Madras High Court
Sebastian vs R.Prabakaran on 4 March, 2011
Author: T.Mathivanan
Bench: T.Mathivanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/03/2011 Coram THE HONOURABLE MR.JUSTICE T.MATHIVANAN Tr.C.M.P (MD).No.19 of 2011 and M.P (MD) No.1 of 2011 Sebastian .. Petitioner Vs 1.R.Prabakaran 2.K.Elango 3.District Collector, District Collector Office Campus, Dindigul. 4.District Revenue Officer, District Collector's Office Campus, Dindigul. 5.K.P.A.Piyula 6.K.P.A.Santhi 7.Flarence 8.K.P.A.Raja 9.Latchumanan 10.Rama Prabakaran .. Respondents PRAYER Transfer Civil Miscellaneous Petition filed under Section 24 of the Code of Civil Procedure, praying to withdraw the case in A.S.Nos.46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani (Camp Court at Kodaikanal) and transfer to any other Subordinate Judge, in Dindigul District for disposal in accordance with law. !For Petitioner ... Mr.A.Hariharan ^For Respondents ... Mr.C.Vakeeswaran :ORDER
After invoking the proviso to section 24 of the Code of Civil Procedure, 1908, the petitioner has preferred this petition with a prayer to withdraw the appeal in A.S.Nos.46 and 47 of 2009, from the file of the learned Subordinate Judge, Palani (Camp Court at Kodaikanal) and transfer to any other Subordinate Judge, in Dindigul District for disposal in accordance with law.
2.The facts which are leading to file this Transfer Civil Miscellaneous Petition may be summarized as follows:
The respondents 1 and 2 herein had filed a suit in O.S.NO.185 of 1999 against the petitioner herein and seven others, on the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal for the relief of declaration that the suit property is absolutely belonged to the first respondent/first plaintiff and his wife and also for permanent injunction. The petitioner herein had also filed a suit in O.S.No.98 of 2004 against one Piyula and four others for the relief of declaration that the the petitioner is the absolute owner of the suit property and also for permanent injunction against the respondent herein on the file of the learned Subordinate Judge, Palani and later that suit was transferred and re-numbered as O.S.No.98 of 2004, on the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal. Both the suits were tried together and a common judgment was delivered on 06.07.2009, in which, the suit filed by the respondents 1 and 2 herein in O.S.No.185 of 1999 was decreed as prayed for whereas and the suit in O.S.No.98 of 2004 was dismissed.
3.Being aggrieved by the judgment and decree passed in the above said suits, the petitioner had filed two Review Petitions in I.A.Nos.254 and 256 of 2009 under Section 114 and Order 47 Rule 1 of the Code of Civil Procedure before the learned District Munsif-cum-Judicial Magistrate, Kodaikanal to review the common judgment rendered in the above said suits. Both the applications were heard and dismissed on 22.04.2010 on the ground of maintainability and also on the ground of pendency of appeal in A.S.Nos.46 and 47 of 2009 on the file of the learned Subordinate Judge, Palani against the judgment and decree in O.S.Nos.185 of 1999 and 98 of 2004.
4.Thereafter, the petitioner had filed Civil Revision Petitions in C.R.P.Nos.1211 and 1212 of 2010 on the file of this Court on 06.06.2010, impugning the order and decretal order passed in I.A.Nos.46 and 47 of 2009. After hearing both sides, this Court had allowed the revision petitions in C.R.P.Nos.1211 and 1212 of 2010 after setting aside the order passed in I.A.Nos.254 and 256 of 2009, dated 22.04.2010 and remitted the matters back to the file of the learned District Munsif-cum-Judicial Magistrate, Kodaikanal to dispose them by the end of August 2010.
5.Records in O.S.No.185 of 1999 and 98 of 2004 were called for by the learned Trial Judge Viz., learned District Munsif-cum-Judicial Magistrate, Kodaikanal, from the file of the appellate Court for the disposal of I.A.Nos.254 and 256 of 2009 afresh. But the learned Subordinate Judge, Palani did not send the original records. The Trial Judge instead of going through the original records had passed the orders on 31.08.2010, dismissing both the applications in I.A.Nos.254 and 256 of 2009.
6.Aggrieved by the orders passed in I.A.Nos.254 and 256 of 2009, the petitioner had preferred a Civil Revision Petition in C.R.P.Nos.1862 and 1863 of 2010 before this Court. After hearing both sides, this Court had dismissed the revision petitions on 28.09.2010.
7.That on 04.10.2010, the petitioner had filed a transfer petition in transfer O.P.No.101 of 2010, on the file of the learned Principal District Judge, Dindigul to transfer the appeals in A.S.Nos.46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani, who is holding camp-court at Kodaikanal. The learned Principal District Judge, Dindigul after hearing both sides had dismissed the transfer petition in O.P.No.101 of 2010.
8.Under this circumstance, the petitioner has approached this court with this petition seeking the relief of withdrawal of the appeal suits in A.S.Nos.46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani and to transfer the same to any other Subordinate Judge, Dindigul, for disposing the case in accordance with law.
9.Mr.A.Hariharan, learned counsel appearing for the petitioner while advancing his argument has drawn the attention of this Court to Paragraph No.8 of the affidavit filed in support of the petition and submitted that if the appeal suits in A.S.Nos.46 and 47 of 2009 are allowed to continue on the file of the learned Subordinate Judge, Palani, the petitioner would not be able to get a fair justice because from the inception of the appeals, the attitude and the conduct of the learned Subordinate Judge, Palani are in suspicion as he is having a close nexus with the respondents. He has also narrated certain incidents blaming the learned Subordinate Judge, Palani. He has also contended that a petition was filed by the petitioner to frame necessary issues in the appeal suits and it was neither taken on file nor returned. Besides this, certain allegations are also levelled against the learned Subordinate Judge, Palani in paragraph No.8 of the affidavit.
10.On the basis of the allegations levelled against the learned Subordinate Judge, Palani in the affidavit filed in support of this petition, this Court was constrained to call for the remarks from him and in pursuant to the direction of this Court, the learned Subordinate Judge, Palani has also submitted his remarks refuting all the allegations levelled against him as baseless.
11.Before we go into the merits of the petition, it may be relevant to note here that the petitioner herein had already filed a transfer petition in O.P.No.101 of 2010, on the file of the learned Principal District Judge, Dindigul to withdraw the appeals in A.S.Nos.46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani, who is holding in charge of the camp Court at Kodaikanal and transfer to any other Subordinate Court in Dindigul District. That petition was dismissed. After dismissal of that petition, the petitioner has invoked the jurisdiction of this Court and filed this petition for the very same cause of action which was earlier rejected by the learned Principal District Judge, Dindigul.
12.Under this circumstance, a prime question is arisen as to whether this second petition, for the very same relief which was rejected in O.P.No.101 of 2010 by the learned Principal District Judge, Dindigul, is maintainable?
13.Mr.A.Hariharan, learned counsel appearing for the petitioner in support of his contention has placed reliance upon the decision in Munangi Ramakrishna Rao Vs. Dr.Vanakuru Venkata Siva Ramakrishna Prasad and Others reported in 2003 (4) ALT 570 (DB). In this case also a similar question was arisen as to "In view of Section 115 of the Code of Civil Procedure (After Amendment of 1999) can a revision be maintained as against an order passed by District Court under Section 24 of the Code of Civil Procedure".
14.This question has been answered by a Division Bench of Andhra Pradesh High Court in the following manner "as seen from the above, by 1999 Amendment clause (b) of the proviso to Section 115(1) is omitted and clause (a) is added to the main proviso itself. A transfer petition filed before the District Court is a 'proceeding'. Since any order, either allowing or refusing to transfer a suit from one Court to another, finally disposes of the transfer petition, there can be little doubt that such order is amenable to revision both prior and subsequent to 1999 Amendment to C.P.C. Therefore, we hold that revision against an order passed in a petition filed under Section 24 C.P.C either allowing or refusing to transfer a suit or proceeding by the District Court is maintainable".
15.Obviously, "a plain reading of Section 24 of the Code of Civil Procedure expresses that both the High Court and the District Court are having concurrent jurisdiction to transfer proceedings in any Court subordinate to them to another Court either suo motu or on an application by any of the parties to the proceedings".
16.In this connection, the Division Bench of Andhra Pradesh High Court in the above cited decision has also opined that "there is nothing in the said section to suggest that when the District Court is seisin of a similar application, the High Court should not entertain an application for the same purpose".
17.The Division Bench of Andhra Pradesh High Court has also proceed to hold further "it is thus seen that both Patna and Calcutta High Courts have also taken the view that an unsuccessful party before the District Court can move a fresh application for the same purpose in the High Court, which impliedly means that he need not question the order of dismissal by the District Court either under Section 115 C.P.C or under Article 227 of the Constitution. Therefore, we hold that a petition under Section 24 C.P.C is maintainable even without the order of dismissal of such petition by the District Court being questioned either under Section 115 C.P.C or under Article 227 of the Constitution of India".
18.From the above context it appears that the Division Bench of Andhra Pradesh High Court has held dual views saying that:
a)"revision against an order passed in a petition filed under Section 24 of the Code of Civil Procedure either allowing or refusing to transfer a suit or proceeding by the District Court is maintainable.
b) that a petition under Section 24 of the Code of Civil Procedure is maintainable even without the order of dismissal of such petition by the District Court being questioned either Section 115 C.P.C or under Article 227 of the Constitution of India".
19.Mr.A.Hariharan, learned counsel appearing for the appellant has also, in support of his submissions, placed reliance upon another decision in Dr.Subramniam Swamy Vs. Ramakrishna Hedge reported in AIR 1990 SC 113. In this case, the Apex Court has 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. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one Court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular Court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice".
20.Ultimately, the Apex Court has held that "the paramount consideration must be to see that justice accordingly is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff".
21.In the above cited decision, the question of maintainability of the second transfer application under Section 24 C.P.C before the High Court, when an earlier petition was dismissed for the same relief by the District Court has not been arisen. The Apex Court has dealt with the matter with regard to the transfer of the cases as contemplated under Section 25 of the Code of Civil Procedure. Hence, the cardinal principle for transferring the case can be taken as guideline to decide the question of maintainability of the second transfer petition under Section 24 of the Code of Civil Procedure. The ratio laid down in the above said decision cannot be applied in the given case on hand.
22.But the decision in Saroj Bashini Debi Vs. Girija Proshad Bhattacharjee reported in A.I.R 1926 Calcutta 326. This ratio has been laid down. In this case, it is observed that "a preliminary objection is taken to the hearing of this Rule on the ground that the learned District Judge having refused to act under Section 24 of the Code of Civil Procedure this Court, will not in the exercise of its concurrent jurisdiction, deal with the same question. This is urged on general principles, especially in matters criminal, that where two Courts have been given concurrent jurisdiction, the other ought not to exercise the same jurisdiction. This point came up for consideration in the case of Hari Nath Vs. Debendra Nath (1). The learned Judges there held that even though the District Judge refused to exercise the power vested in him by law under Section 24 of the Code of Civil Procedure this Court had jurisdiction to act under that Section. Had we felt to bound to investigate this point we would have tested the correctness of this view, but we think that we over all inferior Courts and our such powers are not limited by any course taken by the District Judge. We, therefore, propose to examine this case on its merits".
23.On a close reading of the above cited decision, it is thus clear that the Division Bench of Calcutta High Court has held that "the rule on the ground that the learned District Judge having refused to act under Section 24 of the Code of Civil Procedure, this Court will not in the exercise of its concurrent jurisdiction deal with the same question" is made absolute.
24.Mr.A.Hariharan, learned counsel appearing for the petitioner has also laid emphasis on an another decision in Puspha Devi Saraf and another Vs. Jai Narain Parasrampuria and others reported in AIR 1992 SC 1133. In this case, "on the transfer petition filed before the District Court, the District Judge had called for a report from the Presiding Officer. In his report, the Presiding Officer had not only denied the imputations made against him but also explains and justifies the orders passed by him".
25.Under this circumstance, the Apex Court has held that "a Presiding Officer of a Court should not be put to such an explanation, barring exceptional circumstances".
26."When a petition for transfer of suit is filed making allegations against the Presiding Officer, the report if and when called for from him, should normally be confined to the allegations made against the impartiality or fairness of the Judge and not with respect to the correctness or otherwise of the orders passed by him".
27.Ultimately, the Apex Court has held that "we, however, feel that the learned Presiding Officer has been unduly affected by the allegations levelled against him, as would be evident from his report. In this view of the matter, we are inclined to think that in the interest of the learned Presiding Officer himself, the suit may be sent to another Court. We, accordingly, request the learned District Judge, Kanpur to transfer the said suit (Suit No.537 of 1984 on the file of VIIth Additional District Judge, Kanpur) to such other Additional District Judge, as he may designate in this behalf".
28.On the other hand, Mr.C.Vakeeswaran, learned counsel appearing for the respondents has vehemently objected to the submissions made on behalf of the petitioner and maintained that all the allegations levelled against the learned Subordinate Judge, Palani are invented only for the purpose of protracting the appeal suits by way of transfer from one Court to another. He has also submitted that there is no necessity for the transfer of this appeal suits from the file of the learned Subordinate Judge, Palani and he has also urged before this Court that the transfer petition might be dismissed.
29.In support of his argument, he has also placed reliance upon the decision of this Court in Manoharan Vs. Enercon (India) Limited Bombay, represented by its General Manager and Others reported in (2007) 1 MLJ 420. In this case, "making allegations against the Presiding Officer of Trial Court Viz., District Munsif, Dharapuram, the petitioner had filed Transfer C.M.P.No.36 of 2006 on the file of the learned Principal District Judge, Erode and the same was dismissed on 03.04.2006. Aggrieved against that order, the petitioner had filed C.R.P.No.586 of 2006. Without going into the allegations against the Judicial Officer, the High Court has ordered transfer of the suit from District Munsif, Dharapuram to District Munsif Court, Erode. Temporary Injunction was also granted in I.A.No.588 of 2006 on 07.07.2006. Aggrieved by the impugned order, the respondent has preferred C.M.A.No.36 of 2006 before the First Additional Subordinate Court, Erode".
30."In the meantime, the petitioner had filed second transfer petition in Transfer O.P.No.136 of 2006 before District Court, Erode making allegations against the Judicial Officer and praying for transfer of C.M.A.No.36 of 2006 to either the District Court or Fast Track Court of Erode. The said petition was dismissed by the learned Principal District Judge, Erode on 10.11.2006".
31.Again, the petitioner had come forward with another transfer original petition before this Court. On hearing both sides, the learned Single Judge of this Court has held that "a party aggrieved by the dismissal of transfer by the District Court cannot file a petition for transfer before the High Court on the same ground, but can file a revision under Article 227 of the Constitution of India. With this observations, that petition was dismissed".
32.On coming to the instant case on hand, the petitioner after making allegations against the learned Subordinate Judge, Palani holding Camp-Court at Kodaikanal had originally filed a transfer petition in Transfer O.P.No.101 of 2010, on the file of the learned Principal District Judge, Dindigul. That petition was dismissed. Again the petitioner has approached this Court with this transfer petition for the second time seeking the very same relief, transfer of the appeal suits in A.S.Nos.46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani to any other Subordinate Judge's Court at Dindigul District.
33.This Court has carefully gone through the reasons assigned for transferring the above said appeal suits from the learned Subordinate Judge, Palani. The petitioner had made allegations against the learned Subordinate Judge, Palani about his impartiality or fairness. It is also alleged that the respondents 1 and 2 are having close nexus with the learned Subordinate Judge and used to get access in his Chamber freely and spoke with him for several hours. Besides this, it is also alleged that the learned Subordinate Judge whenever comes to Kodaikanal to attend the Camp-Court used to come along with the respondents 1 and 2 in their car.
34.As already discussed, a report was called for from the learned Subordinate Judge, Palani pertaining to the allegations levelled against him. In his report, he has also strongly denied the imputations.
35.It must be borne in mind that making allegations as against the Presiding Officer is not a simple one, but it is a very serious one which is having direct impact on the future carrier of the Presiding Officer.
36.Even, in accordance with the submissions made by the learned counsel for the petitioner, if an order of transfer is effected transferring the appeal suits in A.S.No.46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani, definitely, as rightly observed in Manoharan Vs. Enercon (India) Limited Bombay, represented by its General Manager and Others reported in (2007) 1 MLJ 420, it would make indelible stigma on the reputation and integrity of the Presiding Officer.
37.Keeping in view of the above fact and on considering the submissions made on behalf of both sides, this Court is not inclined to allow this petition on the ground that the second transfer petition filed under Section 24 of the Code of Civil Procedure is not maintainable, when an earlier transfer petition under Section 24 of the Code of Civil Procedure was rejected by the learned Principal District Judge, Dindigul District.
Accordingly, the Transfer Original Petition is dismissed. Consequently, connected miscellaneous petition is also closed. There is no order as to costs.
ps To The Subordinate Judge, Palani. (Camp Court at Kodaikanal)