Delhi High Court
Shriram Pistons & Rings Ltd. vs Manju Awasthy on 1 May, 1997
Equivalent citations: 1997IVAD(DELHI)689, 68(1997)DLT112, (1997)117PLR15
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
(1) The petitioner is aggrieved by the order passed under Section 24 of the Code of Civil Procedure by the District & Sessions Judge, transferring a suit for ejectment against the petitioner from the Court of the Civil Judge to the Court of the Additional District Judge, where another suit for recovery of mesne profits, filed by the respondent against the petitioner, was pending. The above two suits had been filed by the respondent-landlady against the petitioner-tenant.
(2) Vide orders dated 19.12.1996, the District & Sessions Judge allowed an application moved by the respondent for transfer of suit for ejectment, viz. Suit No. 369/95, filed by the respondent against the petitioner, before the Civil Judge to the Court of Shri S.S. Bal, Additional District Judge, where Suit No. 91/95 for recovery of mesne profits was pending. The District & Sessions Judge by order dated 20.1.1997 also dismissed the application moved for review of the order dated 19.12.1997.
(3) The learned District Judge rejected the submission of the petitioner of loss of right of appeal occasioned by the transfer and the prejudice that would ensue, relying on the decision of this Court in Smt. Shanta Sabharwal v. Smt. Sushila Sabharwal . Again, while dismissing the application for review the learned District & Sessions Judge held that in a pending case it is not certain as to which party would go in appeal. Accordingly, the loss of the right of appeal may be of either of the parties and prejudice, if any, can be caused to both the parties. He also held that the impugned order of transfer was in harmony with the decision in Smt. Shanta Sabharwal (supra). He observed that even the obiter in Smt. Shanta Sabharwal (supra) would be binding on the District Courts.
(4) Mr. R.S. Endlaw, learned Counsel for the petitioner, has firstly submitted that the learned District Judge was in error in relying upon the decision in Smt. Shanta Sabharwal (supra). The said decision did not deal with question of validity of transfer under Section 24, Cpc, when a right of appeal was lost. Mr. Endlaw appears to be right in his submission that in the above decision, the question before the Court was with regard to the maintainability of an appeal under Section 10(1) of the Delhi High Court Act, against the order of Single Judge of this Court, declining an amendment in a suit for partition of a joint Hindu family. The Court in the above case followed the earlier decision of the Full Bench, reported in University of Delhi v. Hafiz Mohd. Said and held that the maintainability of an appeal against an order of a Single Judge, exercising ordinary civil jurisdiction in Delhi High Court is governed by the provisions of .the Code of Civil Procedure and not by those of Letters Patent. There is a reference made to transfer of the suits under Section 24 of the Code of Civil Procedure, in the above decision on which learned Counsel for the respondent placed reliance : "IT is also well settled that the transfer of a suit from a Subordinate Court to the High Court under Section 24 of the Code of Civil Procedure does not in any way change the nature of the suit. The procedure governing the suit remains the same whether it is tried by a Subordinate Court or by High Court except insofar as the High Court in exercise of its rule making power has made different rules, in respect of suits tried by it. Rules framed by this Court for the trial of suits on its original side do not make any orders passed by Single Judges exercising original civil jurisdiction which is really extraordinary original civil jurisdiction appealable except under Section 104 and Order 43, Civil Procedure Code."
(5) The above obiter observations cannot form the basis or support the impugned order, the justification for which would, perhaps, lie else where.
(6) It was put to Mr. Endlaw that the transfer of the suit for ejectment, which was pending before the Civil Judge, to be tried alongwith the suit for mesne profits, which was before the Additional District Judge, would subserve the ends of justice. The parties were the same and evidence on most of the issues would be common. Besides, it would avoid the multiplicity of the proceedings and help in an expeditious trial. These reasons, though not set out in the impugned order, were sufficient for the exercise of the powers under Section 24 of the Code of Civil Procedure by the District & Sessions Judge.
(7) Mr. Endlaw, learned Counsel for the petitioner, then assailed the impugned order on other grounds. It was submitted that the suit for ejectment had been valued for the purposes of Court fee and jurisdiction at Rs. 66,180.00 and in accordance with the provisions of Section 15 of the Code of Civil Procedure, it had been instituted in the lowest Court of competent jurisdiction, i.e. the Civil Judge. The transfer of this suit to the Court of the Additional District Judge would, apart from affecting the right of appeal, would be in violation of the principle enshrined in Section 15 of the Code of Civil Procedure. It was further submitted that normally the District Judge ought not to transfer the suits from the Court of lowest competent jurisdiction to try the suit to the Courts of higher jurisdiction to which ordinarily an appeal lies. Mr. Endlaw contended that as a result of the transfer of the suit by the impugned order, a valuable right of appeal, which is a substantive right, had been taken away. Appeal against an order passed by the Civil Judge would lie before the District Judge and, thereafter to the High Court. As a result of the transfer, there would be only one appeal to the High Court.
(8) Coming to the objection raised by Mr. Endlaw that the transfer of the suit from the Court of the Civil Judge to the Court of the Additional District Judge violated Section 15 of the Code of Civil Procedure, which enjoined the filing of the suit in the lowest grade competent to try it which was being Court of the Civil Judge. This question had come up for consideration before the Division Bench in Dronavajjula Vidyamba v. Vallabhajosyula Kakshmi Venkayamma (AIR 1958 A.P.218). A suit had been transferred under Section 24, Civil Procedure Code from the District Munsif's Court to that of the Subordinate Judge. The decree passed by the Subordinate Judge was assailed as null and void on the ground that he had no jurisdiction to try the suit having regard to the provisions of Section 15, CPC. The Court observed that it cannot be held that the Subordinate Judge had no jurisdiction to try the suit. What Section 15 provides is that every suit shall-be instituted in the Court of the lowest grade competent to try it. Competency contemplated by the section is only pecuniary competency. It has been held by the Madras High Court in Augustine v. Medlycot (ILR 15 Madras 241(B), that there was no lack of jurisdiction for the superior Court to try the suit. The Court reviewed the case law and noted with approval the above interpretation of Section 15, CPC. Gaurachandra Patnaikudu v. Vikramadeo, reported at Ilr 23 Madras 367 held Section 15 to be a rule of procedure and not of jurisdiction, a direction to the suitor and not an absolute rule binding on the Court. The Court held that Section 15 lays down a rule of procedure and not of jurisdiction and there is no ouster of the jurisdiction of the superior Court in such cases. Following the above decisions, it is held that the transfer of ejectment suit from the Court of Civil Judge to the District Judge will not be on account of non-compliance with Section 15, CPC. The Additional District Judge, whose pecuniary jurisdiction is higher will have the jurisdiction and competency to try the suit.
(9) At this stage, reference may also be made to another decision relied on by the petitioner reported in Syndicate Bank v. K. Gangadhar and Ors. . In this decision, suits for enforcement of mortgage by sale of immovable properties filed in the Court at Puttur were ordered to be transferred and tried alongwith a recovery suit between the parties pending before the Civil Judge, Chikmagalur. The transfer had been sought by the defendants on the ground that parties in both the suits were the same and defense and evidence would be the same. The Court held that the suit for enforcement of mortgage by sale of immovable properties was directly governed by Section 16-C, Civil Procedure Code and the suit had been transferred to the Court in Chikmagalur, which did not have territorial jurisdiction to try the subject matter of the suit. The High Court permitted the re-transfer of the suit to the Court in Puttur. Learned Counsel for the petitioner had, therefore, urged that in terms of Section 24(1)(b)(ii), Civil Procedure Code the intention of the Legislature was that the Court to which suit or pleadings are transferred must be competent to try or dispose of the case. He relied on the observation that the transferee Court must be competent to try or dispose of the case in the sense that in addition to pecuniary jurisdiction, it should have territorial jurisdiction. The aforesaid decision would not advance the petitioner's case. The present case is not one where the matter is beyond the territorial and pecuniary limits of the transferee/superior Court. It is only a departure from Section 15, Cpc, a rule of procedure of the suit not being tried by the Court of the lowest competent grade.
(10) Learned Counsel for the petitioner next argued that the loss of right of an appeal is a relevant consideration in judging the question of competency under Section 24, CPC. Learned Counsel submitted that the right of appeal is a substantive right, which cannot be taken away except by legislative mandate. He relied on Garikapatti Veeraya v. N. Subhiah Choudhury (1957 S.C. 488). In this case, the suit had been instituted on April 22,1949 and was valued at Rs. 11,400.00. The Trial Court had dismissed the suit, while the High Court has reversed the decision of the Trial Court. The leave to appeal to the Supreme Court had been refused by the High Court on the ground that the value of the subject matter was less than Rs. 20,000.00. The appellant had contended that he had a right of appeal to the Federal Court, when the suit was instituted and the said Court having been substituted by the Supreme Court, he had the right to appeal. The Apex Court held that "the vested right of appeal was a substantive right and, although it could be exercised only in case of an adverse decision, it was governed by the law prevailing at the time of commencement of the suit and comprised all successive rights of appeal from Court to Court, which really constituted one proceeding. Such a right could be taken away only by a subsequent enactment either expressly or by necessary intendment." There can be no quarrel with the proposition as laid down by Apex Court in the above case. Learned Counsel for the petitioner also sought to draw support from the judgment in A.R. Antulay v. R.S. Nayak and Am. . According to the learned Counsel, this case supports the proposition that right of appeal being taken away by a Court direction, transferring the case, tantamounted to violation of Article 14 of the Constitution of India.
(11) The question of right of appeal being taken away as a result of exercise of powers under Section 24, Civil Procedure Code happened to be considered in Sarjudei v. Rampati Kunwari . The Court in this case was concerned with the amendment to the Bengal, Agra and Assam Civil Courts Act. As a result of amendment therein, the District Judges became competent to hear appeals against decree in suits valued upto Rs. 10,000.00. The Court held that the High Court could transfer the appeals to the District Judges and this did not affect the vested rights of litigants to have appeal disposed of by the High Court. The Court observed that "the right of a litigant to an appeal is always subject to right of the High Court to transfer it under Section 24, CPC. If the District Judges are competent to dispose of appeals, the High Court has the power under Section 24 to transfer appeals to them, regardless of the question of the right of the parties to have them disposed of by the High Court." It was further observed that so far as provisions of Section 24, Civil Procedure Code are constitutional, the argument that it takes away vested right of appeal is one that cannot be entertained by this Court.
(12) Mr. Endlaw, learned Counsel for the petitioner, argued that this decision was over-ruled by the Apex Court in Lakshmi Narain v. First Additional District fudge, Allahabad and Ors., (AIR 1964 S.C.C. 489). Mr. Endlaw argued that the decision of transfer the suit to the District Courts by the Allahabad High Court having been over-ruled by the Supreme Court, the Apex Court did not uphold the doctrine adopted by the Allahabad High Court of the vested right of a litigant to an appeal, being subjected to the right of transfer under Section 24, CPC. The Apex Court in Lakshmi Narain v. first Additional District Judge, Allahabad and Ors. (supra) took the view that the words used in Section 3(1) of U.P. Civil Laws (Reforms and Amendment) Act that "any proceedings instituted or commenced in any Court prior to the commencement of this Act shall notwithstanding any amendment herein made, continue to be heard and decided by such Court, would not permit the transfer to the District Courts." The Apex Court observed that in the face of Section 3(1) of the Bengal, Agra and Assam Civil Courts Act, it is impossible to hold that the District Courts were competent to hear appeals of the valuation of Rs. 10,000.00 or less in suits decided before the Act came into force, and appeals from which were pending be fore the High Court. Thus High Court and the High Court alone would be competent to hear and decide the appeals pending before it.
(13) From a reading of the apex judgment, it would be seen that it was on account of the bar contained in Section 3(1) of the Bengal, Agra and Assam Civil Courts Act, which required the pending appeals to be heard by the High Court, the Court held that the transfer under Section 24, Civil Procedure Code not to be sustainable. It was on account of this bar that the Apex Court over-ruled the decision of the High Court to transfer. This becomes clear from the following passage of the judgment of the Apex Court." Section 24 postulates that the Court to which the suit or appeal or other proceeding is transferred should be competent to try or dispose of the same. On the date, the appeal in question was preferred in the High Court, the District Courts were not competent to hear such a case. The competency of those Courts to hear such cases arises by virtue of the amendment to Section 21 of the Civil Courts Act, we are here not concerned with the question whether in the absence of a saving clause, like the one introduced by Section 3(1), the High Court would have been right in taking recourse to Section 24 of the Code of Civil Procedure. But in the face of Section 3(1) of the Act, it is impossible to hold that the District Courts were competent to hear appeals of the valuation often thousand rupees or less in suits decided before the Act came into force, and appeals from which were pending before the High Court."
(14) As noted above, the judgment of the Allahabad High Court was set aside only on the question of interpretation of Section 3(1) of the Bengal, Agra and Assam Civil Courts Act. The Court did not decide the question whether the transfer under Section 24 would have been legal and valid in the absence of provision like Section 3(1) of the Bengal, Agra and Assam Civil Courts Act.
(15) Reference may also be made to a subsequent decision in Beliari Lai find Another v. Keshri Nandan . The Full Bench of the Allahabad High Court considered the provision of U.P. Civil Laws Amendment Act (35 of 1968) and particular Sections 21(1 )(a) and (I-A), as inserted by U.P. Civil Laws Amendment Act, by which the pecuniary jurisdiction of the District Courts was raised to Rs. 20,000.00. The Legislature intended to give retrospective effect to Section 21 of Civil Courts Act. The High Court could, therefore, transfer to District Court an appeal filed even before commencement of Act 35 of 1968. The Court further noticed that unlike in Lakshmi Narain's case (Supra) there was no corresponding saving clause in the latest President's Act and, therefore, Lakshmi Narain's case (Supra) would not be of any assistance in interpretation of Section 3 of the President's Act, by which the limit of jurisdiction of District Judges had been raised to Rs.20,000.00. The Allahabad High Court further observed as under: "IT is true that litigants have got vested right of appeal the moment a suit is instituted. But it is open to the appropriate Legislature to take away such vested right. On examining the language of Clause (a) 61 Sub-section (1) of Section 21, Civil Courts Act and Sub-section (1-A) of Section 21, Civil Courts Act (as inserted by the President's Act), it becomes clear that the Legislature was anxious to give retrospective effect to amended Section 21 of the Civil Courts Act. In other words, the amendment will be effective even as regards a suit instituted before 2.12.1968."
In Antulay's case also, the Court was concerned with Section 7(1) of the Criminal Law Amendment Act, 1952 in terms of which notwithstanding anything contained in the Code of Criminal Procedure or any other law, the offences under Section 6(1) were triable by special Judges only. By express term it took away the right to transfer case contained in the Court to another Court which is not a special Court. This was notwithstanding anything contained in Section 460 or 467 of the Cr.P.C. The order of the Apex Court transferring the case from the Special Judge to the High Court was, therefore, found to be unauthorized by law namely by Section 7(1). In both these cases as discussed above, there was a bar under the statute to the transfers. In the case before us, there is no such statutory bar or prohibition to the transfer from the Court of the Civil Judge to the Court of the District Judge.
(16) The transfer from the Court of the Civil Judge to the Court of the District Judge of the suit for ejectment would sub serve the ends of justice, the parties arc the same, evidence on most of the issues is common. There is also no embargo or impediment to the transfer. As already discussed in paras 8 and 9, Section 15, Cpc cannot come in the way of transferring a suit to a superior Court whose pecuniary jurisdiction is higher. Revision petition has no merit and is, accordingly, dismissed.