Delhi High Court
D.P. Bhalla vs Cement Corporation Of India Ltd. on 20 March, 1995
Equivalent citations: 1995IAD(DELHI)1425, 58(1995)DLT188
Author: R.C. Lahoti
Bench: R.C. Lahoti
JUDGMENT R.C. Lahoti, J.
1. This suit for recovery of money and a decree of declaration, valued at Rs, 1,09,218.50 for the purpose of Court fee and jurisdiction was filed in Delhi High Court (Original Side) on 20.12.1985 in accordance with the pecuniary jurisdiction conferred on this Court by Section 5(2) of the Delhi High Court Act, 1966.
2. Section 5(2) of the Delhi High Court Act, 1966, conferred ordinary original civil jurisdiction on the High Court of Delhi in every suit the value of which exceeds Rs 1 lakh. The Delhi High Court (Amendment) Act, 1991 which came into force on 9-11-92 substituted the words Rs. 5 lakhs in place of Rs. 1 lakhs in Section 5(2) of Delhi High Court Act, 1966 and thereby raised the minimum value of pecuniary jurisdiction of Delhi High Court ( Original Side). Section 4 of the Amendment Act which made provision for the transfer of pending suits and proceedings from the High Court to Subordinate Courts conferred power on the Chief Justice in the following terms.
"4. The Chief Justice of the High Court of Delhi may transfer any suit or other proceedings which is or are pending in the High Court immediately before the commencement of this Act and in which no witnesses have been examined before such commencement to such Subordinate Court in the Union Territory of Delhi as would have jurisdiction to entertain such suit or proceedings had such suit or proceedings been instituted or filed for the first time after such commencement.
3. In exercise of power conferred by Section 4 above said Hon'ble the Chief Justice has made the following order on 18.12.1992 :
"In exercise of powers conferred by Section 4 of the Delhi High Court (Amendment) Act, 1991, hereinafter referred to as the Act, I hereby order that all pending suits in the Delhi High Court on the original side up to the value of Rs. 5 lakhs with the exception of :--
(i) Execution Applications; (ii) Arbitration cases; (iii) Cases in which issues have been framed;
(iv) Cases in which any interlocutory application is either part-heard, or in case arguments till pronouncement of judgment in the said I.A. or the matter is released from being part-heard; and
(v) Cases in which ex-parte evidence by way of affidavits has been ordered to be filed;
be transferred to the District/Subordinate Courts in pursuance of the provision of the Act which came into force with effect from 9,11.1992 vide Notification No. S.O.825(E) dated 9th November, 1992 issued by the Govt. of India, Ministry of Law, Justice and Company Affairs, published in Gazette of India Extraordinary, Part II, Section 3 Sub-section (ii).
The transfer of cases to the District/Subordinate Courts should commence from 4th of January, 1993.
4. A perusal of the order of the Chief Justice clearly suggests that execution applications being continuation of the original suit proceedings were intended to be retained in the High Court which had passed the decree. Arbitration cases were treated as an exception to the rule of transfer. Cases in which issues have been framed were excepted from the rule of transfer because the cases were ripe for trial. The cases in which IAs were heard or part-heard were intended to be transferred away from the High Court after the pronouncement of the order. Cases in which arguments were part heard on IAs were also to go away if released from part heard. The cases in which ex parte evidence by way of affidavit has been ordered to be filed were enjoined to be retained in the High Court.
5. Clause (iii) of the Order of the Hon'ble the Chief Justice has to be given an object oriented interpretation. Cases in which issues have been framed means the cases which are ripe for trial on merits. If only a preliminary issue has been framed, and not all the issues arising for decision in the suit, it cannot be retained in the High Court for it cannot be deemed that it was ripe and ready for trial. So also there may be cases where in spite of issues having been framed there may be a development of events which may render the issues previously framed redundant, relegating the suit back to the stage prior to the framing of issues. One or two illustrations would suffice. There may be more defendants than one--one having filed written statement and the other having proceeded ex parte. Issues are framed. Thereafter ex parte proceedings are set aside and other defendant files written statement requiring the issues to be framed afresh rendering the earlier framed issues redundant which were framed only on the pleadings of plaintiff and one of the defendants. Then there may be cases where the Court may direct new parties to be joined or permit drastic amendments in the pleadings issues may be required to be recast or framed afresh rendering redundant the issues framed earlier. All such cases cease to be ripe for trial on merits and hence would be such as would not fall in the category of 'cases in which issues have been framed'.
6. In the case at hand a number of issues both of facts and law arise from the pleadings of the parties but all issues were not framed. On 20.8.87, Court had framed only a preliminary issue -- "Whether the suit is within time ? Arguments came to be heard on 1.12.1994. After hearing the Counsel the Court formed an opinion that the preliminary issue was a mixed question of law and fact which could be decided only after recording evidence. Now the issues are to be framed.
7. The case cannot be held to be one in which issues have been framed. It is not covered by one of the excepted categories. It must be transferred to a Competent Court below.
8. The learned Counsel for the plaintiff submitted that the word 'issues' would include an issue also and as such suits in which even a single issue has been framed would be covered by exception and would not be liable to be transferred. I do not agree. Keeping in view the context in which the word 'issues' has been used in the order of Hon'ble the Chief Justice and the underlying object behind carving out exceptions, I am of the opinion that the cases in which preliminary issue(s) only have been framed are not covered by the exception. Clause (iii) of the order dated 18.12.1992 of the Hon'ble Chief Justice covers only such cases where all the issues have been framed so as to set down the case for trial.
9. Suit is directed to be transferred to the District Judge, Delhi, who may try the suit himself or make it over for trial to a Court subordinate to him and competent to try the suit.
Suit No. 129/86Heard on the question of jurisdiction. Order reserved. The suit is directed to be transferred to the District Judge Delhi who may try the suit himself or make it over to a Court competent to try the same. Parties through their respective Counsel are directed to appear before the District Judge Delhi on