Kerala High Court
Ariamma Sachariah vs Rose Elizabeth Kurian on 26 February, 2004
Equivalent citations: 2004(2)KLT988
Author: A.K. Basheer
Bench: A.K. Basheer
JUDGMENT S. Sankarasubban, J.
1. This C.M.C. had been referred to a Division Bench by a learned Single Judge by order dated 18th December, 2002. The petitioners in the C.M.C. have filed this case for transfer of two suits pending in the Munsiff's Court, Kottayam to the Sub Court, Kottayam to be heard along with another Suit viz., O.S. No. 186 of 2000 of the Sub Court, Kottayam. Before approaching this Court, the petitioners approached the District Court, Kottayam for the same relief. The District Court, Kottayam by Order dated 18th September, 2000 dismissed the petition. It is thereafter that the C.M.C. has been filed under Section 24 of C.P.C.
2. Respondent would submit that since the power under Section 24 has been exercised by filing petition before the District Court, Kottayam, the same power cannot be exercised before this Court. Aggrieved party can challenge the order passed by the District Judge under Section 24 of C.P.C. The learned Single Judge referred the matter to the Division Bench on the ground that there are no pronouncements of this Court. Another ground on which the matter is referred is whether a single petition is enough to transfer two suits or two separate petitions ought to have been filed.
3. We heard learned Counsel for the petitioners and learned Counsel for the respondents.
4. The petitioners here are the plaintiffs in O.S. No. 580 of 1996 on the file of the Munsiff's Court, Kottayam. They filed the suit for perpetual injunction to restrain trespass and also obstruction to the use of item No. 2 pathway by the plaintiffs. A temporary injunction has been ordered. O.S. No. 581 of 1996 is filed by the respondents for a perpetual mandatory injunction to restore the boundaries between A and B Schedule properties, for a perpetual injunction to prevent the defendant from obstructing the plaintiffs in their proposal to close the pathway and for injunction against trespass and waste. An interim temporary injunction has been allowed against trespass on the request of the plaintiffs in that suit.
5. O.S. No. 186 of 2000 is filed before the Sub Court, Kottayam against the respondents and others including the plaint schedule property in O.S. No. 580 of 1996 and O.S. No. 581 of 1996 as item No. 8 for a declaration of title, fixation of boundaries and for partition and other incidental reliefs. According to the petitioners, if the suits pending in the Munsiff's Court are decided, there will be multiplicity of litigation. The learned District Judge rejected the application on the ground that it was filed only to protract the proceedings.
6. As already stated, the contention taken by the respondents in the proceedings is that a petition under Section 24 of C.P.C. is not maintainable in this Court, because same right has been exercised before the District Court. Section 24 of C.P.C. deals with transfer of cases, which says that the District Court or the High Court may seek suo motu transfer of the cases. It has also got the power to transfer cases on the application of the parties. If the application is filed notice has to be issued to the parties and thereafter only order has to be made. The contention raised by the learned Counsel for the petitioners is that since there is no alternate remedy to challenge the order of the District Court, a petition under Section 24 of C.P.C. is maintainable before this Court.
7. Various decisions were cited before us. The Calcutta High Court in many decisions held that there is a practice in that High Court to entertain applications under Section 24 of C.P.C., even if such an application had been filed before the District Court and decided by the District Court. Certain other decisions have taken the view that if the power is exercised by the High Court or the District Court, this power cannot be exercised by filing fresh application. The party aggrieved has to challenge the order in a higher Court.
8. A perusal of the provisions would show that power has been given to the District Court or the High Court to order transfers. Of course, in cases where suits or proceedings lie outside the jurisdiction of the District Court, power under Section 24 of C.P.C. can be used only by the High Court. According to us, an interpretation of Section 24 of C.P.C. will clearly show that a party can approach the District Court or High Court for transfer of cases. That does not mean that a party, who did not get favourable orders by filing petition under Section 24 of C.P.C. before the District Court can approach the High Court for the same relief.
9. The main attack is that even if the order is passed by the District Court under Section 24, the party can be allowed to approach this Court under Section 24 of C.P.C. We are of the view that this contention cannot be accepted. According to us, the party can approach this Court under Article 227 of the Constitution to redress their grievances. If we accept the interpretation given by the learned Counsel for the petitioners that will lead to multiplicity of proceedings and waste of time.
10. In the above view of the matter, we are of the view that once an order is passed in a petition under Section 24 of C.P.C. by the District Court, that order can be challenged and the party cannot file another petition under Section 24 of C.P.C. for the same cause of action before the High Court. Hence, we are of the view that the C.M.C. is not maintainable. So far as the question of filing more than one petition is concerned, according to us, there is no rule compelling a party to file more than one petition before the High Court. In a single petition reliefs can be obtained, but court fee has to be paid taking into account the fact the suits to be transferred.
In the above view of the matter, C.M.C. is dismissed. This does not prevent the petitioners from seeking other remedies.