Orissa High Court
Dinabandhu Patro And Ors. vs State Bank Of India And Ors. on 22 January, 2003
Equivalent citations: AIR2003ORI129, AIR 2003 ORISSA 129
Author: B.P. Das
Bench: B.P. Das
ORDER
B.P. Das
1. This application has been filed by the petitioners under Section 115 of the Code of Civil Procedure ('CPC' in short) assailing the order passed by the District Judge Ganjam-Gajapati. Berhampur in M.J.C. No. 30 of 2002, disposing of an application filed under Section 24 of the C.P.C. by the defendants, the present petitioners, with a prayer for transfer of T.M.S. No. 68 of 1998, pending before the Civil Judge (Senior Division), Aska to the Court of the Civil Judge (Senior Division), Berhampur.
2. The State Bank of India, i.e.. opposite party No. 1 as plaintiff has filed the above suit for recovery of the loan amount from the present petitioners as well as opposite parties 2 and 3 jointly and severally. The application under Section 24, CPC was rejected by the District Judge with the observation that mere adjournment application and posting the suit for peremptory hearing does not come within the ambit of Section 24, C.P.C. As it appears from the impugned order, the suit was posted to 10-5-2002. The present petitioners being defendants applied for time on the ground of pre-occupation of their lawyer at Berhampur. The same was allowed and the case was posted for hearing peremptorily to 10-5-2002 for which an application was moved for transfer of the suit. Now a stand is taken in this present proceeding that the defendants reside at Berhampur i.e. outside the jurisdiction of Aska Court and the plaintiff-Bank is also situated at Berhampur, and all the formalities and transactions of the loan took place at Berhampur. According to the learned counsel for the petitioners the suit has been filed by the Bank in the Court of Civil Judge (Senior Division), Aska solely for the reason that the mortgaged property is situated within the territorial jurisdiction of the Aska Court. According to him, continuance of the suit in Aska Court is not in the interest and convenience of the parties, particularly of the petitioners. It is further pleaded that all the accounts of the petitioners are al Berhampur and continuance of the suit only due to the reason of location of property at Aska, which is 40 kilometers away from the place where the petitioners reside, will cause undue hardship to them. Accordingly, a prayer is made to set aside the order passed by the District Judge, Ganjam-Gajapati, Berhampur and for transfer of the suit from Aska Court to Berhampur Court.
3. In order to fortify his argument learned counsel for the petitioners refers to the decision of this Court in the case of Mulraj Doshi v. Gangadhar Singhania, reported in AIR 1982 Orissa 191 and submits that the competent Court to try the suit is Civil Judge Senior Division), Berhampur and not the Civil Judge (Senior Division). Aska, the reason being that the plaintiff Bank is situated at Berhampur and all the transactions of the loan took place at Berhampur. In the said decision it was held that the expression "competent to try" in section 24 of the Civil Procedure Code refers to pecuniary jurisdiction and not territorial jurisdiction. We further refer to a decision of the Apex Court in the case of Dr. Subramaniam Swamy v. Ramakrishna Hegde reported in AIR 1990 SC 113 wherein it was held that-
"The cardinal principle for the exercise of power under section 25 is that the ends of justice demand the transfer of the suit, appeal or other proceeding. If the ends of justice so demand, the case may be transferred under this provision notwithstanding the right of dominus litis to choose the forum and considerations of plaintiffs convenience, etc., cannot eclipse the requirement of justice, Justice must be done at all costs, if necessary by the transfer of the case from one Court to another."
4. So, the sum and substance of the argument of the learned counsel for the petitioners is that it is in the interest of justice as it would be convenient for the defendants to conduct their cases effectively at Berhampur and as the plaintiff Bank is also situated at Berhampur, the ends of justice will be served best if the case is transferred to Berhampur from Aska even if the mortgaged property is situated at Aska.
5. Mr. M.M. Das, learned counsel for opposite party submits that the grounds taken before this Court was not initially in the application filed under Section 24 of the Code of Civil Procedure and refers to a decision of this Court in the case of Hadibandu Mallik v. Chandra Sekhar Behera, reported in AIR 1973, Orissa 141 wherein it was held that-
"When a mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act of the mortgagor his suit for mortgage money is in the nature of a suit for wrong done to immovable property and must be filed in the Court within the local limits of whose jurisdiction the property is situated."
This decision has hardly any application to the present facts and circumstances of the case because the mortgage in this case is simply usufructuary mortgage and so long as the mortgagee remains in possession, he has no right to sue for the mortgage money. There is no stipulation that, the mortgagors personally bound themselves to pay the mortgage debt. Another decision of the Apex Court referred by the learned counsel for the opposite parties is in (1995) 1 JT (SC) 361 : (AIR 1995 SC 711), Central Bank of India v. Shivam Udyog wherein dealing with a case of similar nature it was held that-
"The suit being for enforcement of the security, it could be filed only where the property is situated."
6. In this regard, I may turn to Section 16 of the Civil Procedure Code-
"16. Suits to be instituted where subject-matter situate -- Subject to the pecuniary or other limitations prescribed by any law suits.-
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate ;
Provided that a suit to obtain reliefs respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain."
So the principle is the Court must have the pecuniary as well as territorial jurisdiction of the property situate.
7. A bare reading of the expression "competent to try or dispose of the same" appearing in Section 24(1)(b)(ii) of the Code makes it clear that the High Court or the District Court having power under Section 24 of the CPC to withdraw any suit, appeal or other proceedings in any Court subordinate to it and transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same.
8. As decided in the case of Syndicate Bank v. K. Gangadhar, reported in AIR 1992 Kant 163 the High Court of Karnataka held as follows :--
"40. xxx That the intention of the Legislature in incorporating the words "and competent to try or dispose of the same" is that the Court to which the suit, appeal or other proceeding could be transferred under Section 24(1)(b)(ii) of the Code must be competent to try or dispose of the case, in the sense that in addition to pecuniary jurisdiction, it should have territorial jurisdiction is amply made clear by omission of the words "competent to try the same in respect of its nature and amount or value of its subject-matter" that appeared in Section 25(Act 14 of 1882) and insertion of the words "and competent to try or dispose of the same." If the intention of the Legislature was that the transfer can be made to a subordinate Court having pecuniary jurisdiction to try the suit, the Legislature would have retained the words that appeared in Section 25 (Act 14 of 1882) without inserting the words "and competent to try or dispose of the same," Non-retention of the words coupled with insertion of new words, adverted to earlier, in Section 24 would prima facie suggest that the competence of the Court now required has to be both pecuniary and territorial jurisdiction. That would be the meaning of the expression" and competent to try and dispose of the same" appearing in Section 24(1)(b)(ii) of the Code if the literal construction is to be placed."
9. In the case at hand, it appears that the suit has been instituted in the Aska Court which is having both pecuniary jurisdiction as well as the territorial jurisdiction and there is nothing to indicate either in the pleading or in the petition as to how the interest of the defendants would be served best in transferring the same to Berhampur Court. The Aska Court having pecuniary and territorial jurisdiction to try the suit, I do not find any justification to set aside the impugned order passed by the learned District Judge, Ganjam-Gajapatt, Berhampur.
10. The Civil Revision application is accordingly dismissed.