Andhra Pradesh High Court - Amravati
This Transfer Civil Miscellaneous ... vs Bharat on 25 November, 2022
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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
TRANSFER CIVIL MISCELLANEOUS PETITION NO.21 OF 2022
ORDER:-
This Transfer Civil Miscellaneous Petition is filed by the petitioner, who is the defendant in Original Suit No.29 of 2018, on the file of learned XIII Additional District Judge, Narasaraopet, Guntur District, with a prayer to transfer the said case to the Court of II Additional District Judge, Guntur to be tried along with Original Suit No.371 of 2018, in the interest of justice.
2) The case of the petitioner, in brief, which is necessary to be extracted here, insofar as disposal of this petition is concerned is that the respondent filed O.S.No.29 of 2018, on the file of learned XIII Additional District Judge, Narasaraopet, Guntur District, against the present petitioner for recovery of amount on the strength of three promissory notes. The respondent did not disclose the true facts in the said suit. In fact, the petitioner filed O.S.No.371 of 2018, on the file of II Additional District Judge, Guntur, against the plaintiff in O.S.No.29 of 2018. In O.S.No.29 of 2018 the respondent alleged that the petitioner borrowed a sum of Rs.5,00,00,000/- on 28.11.2014, Rs.4,28,55,000/- on 28.11.2014 and further a 2 sum of Rs.2,89,35,000/- on 04.12.2014 and that later, she repaid Rs.90,00,000/-, Rs.35,00,000/-, Rs.10,00,000/- towards part discharge of the said debt. With the same averments, respondent filed a complaint under Section 138 of Negotiable Instruments Act i.e., C.C.No.329 of 2018 on the file of the II Additional Junior Civil Judge, Narasaraopeta. The present petitioner filed O.S.No.371 of 2018 before the II Additional District Judge, Guntur with a prayer to cancel two sale deeds. These two sale deeds are matching and corresponding to the borrowings, dated 28.11.2014 and 04.12.2014. The subject matter in the suit filed by the petitioner in O.S.No.371 of 2018 and in O.S.No.29 of 2018 filed by the respondent are one and same. Petitioner filed O.S.No.371 of 2018 which is a comprehensive in nature. In fact, the plaintiff in O.S.No.29 of 2018 obtained two sale deeds from the petitioner on the date of execution of the promissory notes without paying sale consideration and by playing fraud and misrepresentation by colluding with the husband of the petitioner. Petitioner has to let in evidence in both the suits to explain how the respondent played fraud on her. The suit filed by the petitioner is praying for a declaratory decree. If O.S.No.29 of 2018 is allowed to be tried independently, true facts will not come into light and there 3 is every possibility that in both the trials there is ever likelihood of getting conflicting judgments. The nature of the evidence to be let in and the witnesses that are to be examined in both the suits are one and same. In fact, the present petitioner filed a detailed written statement in O.S.No.29 of 2018 narrating about the pendency of the suit in O.S.No.371 of 2018 filed by the petitioner to cancel the sale deeds. The trial Court is insisting the petitioner to proceed with the trial upon the pressure applied by the respondent. The respondent is very eager to get the money suit decreed to take upper hand and he is avoiding to the face trial in O.S.No.371 of 2018. Hence, the petition.
3) The respondent got filed a counter denying the averments in the petition and contending in substance that in the suit filed by the plaintiff in O.S.No.371 of 2018 on the file of the II Additional District Judge, Guntur, he is shown as third defendant. O.S.No.29 of 2018 is pending before the XIII Additional District Judge, Narasaraopeta and O.S.No.371 of 2018 is pending before the II Additional District Judge, Guntur. Both the Courts are the subordinate to the District Court as per Section 3(a) of 24 of Code of Civil Procedure ("C.P.C." for short). Thus, the petition for transfer of O.S.No.29 of 2018 before this Court is not maintainable, as this type of petition has to be filed 4 before the District Court at Guntur. He filed O.S.No.29 of 2018 for recovery of huge amount under the three promissory notes executed by the petitioner. The petitioner filed written statement admitting about the execution of three promissory notes and passing of consideration thereunder. She took a plea that her husband prevailed upon her to execute these three promissory notes. Now, it is not open to the petitioner to contend that the beneficiary of the promissory notes was someone else. She is dragging on the trial of the said suit of the respondent. Even she filed an application in I.A.No.86 of 2020 in O.S.No.29 of 2018 under Order VII, Rule 11 of C.P.C. to reject the plaint and ultimately it is dismissed for default on 01.04.2022. She did not take any steps for its restoration. Now, the suit is part heard. Previously, she was set exparte for not proceeding with the cross examination of P.Ws.1 and 2. Later, she got the same set aside by filing Interlocutory Application. Now, the matter is coming on 14.11.2022 for cross examination of P.Ws.1 and 2. In fact, petitioner sold her landed property to him under two registered sale deeds and delivered possession thereof. Respondent got the land converted into non-agricultural for development purpose. So, when the respondent filed O.S.No.29 of 2018 and C.C.No.322 of 2018 at Narasaraopeta, the present 5 petitioner filed O.S.No.371 of 2018, seeking to declare the two sale deeds as obtained by playing fraud on the petitioner. There are no common questions of facts to be tried. Both the suits cannot be clubbed. At best the petitioner can obtain the copies of the promissory notes and the cheques and can file the same in O.S.No.371 of 2018. So, there are no grounds for withdrawal of the suit in O.S.No.29 of 2018 from the Court of XIII Additional District Judge, Narasaraopet.
4) Now, the point that arises for consideration is that whether the suit in O.S.No.29 of 2018 pending on the file of the Court of XIII Additional District Judge, Narasaraopet, is liable to be transferred to the Court of II Additional District Judge, Guntur, where O.S.No.371 of 2018 is pending?
Point:-
5) The learned Senior Counsel, Sri Posani Venkateswarlu, would contend that the High Court as well as the Principal District Court have concurrent jurisdiction under Section 24 of C.P.C. and it is not necessary that the petitioner should approach before the District Court and this petition is maintainable without approaching the District Court. He would invite the attention of the Court that nothing is there in Section 24 of C.P.C. that the party has to approach the District Court 6 first to get transfer any case pending in any Court in the District to any other Court in the District and insofar as Criminal Cases are concerned, under Section 407 of Cr.P.C., no application under Section 407 of Cr.P.C. shall lie to the High Court for transferring a case from one criminal Court to another criminal Court in the same Sessions Division, unless an application for such transfer has been made to the Sessions Judge and rejected by him. So, no such embargo like in Section 407 of Cr.P.C. is there in Section 24 of C.P.C.
6) He would further rely upon the decisions in (1) Kvaerner Cementation India Limited, Mumbai vs. Bharat Heavy Plate and Vessels Limited, Visakhapatnam1 and (2) Munnangi Ramakrishna Rao vs. Dr. Vanakuru Venkata Siva Ramakrishna Prasad and others 2 to contend that the High Court as well as the District Court have concurrent power of jurisdiction insofar as transferring of Civil Cases from one Court to another subordinate to those Courts.
7) He would further rely upon a decision in Kanumuri Raghurama Krishnam Raju vs. State of Andhra Pradesh and others3 to contend that Section 439 of Criminal Procedure Code ("Cr.P.C." for short) is relates to special powers of High 1 2001 SCC OnLine AP 502 2 2003 SCC OnLine AP 438 3 2021 SCC OnLine SC 421 7 Court or Court of Session regarding bail and they have concurrent jurisdiction to entertain bail applications and it is not necessary that first Sessions Court shall be approached. The language in Section 24 of C.P.C. is also similar, as such, this Court has jurisdiction to entertain the Transfer Civil Miscellaneous Petition, though the petitioner did not move the Principal District Judge at Guntur.
8) Coming to the merits of the prayer, he would submit that the subject matter pertaining to O.S.No.29 of 2018 filed against the present petitioner by the respondent is to recover crores of rupees under the guise of three promissory notes. He would contend that the petitioner filed O.S.No.371 of 2018 to cancel the registered sale deeds. In the said suit, the petitioner clearly pleaded about the subject matter of the promissory notes in O.S.No.29 of 2018. Her prayer in O.S.No.371 of 2018 is linked with the subject matter of the promissory notes in O.S.No.29 of 2018 and she filed written statement in O.S.No.29 of 2018 pleading all the facts, as such, if both suits are tried by separate judicial officers, there is ever likelihood of conflicting decisions, as such, the Transfer Civil Miscellaneous Petition may be allowed.
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9) The learned counsel for the respondent, Sri G.V.S. Mehar Kumar, would contend that the petition before this Court is not maintainable, as the petitioner did not move the Principal District Court at Guntur, though the XIII Additional District Court and the II Additional District Court are located in Guntur jurisdiction. He would further submit that the suit in O.S.No.29 of 2018 is part heard and the matter is coming for cross examination of P.Ws.1 and 2 and the petitioner took several adjournments and dragged the matter and as a last resort to stall the proceedings, she filed the present application, as such, the Transfer Civil Miscellaneous Petition is liable to be dismissed.
10) Admittedly, Section 24 of C.P.C. deals with the general power of transfers of the High Court as well as the District Court to transfer the cases from the file of one Court to another subordinate to them. Admittedly, no provision like in Section 407 Cr.P.C. enjoining that High Court shall not entertain an application under Section 407 Cr.P.C., unless the party first approaches the Sessions Judge, is not therein under Section 24 of C.P.C. Apart from this, the learned counsel for the petitioner would rely upon certain decisions.
11) Coming to the case Kvaerner Cementation India Limited's case (1 supra), the facts were that petitioner filed a 9 petition before the High Court of Andhra Pradesh to transfer O.P.No.1743 of 2000 on the file of Principal District Judge, Visakhapatnam to the file of any other Additional District Judge. In fact, the learned Principal District Judge dismissed the petition on the ground that Additional District Judge has no jurisdiction to entertain O.P.No.1743 of 2000 under Arbitration Act. It was challenged before the High Court of Andhra Pradesh. In the said case, High Court held that it is well settled the District Judge and High Court have concurrent power or jurisdiction to transfer the cases under Section 24 of C.P.C. and the proceedings for transfer can be instituted either simultaneously or separately before the High Court and District Judge. Therefore, even after dismissal of the petition by the District Court, a fresh application seeking transfer can be filed before the High Court under Section 24 of C.P.C.
12) Coming to the case in Munnangi Ramakrishna Rao's case (2 supra), it was a case where a petition was filed before the District Judge to transfer O.S.No.551 of 2002 from the file of Principal Junior Civil Judge, Tenali to the Court of Additional Senior Civil Judge, Tenali, to be tried along with a connected suit in O.S.No.184 of 2002 and it was dismissed. Then the party filed another Transfer Civil Miscellaneous Petition before the High 10 Court. There was a question arose before the Division Bench as to whether as against such an order, a revision is maintainable under Section 115 of the Code. The High Court answered the issue negative and held that a plain reading of Section 24 of C.P.C. shows that both the High Court and District Court have concurrent jurisdiction to transfer proceedings in any Court subordinate to them to another Court either suo-motu or on an application by any of the parties to the proceedings.
13) In view of the above two decisions, it is clear that party need not approach the District Court to get the transfer of a case pending before a Court in District to another Court in the District. The learned counsel for the respondent did not submit any contrary authorities in this regard.
14) Apart from this, in another decision in Kanumuri Raghurama Krishnam Raju's case (3 supra), the appellant therein filed an application for bail before the High Court under Section 439 Cr.P.C. and the High Court of Andhra Pradesh directed the petitioner to approach the trial Court first. Then the matter was canvassed before the Hon'ble Supreme Court where the Hon'ble Supreme Court held that the jurisdiction of the trial Court as well as High Court under Section 439 Cr.P.C. is concurrent and merely because the High Court was approached 11 by the appellant without approaching the trial Court, it would not mean that High Court could not have considered the bail application of the appellant. The High Court ought to have considered the bail application of the appellant on merits and decided the same.
15) So, it is clear that when the High Court as well as the District Court have concurrent jurisdiction in view of the language under Section 24 of C.P.C., a party cannot be compelled to approach the District Court first, in view of the above two decisions dealing with Section 24 of C.P.C. The language under Section 439 Cr.P.C. means that High Court and Sessions Court have concurrent powers or jurisdiction. In such scenario, the Hon'ble Supreme Court held that party cannot be compelled to first approach the Sessions Court to file application under Section 439 Cr.P.C.
16) Having regard to the above, I am persuaded to accept the contention of the learned Senior Counsel that the prayer of the petitioner cannot be rejected on the ground that petitioner did not move this type of application before the concerned District Court.
17) Coming to the merits, it is well settled that under Section 24 of C.P.C., the Court is empowered to grant the relief, 12 if it is found that it is in the interest of justice, both the suits shall be tried by the same judicial officer. As evident from the pleadings in O.S.No.29 of 2018, the respondent made the suit admittedly to recover huge amounts from the petitioner on the strength of the so-called promissory notes executed by her. As evident from the copy of the plaint in O.S.No.371 of 2018, the respondent is shown as second defendant. The petitioner herein filed the said suit to declare that the registered sale deed, dated 28.11.2014 and 04.12.2014 executed by her in favour of second defendant are bad and liable to be cancelled on account of fraud, misrepresentation and undue influence and to grant a permanent injunction in respect of A and B schedule property. In the plaint, she pleaded about the subject matter of the promissory notes in O.S.No.29 of 2018. So, her defence is that the so-called registered sale deeds which are sought to be declared as vitiated by fraud, misrepresentation and undue influence and the subject matter of the promissory notes pertaining to O.S.No.29 of 2018 are interlinked with each other. The date of promissory notes and the so-called sale deeds are of one and same date. It is clear from the copy of the written statement in O.S.No.29 of 2018 that she put forth such a defence as averred in O.S.No.371 of 2018.
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18) So, the facts and circumstances are such that if both the suits are tried by different judicial officers, there is ever likelihood of getting conflicting judgments. On the facts, this Court is of the considered view that it is absolutely, in the interest of justice, that both suits are desirable to be tried by same judicial officer to avoid any conflicting judgments.
19) Turning to the contention of the learned counsel for the respondent that the matter is coming for cross examination of P.Ws.1 and 2 and once the matter was also set exparte and the petitioner at the fagend filed the application to stall the proceedings, I am of the considered view that the delay on the part of the petitioner in approaching this Court in the year 2022, though the suit is of the year 2018, does not warrant this Court to refuse the prayer especially on facts. It is clear that both the suits are to be tried by one and the same Court. Under the circumstances, I am of the considered view that ends of justice will meet, if time bound directions are given to curb the delay in disposal of the matter.
20) In the result, the Transfer Civil Miscellaneous Petition is allowed withdrawing the Original Suit No.29 of 2018, on the file of learned XIII Additional District Judge, Narasaraopet, Guntur District and transferring the same to the 14 Court of II Additional District Judge, Guntur, to be tried along with Original Suit No.371 of 2018, as expeditiously as possible, not later than six months from the date of receipt of this order. The petitioner shall cooperate with the trial Court for disposal of the matter, in accordance with law, as directed by this Court, within the stipulated time. There shall be no order as to costs.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 25.11.2022.
PGR 15 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU Tr.C.M.P.NO.21 OF 2022 Date: 25.11.2022 PGR