Andhra HC (Pre-Telangana)
T.Niranjan vs Ch.Ramesh Chander Reddy on 31 October, 2012
Equivalent citations: AIRONLINE 2012 AP 75, (2013) 127 ALLINDCAS 827 (2013) 2 ANDHLD 350, (2013) 2 ANDHLD 350
Author: N.R.L.Nageswara Rao
Bench: N.R.L.Nageswara Rao
THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO Tr.C.M.P.No.537 OF 2012 31.10.2012 T.Niranjan Ch.Ramesh Chander Reddy Counsel for the Petitioner: Counsel for the Respondent: <Gist: >Head Note: ?Cases referred: 1) AIR 2011 AP 104 2) 1913 Indian Cases 6 3) AIR 1960 CALCUTTA 565 ORDER:
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This petition is filed for transfer of O.S.No.644 of 2010 on the file of the Court of II Additional Chief Judge, City Civil Court, Hyderabad, to the Court of the Chief Judge, City Civil Court, Hyderabad, as the connected suits O.S.No.317 of 2010 and O.S.No.248 of 2011 are pending on the file of the Chief Judge, City Civil Court, Hyderabad.
2. It is alleged that the petitioner is the defendant in all the three suits and there was an understanding with regard to the payments of the amounts and the defence in all the suits is common and nature of evidence to be adduced is the same. When this Court questioned as to why the application is filed before this Court when the remedy under Section 24 of the Code of Civil Procedure, 1908 (for short, 'CPC') can be availed before the Chief Judge, the learned Counsel for the petitioner contended that in view of the decision of this Court reported in Manchukonda Venkata Jagannadham v. Chettipalli Bullamma and others1, the said transfer application is not being entertained and consequently it has become a bar.
3. According to the purport of the above judgment, Additional District Judge is not subordinate to the District Judge and consequently, the District Judge has no power to transfer the same and cannot exercise the power under Section 24 CPC for transferring of any cases from his file or withdrawing the cases from the file of the Additional District Judge. He did not agree with the Judgment of the Karnataka High Court and also found that under Section 24 CPC it is difficult to import that Additional and Assistant Judges referred to means Additional District Judge and consequently held that the transfer application cannot be entertained by the District Judge.
4. Before considering the maintainability of the application, it is to be noted that the purpose of procedural law is for the convenience of the parties and the Court. It is always aimed at speedy and less expensive remedy to the parties. Any effort to interpret the procedural law should be necessarily with the object of the interest of the parties unless there is any mandatory prohibition for exercise of any power. It is also to be noted that more importance has to be given to the provisions of the CPC rather than the provisions of the other Act, if they are not in conflict or in exclusion.
5. Section 24 CPC is as follows:
"24. General power of transfer and withdrawal:-
(1) 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) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Whereas any suit or proceeding has been transferred or withdrawn under sub section (1), the Court which1 [is thereafter to try or dispose of such suit or proceeding] it or proceed from the point at which it was transferred or withdrawn.
2[(3) For the purposes of this section,-
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) "proceeding" includes a proceeding for the execution of a decree for order.] (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]
6. Evidently, under Section 24(3)(a) CPC Additional and Assistant Judges shall be deemed to subordinate to the District Court. The view of the learned Judge in the above referred decision is to the effect that the Additional District Judge is not subordinate to the District Judge and consequently the power under Section 24 CPC cannot be exercised by the District Judge. In short, the view of the learned Judge is that Additional Judge and Assistant Judge referred under Section 24(3)(a) CPC is only with reference to the Senior Civil Judges or Junior Civil Judges or the Additional chief Judges or Assistant Judges in the City Civil Courts. I think this view of the learned Judge has to be taken into consideration only if there is no provision under the Code. Section 3 of the CPC is as follows:
"3. Subordination of Courts:- For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court".
This provision unambiguously shows that every Civil Court which is inferior in grade is subordinate to the District Court, thereby the Senior Civil Judges and Junior Civil Judges, who are inferior in grade to the Court of the District Judge are subordinate. If the legislature intended the same provision under Section 24 CPC, there is no need to mention under Section 24(3)(a) CPC that Additional and Assistant Judges are subordinate to the District Judge. Further-more, when the statute itself and the section itself are clear or unambiguous, there is no need to fall back on any other aid to arrive at a decision.
7. As can be seen from section 24 CPC, under Section 24(1)(a) CPC, the District Court at any stage can 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 in any court subordinate to it. Therefore, the power that can be exercised by the District Judge includes the power of transfer from his Court and power of withdrawal to his Court. It is to be further noted that such a transfer power exercised by the District Judge should be a transfer to a Court subordinate to it and competent to try the same. Evidently, the suits or appeals, which are triable by the District Judge, cannot be transferred to the inferior Court like Senior Civil Judges or Junior Civil Judges. There is no denial of the fact that the law has been fairly well settled that the competency to try a suit includes the territorial and pecuniary jurisdiction of the Court. Therefore, it follows that the District Judge cannot transfer a suit, which is triable by him to the other inferior Court. Consequently, if the intention of the legislature is that the District Judge has no power to transfer the case to the Additional District Judge, then there need not have been the provision under Section 24(1) CPC for transfer or withdrawal by him to his Court or from his Court. Therefore, it is quite clear that the legislature has purposefully stated under Section 24(3)(a) CPC that the Additional and Assistant Judges are subordinate to the District judge. It is evidently for the purpose of including the Additional District Judges or Additional Judges of any cadre. If such a power is not from District Judge, then the purpose of Section 24(1)(a) and 24 CPC will be lost.
8. Further-more, Section 24 CPC does not say that Additional and Assistant Judges are only Senior or Junior judges. If one looks at the definition of a Judge under Section 2(8) CPC, 'Judge' means the Presiding Officer of a Civil Court. Therefore, the Additional District Judges, Senior Civil Judges or Junior Civil Judges are the Presiding Officers of the Court. Therefore, by taking into consideration the definition of 'District' under Section 2(4) CPC, the Principal Civil Court is the District Court.
Section 2(4) CPC, reads as under:
"(4) "district" means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court;"
9. In fact, even under the A.P. Civil Courts Act, 1972, it is the power of the District Judge to allot the work and thereafter only the Additional District Judge can dispose of the case with all the powers as a District Judge. In fact, under the scheme of the A.P. Civil Court Act, the appointment of the Additional District Judges or any Additional Judges is only in cases where the requirement of the parties pending in a District Court is taken into consideration under Section 11 of the A.P. Civil Courts Act, which reads as follows:
11. Appointment of Additional District Judges:- (1) Where in the opinion of the High Court, the state of business pending in a District Court, so requires, the Government may, after consultation with the High Court, appoint one or more Additional District Judges to the District Court for such period as they may deem necessary.
(2) An Additional District Judge so appointed shall perform all or any of the functions of the District Judge under this Act or any other law for the time being in force which the District Judge may assign to him, and in the performance of those functions, he shall exercise the same powers as the District Judge".
10. In fact, the provision under Section 24(3)(a) CPC is an age-old provision under CPC and was found in the original Act, 1908 and what was introduced, by way of amendment in 1976 is Section 24(3)(b) CPC as there was a conflict of decisions with regard to the interpretation of the proceedings and that has been clarified by amending CPC in 1976. But, the Code itself originally contains Section 24(3)(a) CPC and the opinion of the learned Jude in para No.14 of the above decision is not correct.
11. If the District Judge has no power to entertain the transfer application, the difficulties of the litigants will be many. For example, in case from a single or common judgment connected appeals were filed and they were made over to different District Courts, then if the District Judge has no power to transfer, every litigant has to come to the High Court, which definitely might not be the intention of the legislature. So also, if in a motor accident claim, several claims are filed from the same accident and they are pending in different Additional Courts and if the District Judge has no power to transfer the connected cases and if the claimants are to approach the High Court only, apart from the expensiveness the other difficulties cannot be ignored. Therefore, the purpose of power under Section 24 CPC conferred on the District Judge is for the benefit of the litigants and this power is consistent with the power to distribute the work by the District Judge. Even if an application is not filed, the District Judge can suo-motu exercises the power. It is evidently meant for the cause of justice and not for delays or difficulties to the litigants.
12. In this connection, it is useful to refer to a decision of Punjab High Court reported in Obrien, M.W. Vs. Haji Abdul Rahman and another2 (Civil Revision No.2441 of 1911), whereunder it was specifically held that under Section 24(3) CPC the District Judge has got power to transfer a case pending before him to the Court of the Additional District Judge. Further it has been held that-
"the first plea urged for the petitioner for our disposal is that the Additional District Judge, who passed the decree had no jurisdiction. The District Judge, who recorded the evidence not being empowered to transfer a case to the Additional District Judge, the Court being of co-ordinate jurisdiction, in our opinion, Section 24(3) of CPC disposes of this objection, which must be overruled".
The above decision was followed in In Re: Abdul Malik of the High Court of Calcutta decided on 24.12.1987 (MANU/WB/0383/1987).
13. Further it will be also useful to refer to a Division Bench of the Calcutta High Court reported in Ajit Kumar Bhunia Vs. Sm. Kanan Bala Deyi3. As per the scheme of Section 3 of the Bengal, Agra and Assam7-10 Civil Courts Act, the Civil Courts are (1) the court of the District Judge; (2) the Court of the Additional Judge; (3) the court of the Subordinate Judge; and (4) the Court of the Munsif.
14. Under Section 8 of the above Act, power was given to appoint Additional Judges for speedy disposal of the cases when the business pending before the District Judge requires the aid of the Additional Judges, which is also akin to Section 11 of the A.P. Civil Courts Act. It will be useful to extract the observation of the Division Bench in para No.17 of the judgment, as under:-
"Section 24 of the Code of Civil Procedure postulates transfer to a competent court, such competency to be found in and by virtue of some other statutory provision, notification or otherwise and not under or by virtue of anything, contained in the said section. Section 24, itself. Section 8 (2) of the Bengal, Agra and Assam Civil Courts Act is, however, differently worded and, under it, the necessary authority or competency, in the absence of anything to the contrary in the nature of the particular proceeding or in the particular statute, under which the same has been taken, is inherent in the assignment itself And the mere assignment, as stat-ed hereinbefore, carries with it, in such cases, the necessary competency or authority, provided, of course, -- but provided only, -- that the transferee Judge is an "Additional Judge", -- and, as seen above, an Additional District Judge is obviously such "Additional Judge" in the relevant context. Under Section 24, the District Judge can transfer only to a competent court, such competency to be found otherwise and outside the section. Under Section 8(2) of the Bengal, Agra and Assam Civil Courts Act, however, the District Judge can transfer to an Additional Judge or an Additional District Judge and, as noted hereinbefore, in the absence of anything to the contrary, the Additional Judge's competency in that behalf can be assumed or presumed, as it follows from the assignment itself in view of the terms of the said Section 8 (2) itself. Reliance on Section 24, therefore, may not solve the problem, particularly when, in view of the above Supreme Court pronouncement, it may not be proper to regard the Additional District Judge as a Judge of the Court of the District Judge and as possessing, accordingly, co-ordinate authority with him."
15. A reading of the above provision clearly shows that by the fact, the power of transfer is inherent with the power of assignment of the work. In fact, in several other decisions, the power of the District Judge to transfer the cases under Hindu Marriage Act or the Election Petitions and even the Land Grabbing Cases has been considered and confirmed. Therefore, in view of the above circumstances, the power of transfer vested in the District Judge cannot be curtailed by restricted meaning when the intention and purpose of the same, is for the convenience of all.
16. Therefore, I hold that the application for transfer has to be moved before the District Judge, who is competent to entertain and accordingly with a liberty to the petitioner to file the application before the Chief Judge, City Civil Court, the transfer case is disposed of and the Chief Judge shall dispose of the same according to law.
17. With the above observation, the Transfer Civil Miscellaneous Petition is disposed of at the state of admission. No costs. Miscellaneous Petitions, if any, pending in this petition shall stand closed. Registry is directed to communicate the copy of the order to all the District Judges in the State.
_______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:31.10.2012