relating to the unregistered Will alleged to have been executed by M.S. Chitra. Considering the nature of pleadings and the reliefs sought for in O.S.No.57 of 2020 and also the nature of defence, in view of the suit for partition filed as O.S.No.20 of 2020, the Munsiff Tr.Appeal(C)No.7 of 2021 9 Court will have to frame an issue in O.S.No.57 of 2020 regarding the plaintiff's title over the plaint schedule property. The learned counsel pointed out the provisions under Section 27(a) of the Kerala Court Fees and Suit Valuation Act, 1959. Therefore, in order to avoid multiplicity of proceedings and the possibility of conflicting decrees, O.S.No.57 of 2020 has to be transferred to the Sub Court, Ottappalam, for being jointly tried along with O.S.No.20 of 2020 pending before that court. The learned counsel for the 2nd respondent supported the arguments advanced by the learned counsel for the appellant.
9. Per contra, the learned counsel for the 1 st respondent contended that, as rightly opined by the learned Single Judge, the possession of the plaintiff alone is the prime consideration in O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam. Therefore, the fact that the plaint schedule property in O.S.No.57 of 2020 is plaint B schedule property in O.S.No.20 of 2020 pending before the Sub Court, Ottappalam, is not a valid ground to transfer O.S.No.57 of 2020 to the Sub Court, Ottappalam. The learned counsel for the 1st respondent contended further that the mere apprehension of the appellant Tr.Appeal(C)No.7 of 2021 10 of the possibility of two courts recording inconsistent findings is not a valid ground for transfer.
10. Section 24 of the Code of Civil Procedure, 1908, deals with general power of transfer and withdrawal and Section 25 deals with the power of the Supreme Court to transfer suits, etc.
11. In Indian Overseas Bank v. Chemical Construction Co. [(1979) 4 SCC 358], the Apex Court held that the principle governing the general power of transfer and withdrawal under Section 24 of the Code of Civil Procedure is that the court should not lightly change the forum and compel the plaintiff go to another court, with consequent increase in inconvenience and expense of prosecuting the suit. A mere balance of convenience in favour of proceedings in another court, albeit a material consideration, may not always be a sure criterion justifying transfer. As compared with Section 24, the power of transfer of civil proceedings to another court, conferred on the Apex Court under Section 25 is far wider and so the amplitude of expression 'expedient in the interest of Tr.Appeal(C)No.7 of 2021 11 justice' which furnishes a general guideline for the exercise of the power. Whether it is expedient or desirable in the interest of justice to transfer a proceedings to another court, is a question which depends on the circumstances of the particular case.
12. In Kulwinder Kaur v. Kandi Friends Education Trust [(2008) 3 SCC 659] the Apex Court held that, Section 24 of the Code of Civil Procedure empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any court subordinate to it to any other court for trial and disposal. The said provision confers comprehensive power on the court to transfer suits, appeals or other proceedings 'at any stage' either on an application by any party or suo motu. Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast- iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. On a reading of Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as Tr.Appeal(C)No.7 of 2021 12 to what may constitute a ground for transfer have been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; 'interest of justice' demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceedings. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a 'fair trial' in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order.
13. In Chitivalasa Jute Mills v. Jaypee Rewa Cement Tr.Appeal(C)No.7 of 2021 13 [(2004) 3 SCC 85], a decision relied on by the learned counsel for the appellant, the Apex Court held that the Code of Civil Procedure does not specifically speak of consolidation of suits but the same can be done under the inherent powers of the court flowing from Section 151 of the Code. Unless specifically prohibited, the civil court has inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. The parties are relieved of the need of adducing the same or similar documentary or oral evidence twice over in the two suits at two different trials. The evidence having been recorded, common arguments need to be addressed followed by one common judgment. However, as the suits are two, the court may, based on the common judgment, draw two different decrees or one Tr.Appeal(C)No.7 of 2021 14 common decree to be placed on the record of the two suits.
14. The law laid down in Chitivalasa Jute Mills was followed by the Apex Court in Shamita Singha v. Rashmi Ahluwalia [(2020) 7 SCC 152], another decision relied on by the learned counsel for the appellant. In that decision, the Apex Court was dealing with an application under Section 25 of the Code of Civil Procedure seeking transfer of CS (OS) No.2888 of 2014, a suit for partition and certain auxiliary reliefs instituted in Delhi High Court, and T. Petition No.821 of 2016 filed in the testamentary and intestate jurisdiction of the Bombay High Court on the basis of a Will dated 15.01.2014 executed by the deceased, namely, Pawan Kumar Singha. The plaintiff in CS (OS)No.2888 of 2014 was Reshmi Ahluwalia, the widow of the deceased, and the petitioner in T. Petition No.821 of 2016 was Shamita Singha, one of the daughters of the deceased. The Apex Court found that, the outcome of the probate proceeding would have impact on the suit for partition pending before the Delhi High Court. Majority of the assets in respect of which letters of administration have been sought for are common to those in respect of which partition is sought for. The Tr.Appeal(C)No.7 of 2021 15 testamentary proceeding would have a direct bearing or impact on the pending suit for partition. If the letters of administration are granted to the petitioner in the testamentary proceeding, then the assets of the deceased may not remain available as the partible estate of the deceased. In the plaint of the suit for partition the properties of the deceased have been listed in para.2 thereof, referring those assets as that of the deceased. The respondents are contesting the petition for grant of letters of administration. If the partition suit proceeds independently and the plaintiffs therein succeed, then there would be a possibility of inconsistent findings by the two High Courts, provided the petitioners succeed in the testamentary proceeding. Therefore, the Apex Court ordered that CS (OS)No.2888 of 2014 filed in the Delhi High Court be transferred from the said High Court to the Bombay High Court for joint trial along with T. Petition No.821 of 2016.
15. In Sini v. Suresh Jyothi [1996 (1) KLT SN 13 :
AIR 1996 Ker. 160], a decision relied on by the learned counsel for the 1st respondent, a Division Bench of this Court observed that mere apprehension of the petitioner-appellant is Tr.Appeal(C)No.7 of 2021 16 not sufficient to transfer a case from the file of the court to another. A reading of the said decision would show that, in that case the ground raised for transfer of O.P.(HMA)No.395 of 1995 from the Family Court, Thiruvananthapuram to the Family Court, Kollam, was that the presiding Judge of the Family Court, Thiruvananthapuram has made certain comments adverse to the interest of the appellant and she apprehends that she will not get justice from that court. The observation made by the Division Bench in paragraph 2 of the decision is one made in that context, which has no application in the facts of the case on hand.
16. In Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust [2005 (4) KLT 865], another decision relied on by the learned counsel for the 1st respondent, a Full Bench of this Court held that, when an application for transfer or withdrawal of a suit from one court is made under Section 24 of the Code of Civil Procedure, the court has to adjudicate that matter regarding transfer or withdrawal after issuing notice to the parties interested and after giving an opportunity of Tr.Appeal(C)No.7 of 2021 17 hearing. An order passed after such an adjudication is certainly appealable under Section 5(i) of the Kerala High Court Act, 1958. The Full Bench held further that, when an appeal is filed under Section 5(i) of the Kerala High Court Act, 1958 against the order passed under Section 24 of the Code of Civil Procedure by a learned Single Judge, the Division Bench must be reluctant to interfere in the matter unless it is manifestly illegal and erroneous or carrying grave or substantial injustice.
17. In Babu v. Kunjumol Nandiyanathayil [2017 (2) KLT 1011], another decision relied on by the learned counsel for the 1st respondent, a Full Bench of this Court held that no appeal under Section 5(i) of the Kerala High Court Act, 1958 could be maintained against an order passed by a learned Single Judge under Section 407 of the Criminal Procedure Code, 1973, either allowing or refusing to transfer a case or an appeal from one criminal court to another criminal court in the same Sessions Division. In the said decision, the Full Bench noticed that the power exercised by the High Court under Section 407 can be either in the form of appellate jurisdiction or revisional Tr.Appeal(C)No.7 of 2021 18 jurisdiction, as the case may be. It can never be an original jurisdiction, as the concept itself is different because there is no adjudication of a cause in a proceedings under Section 407. Since the power exercised by the High Court under Section 407 of the Criminal Procedure Code can never be an original jurisdiction, the Full Bench held that the order of a learned Single Judge in a proceedings under Section 407 is not appealable either under Section 5(i) or 5(ii) of the Kerala High Court Act. In the case on hand, the impugned order of the learned Single Judge is one passed under Section 24 of the Code of Civil Procedure, against which an appeal will lie under Section 5(i) of the Kerala High Court Act, as held by the Full Bench of this Court in Balan [2005 (4) KLT 865].
18. In the instant case, though O.S.No.57 of 2020 filed before the Munsiff Court, Kayamkulam, is one seeking permanent prohibitory injunction, the 1st respondent (plaintiff) is claiming ownership, possession and enjoyment of the plaint schedule property in that suit, on the strength of an unregistered Will alleged to have been executed by M.S. Chitra Tr.Appeal(C)No.7 of 2021 19 on 06.10.2019. The plaint schedule property in O.S.No.57 of 2020 is plaint B schedule property in O.S.No.20 of 2020 pending before the Sub Court, Ottappalam, a suit filed by the 2nd respondent seeking partition and allotment of one half share of plaint A and B schedule properties. Considering the nature of pleadings and the reliefs sought for in O.S.No.57 of 2020 and also the nature of defence, in view of the suit for partition filed as O.S.No.20 of 2020, the Munsiff Court will have to frame an issue in O.S.No.57 of 2020 regarding the plaintiff's title over the plaint schedule property. Therefore, the outcome of O.S.No.57 of 2020 would certainly have an impact on the suit for partition pending as O.S.No.20 of 2020. Therefore, if the two suits are allowed to continue in the original forum, there is a possibility of conflicting findings on the issue relating to the unregistered Will alleged to have been executed by M.S. Chitra. Therefore, it is manifestly expedient in the interest of justice that both the suits should be tried by the Sub Court, Ottappalam, in order to rule out the possibility of two courts recording findings inconsistent with each other on the above Tr.Appeal(C)No.7 of 2021 20 issue, otherwise substantial injustice would be caused to the appellant and the 2nd respondent.
19. In the above circumstances, we find that the judgment of the learned Single Judge warrants interference in this appeal, in exercise of the appellate jurisdiction of this Court under Section 5(i) of the Kerala High Court Act.
20. In the result, this appeal is allowed by setting aside the judgment of the learned Single Judge dated 13.07.2021 in Tr.P(C)No.183 of 2020 and the said transfer petition is allowed by transferring O.S.No.57 of 2020 pending before the Munsiff Court, Kayamkulam to the Sub Court, Ottappalam, for being jointly tried along with O.S.No.20 of 2020.
No order as to costs.
Sd/-
ANIL K. NARENDRAN JUDGE Sd/-
M.R. ANITHA JUDGE yd