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Jammu & Kashmir High Court - Srinagar Bench

Hindustan Construction Co.Ltd vs Government Of J&K; on 7 November, 2017

Author: Sanjay Kumar Gupta

Bench: Sanjay Kumar Gupta

       HIGH COURT OF JAMMU AND KASHMIR
                            AT SRINAGAR



CTA No.24/2017
                                                            Date of Order: 07.11. 2017

Hindustan Construction Co.Ltd.   Vs.         Government of J&K
Coram:
       Hon'ble Mr Justice Sanjay Kumar Gupta, Judge
Appearance:
For Petitioner (s):   Mr.Tahir Majid Shamsi, ASGI
For respondent(s):    Mr.Azharul Amin, Advocate

i) Whether approved for reporting in Press/Media: Yes/No

ii) Whether approved for reporting in Digest/Journal: Yes/No _______________________________________________________________________________

1. This Civil Transfer Application has been filed by the petitioner with the prayer that the petition filed by the respondent before the Principal District and Sessions Judge, Shopian bearing No.S-13/16 titled Government of J&K through Chief Engineer, Mughal Road Project, J&K Vs. Hindustan Construction Company Ltd. &Ors may be transferred to the Court of Principal District Judge, Srinagar on the following grounds:-

1. That this Court has directed vide order dated 23.03.2017 that the trial court shall decide the matter within 3 months from the date of receipt of a certified copy, but till date nothing substantial has been done and the unpredictable situation at Shopian is likely to delay the proceedings further.

2. That the Advocates for both the parties are from Srinagar and due to frequent shutdowns, strikes, unrest, security operations etc in the Shopian District, it is difficult for counsel for both the parties to travel to Shopianfrom Srinagar. The situation in Shopian District has been unpredictable for some time and a risk is involved for the Advocates in visiting Shopian which is likely to delay the proceedings further.

3. That the Principal District Judge, Shopian has recently taken charge from the Pr. District Judge who has passed the order dated 02.04.2016, therefore, the matter needs to be heard afresh by the newly appointed Principal District Judge and transferring the matter to the Court of Pr. District Judge, Srinagar at this stage will not delay the proceedings.

4. That transfer of the above said file from the Court of Pr.

District Judge Shopian to the Court of Pr. District Judge, Srinagar shall be convenient to the petitioner as well as to the respondent to ensure effective and proper assistance to the Court for expeditious and effective disposal of the matter.

5. That the Court of Pr. District Judge, Srinagar is having the requisite jurisdiction.

2. Respondent has filed objections and stated that this Court has no jurisdiction to transfer the matter.

3. Heard learned counsel for the petitioner and considered the matter.

4. Section 24 of CPC reads as under:-

24. General power of transfer and withdrawal.- (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage-

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or

(b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it; and

(i) try to dispose of the same: or (ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the court which is thereafter to try or dispose of such Suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. -

(3) For the purposes of this section,--

(a) courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order.

(4) The court trying any suit transferred or withdrawn under this section from a court of small causes shall, for the purposes of such suit, be deemed to be a court of small causes.

(5) A suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it.

5. So in terms of Section 24 of C.P.C, High Court has power to withdraw any case from subordinate courts and transfer it to any other court of competent jurisdiction for convenience of parties, on apprehension of bias, to avoid conflicting decision and for the interest of justice.

6. In present case petitioner has taken grounds that this Court has directed vide order dated 23.03.2017 that the trial court shall decide the matter within 3 months from the date of receipt of a certified copy, but till date nothing substantial has been done and the unpredictable situation at Shopian is likely to delay the proceedings further; that the Advocates for both the parties are from Srinagar and due to frequent shutdowns, strikes, unrest, security operations etc in the Shopian District, it is difficult for counsel for both the parties to travel to Shopian from Srinagar; that situation in Shopian District has been unpredictable for some time and a risk is involved for the Advocates in visiting Shopian which CTA No.24/2017 Page 3 of 4 is likely to delay the proceedings further; that shall be convenient to the petitioner as well as to the respondent to ensure effective and proper assistance to the Court for expeditious and effective disposal of the matter. It is fact that situation at District Shopian is hostile for both the parties and both parties have offices at Srinagar also. So both parties can prosecute the case diligently.

7. In view of above no prejudice shall be caused to any parties to litigation. Hence petition filed by the respondent before the Principal District and Sessions Judge, Shopian bearing No.S-13/16 titled Government of J&K through Chief Engineer, Mughal Road Project, J&K Vs. Hindustan Construction Company Ltd. & Ors is withdrawn from Principal District and Sessions Judge, Shopian and is transferred to the Court of Principal District Judge, Srinagar, who may try it himself or may transfer the same to another court of competent jurisdiction. This petition is disposed of. Copy of order be sent to both the courts.

Srinagar                                             (Sanjay Kumar Gupta)
07.11.2017                                                                Judge




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