Allahabad High Court
M/S Kandarp Construction India ... vs Brijesh Pathak And Ors. on 22 September, 2016
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 8 AFR Reserved Case :- CIVIL REVISION No. - 89 of 2015 Revisionist :- M/S Kandarp Construction India Pvt.Ltd.Throu.Dir. Opposite Party :- Brijesh Pathak And Ors. Counsel for Revisionist :- Brijesh Kumar Saxena, Ritesh Kumar Srivastava Counsel for Opposite Party :- Abhinav N. Trivedi Hon'ble Attau Rahman Masoodi,J.
This revision filed under Section 115 of Code of Civil Procedure is directed against the judgement/order dated 28.5.2015 passed in Regular Suit No. 2887 of 2014 whereby preliminary objection i.e. lack of territorial jurisdiction of the court below raised by the revisionist/defendant, giving rise to a preliminary issue, has been decided against him and the suit has been held to be rightly filed before the court of Civil Judge, Senior Division, Mohanlalganj, Lucknow instead of returning the plaint for being filed before the court of Civil Judge, Senior Division, Malihabad, Lucknow, within whose territorial jurisdiction the immovable property is situated.
The impugned order passed by the court below gives rise to the following questions of law:
(1) Whether a preliminary issue relating to the territorial jurisdiction of a court can be framed on the basis of an objection raised by the defendant before filing a written statement and if yes, as to what would be the manner of deciding such an objection;
(2) Whether the relief sought in the suit at hand essentially relates to a dispute in relation to immovable property and consequently the objection of territorial jurisdiction raised would be maintainable;
(3) In a situation where relief sought by the plaintiff is partly or wholly not triable before the court where the suit is instituted, whether such a proceeding can be transferred by virtue of the powers conferred on this Court under Section 24 (5) of CPC to the court of competent jurisdiction instead of returning the plaint in terms of Order VII Rule 10A.
Background Briefly stated, facts of the case are that a suit for specific performance coupled with a relief of perpetual injunction was instituted before the court of Civil Judge, Senior Division, Mohanlalganj and at the time of filing of the suit, the Munsarim, in terms of Rule 35 of General Rules (Civil), endorsed his report by making a specific mention that the immovable property described in the plaint was situated beyond the territorial jurisdiction of Civil Judge, Senior Division, Mohanlalganj but having regard to the cause of action set out in paragraph 34 of the plaint which recited the execution of sale agreement before the Sub-Registrar, Lucknow the territorial jurisdiction of Civil Judge, Senior Division, Mohanlalganj on that premise was reported as maintainable. At the time of admission of the suit, the plaintiff appears to have contested the report submitted by the Munsarim on the basis of factum of registration of sale agreement. The court recording, prima facie, satisfaction in the order dated 23.12.2014 proceeded to invite written statement/objections from the defendants, however, the question as to the territorial jurisdiction was left open to be dealt with after the written statement/objections were filed.
After dealing with the objection reported by the Munsarim at the time of admission of the suit in the manner stated above, the court passed an order on 23.12.2014 separately on the application filed under Order XXXIX Rule 1 and 2, granting ex-parte temporary injunction on the same date and posted the suit for disposal of objections on temporary injunction on 2.1.2015.
It is an admitted position of fact that the immovable property described in the plaint is beyond the territorial jurisdiction of Civil Judge, Senior Division, Mohanlalganj and none of the defendants as described in the plaint are residents of a place that would confer territorial jurisdiction of the cause on 'Mohanlalganj court' in terms of Section 16 (d) CPC or the proviso appended thereto, on any ground whatsoever. The suit filed was nevertheless registered subject to objections as is evident from the order dated 23.12.2014 which was passed separately simultaneous to the order granting ex-parte interim injunction.
In the context of the order passed by the court below on 23.12.2014 registering the suit, specific objections were filed against the maintainability of suit on the ground that not only that the suit for specific performance was filed in relation to land situated beyond the territorial jurisdiction of the court but it was also pleaded that the suit for perpetual injunction in any view of the matter would not be cognizable before the court concerned, hence prayer to reject the plaint or alternatively the plaint be returned to the plaintiff for being presented/filed before the competent court i.e. the court of Civil Judge, Senior Division, Malihabad, Lucknow was made. The objections were supported with an affidavit.
The objections so filed by the revisionist-defendant were strongly contested by the opposite party/plaintiff taking recourse to file a reply on affidavit, obviously for the reason to defend the ex-parte injunction order already granted in his favour and partly to avoid consequential complications.
The objection filed by the revisionist-defendant as well as the stand of the plaintiff being strongly contested, came to be considered and decided by the impugned order passed on 28.5.2015 that has given rise to the instant revision.
Sri Brijesh Kumar Saxena, learned counsel for the revisionist while assailing the findings and the proposition of law applied by the court below, has argued that learned Civil Judge on the question of territorial jurisdiction, has completely misconstrued the provisions of CPC in relation to cause of action and in particular, Section 16 (d) as well as the proviso which contemplate the requisite conditions within which a suit in relation to immovable property may be instituted before a court of civil jurisdiction. It is argued that once a relief sought in the plaint is cognizable under Section 16 (d) or the proviso appended thereto or Sections 17 or 18 CPC, there is no scope for such a case being governed under Section 20 (c) of the CPC.
Learned counsel for the revisionist has further argued that the second prayer made in the plaint specifically for a perpetual injunction which is an independent relief that can be read only within the scope of Section 38 of the Specific Relief Act in relation to the immovable property described in the plaint, therefore, once the relief sought in the plaint is in relation to the immovable property, the provision of Section 16 (d) or proviso appended thereto would apply leaving no scope for applicability of Section 20 (c), as such, the findings recorded by the court below suffer from a manifest error of law.
The parties have cited decisions on the legal issues as to how the territorial jurisdiction is to be construed in respect of a relief for specific performance and otherwise.
Learned counsel for the revisionist has cited following decisions:
1). Harshad Chiman Lal Modi v. D.L.F. Universal Ltd. and another, AIR 2005 SC 4446,
2). Hanamanthappa v. Chandrashekharappa, (1997) 9 SCC 688;
3). Madhusudan Das Agarwal and others v. Banaras Hindu University and others; [Writ Petition No. 2793 (MS) of 2000] (Allahabad High Court, Lucknow Bench) decided on 22.7.2015;
4). Vogel Media International v. Jasu Shah and others, 115 (2004) DLT 679;
5). K.P. Ranga Rao v. K.V. Venkatesham and others, (2015) 13 SCC 14;
6). Lallu alias Chandrika Prasad and others v. Lakshmi Narain and others, 2006 (1) AWC 428 (LB).
The findings recorded by the court below have vehemently been supported by Sri Abhinav Trivedi learned counsel for the opposite party/plaintiff on the basis of various judgements cited before this Court.
Learned counsel for the respondent has relied upon the following case laws:
1). Abdul Gafur and another v. State of Uttarakhand and others, (2008) 10 SCC 97;
2). Foreshore Co-operative Housing Society Ltd. v. Praveen D. Desai (dead) through LRs and others, [2015 (33) LCD 1812];
3). Adcon Electronics Pvt. Ltd. v. Daulat and another; (2001) 7 SCC 698;
4). Excel Dealcomm Private Limited v. Asset Reconstruction Company (India) Limited and others, (2015) 8 SCC 219;
5). Gunwantbhai Mulchand Shah and others v. Anton Elis Farel and other, (2006) 3 SCC 634.
Statute Before delving into the legal issues framed above, it is apt to glance through the statutory provisions which relate to the territorial jurisdiction of civil courts leading to the development of law. Insofar as the proceedings before the civil courts are concerned, the place of suing as per the provisions contained in CPC, is regulated under Part I Section 15 to 20. By virtue of Section 120 CPC, Section 16, 17 and 20 of Code of Civil Procedure are not applicable to the High Courts in the exercise of its original civil jurisdiction. The High Courts of original civil jurisdiction for the purposes of territorial jurisdiction are governed under Letters Patent (Madras, Bombay and Calcutta) whereunder clause-12 of the Letters Patent defines the original jurisdiction as to suits viz. place of suing etc. The provisions contained in the Code of Civil Procedure as compared to clause-12 of the Letters Patent stand at variance and the distinction in construing the two streams of law, while dealing with an issue in relation to the place of suing is necessary to be kept in mind for more than one reason. Firstly the language used in the two sets of provisions stands at variance and secondly Section 120 CPC clearly spells out that Section 16, 17 and 20 CPC would not apply to the High Courts exercising original civil jurisdiction.
On the aspect of preliminary issue, Section 9A in the State of Maharashtra mandatorily lays down for the civil courts to go into the preliminary issue of jurisdiction before the grant of interim relief once the objection is raised, whereas, it is discretionary in terms of Order XIV Rule 1 and 2 and the position may differ from one case to another.
The case at hand is a one governed under the provisions of CPC, therefore, decisions of the apex court rendered within the scope of clause-12 of the Letters Patent would necessarily require to be analyzed bearing in mind the distinguishing feature of the statutory law applicable in the respective States as well.
Discussion/Findings Now coming to the first question as to how and on what material a preliminary issue as to the territorial jurisdiction is to be formulated, it is essential to have a look at the relevant provisions of CPC. Section 26 read with Order IV Code of Civil Procedure contemplate institution of suits by presentation of a plaint or in such other manner as may be prescribed. The situation before this Court is that of presentation of a plaint. Facts stated in the plaint have to be proved on the basis of affidavit. Chapter VII Rule 1 provides for particulars to be contained in plaint which for the purpose of issue at hand, include the name of the court in which the suit is brought; name, description and residence of the defendants; facts constituting the cause; facts showing that the court has jurisdiction and the relief claimed etc. The description of particulars set out in the plaint are subjected to scrutiny of the Munsarim at the first place by virtue of the General Rules (Civil) framed under Article 227 of the Constitution of India read with Section 122 of the Code of Civil Procedure. In this regard Rule 35 of the General Rules (Civil) being relevant, is extracted below:
"35. Munsarim's duty in respect of plaints.- A Munsarim of a civil court appointed to receive plaints shall examine each plaint presented to him, and shall report thereon whether the provisions of the Code and the Court-fees Act, have been observed whether the claim is within the jurisdiction of the Court, constitutes a cause of action, and has been presented within the period prescribed for the institution of such a suit, and whether the plaint is otherwise in proper form including that in a suit whether a notice under Section 80, C.P.C., necessary, such a notice has been given.
The Munsarim shall see that the actual date of the presentation of the plaint is entered upon the impressed stamp and adhesive label, if any, below the date of purchase endorsed on them.
On the back of all plaints the Munsarim shall note-
(a) date of presentation of the plaint,
(b) name of presenter,
(c) classification of suit, and
(d) court-fee paid."
The requirement of law clearly postulates a report on the aspect of jurisdiction and it is rather the Munsarim of the court concerned who would report on the question of jurisdiction, being it a matter of his duty which in the present case seems to have been discharged attentively. A plaint once filed cannot be returned for being presented before the proper court as per the rules of procedure (civil) except in accordance with the power exercisable under CPC. A suit duly filed is admitted and procedure accordingly follows.
In the instant case, the suit filed was simply registered by order dated 23.12.2014, however, objections as to the territorial jurisdiction were left open to be raised by the defendants and summons were accordingly issued. The Munsarim in his report dated 18.12.2014 has candidly reported the issue of territorial jurisdiction which was tentatively dealt with in the order dated 23.12.2014 subject to the objections that were to be raised by the revisionist/defendant and others.
From the above mentioned order, it is clear that the court below while issuing the summons has clearly invited objections on the issue of territorial jurisdiction of the court meaning thereby that the report of the Munsarim was not rejected finally but an issue in that light could only be dealt with when an objection on oath was raised by the defendants. The Code of Civil Procedure under Order XIV Rule 3 provides for the materials from which issues may be framed. It is amply clear from the said provision that an issue can be framed on an allegation made on oath by the parties. The objection as to the territorial jurisdiction of a court in terms of Section 21 of the Code of Civil Procedure is bound to be raised at the earliest possible opportunity. Section 21 (1) CPC being relevant is reproduced below:
"21. Objections to jurisdiction.- (1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases were issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the court of first instance at the earliest possible opportunity, and, in all cases where sues are settled, at or before such settlement, and unless there has been a consequent failure justice.
(3) No objection as to the competence of the executing court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection taken in the executing court at the earliest possible opportunity, and unless there has been a consequent failure of justice."
It is worthwhile to note that law lays emphasis on raising the objection of jurisdiction at the earliest possible opportunity and in the present case, the revisionist/defendant at the earliest possible opportunity has raised such an objection apart from what was reported by the Munsarim. Once such an objection is put on record, the plaintiff has an option under Order VII Rule 10A to seek the opinion of the court whether a plaint be returned. In the present case, the opposite party/plaintiff having contested the matter in support of the maintainability of suit before the civil court where it was filed, did not leave any scope for return of the plaint in terms of Order VII Rule 10 and 10A. The report of the Munsarim coupled with the objections of revisionist/defendant on affidavit and reply thereto filed by the opposite party/plaintiff on affidavit, gave rise to an issue which has come to be dealt with by way of a preliminary issue. The question that crops up is as to whether such an issue being an issue of law can at all be dealt with and disposed of by way of 'preliminary issue' before filing the written statement and framing of all the issues.
This court has already noticed that the plaintiff in the present case did not choose to avail the benefit of Order VII Rule 10 and 10A CPC, therefore, in a contested case where the question of jurisdiction has arisen before a court, an issue of law by virtue of Order XIV Rule 1 can be framed even before filing of a written statement provided there are allegations made on oath by the parties. In the instant case, apart from the pleadings set out in the plaint supported by affidavit, objections on oath were filed by the revisionist on affidavit which were duly replied by the opposite party/plaintiff on affidavit constituted adequate material for dealing with the preliminary issue, as such, the contention of the opposite party that such an issue can be tried only after filing written statement, in my humble opinion, is wholly misconceived particularly when Order XIV Rule 2 empowers the court to dispose of a case on preliminary issue.
Having given an anxious thought to the scheme of provisions contained in CPC, I am of the considered opinion that a preliminary issue under Order XIV Rule 1 can be framed even before filing of a written statement, provided there is adequate material stated on oath or denial by the defendant in the like manner and when the emerging issue being a question of law goes to the root of proceedings. This requirement having been met with adequately in the present case does not leave it open to the opposite party/plaintiff to contend that the course adopted by the court below leaves the issue still open, particularly when reply on oath duly filed on his behalf to the objections filed by the revisionist/defendant stand decided by the impugned order. The judgements cited before this Court, as a matter of law, do not lay down that a pure question of law cannot be framed and dealt with as a preliminary issue even before filing a written statement provided there is material on record on the basis of which such an issue can be framed. It is also well settled that a court of law cannot exercise its jurisdiction beyond what is conferred even if the parties consent, therefore, consequent failure of justice in a situation of lack of jurisdiction is but natural. The discretion to decide an issue as a preliminary issue before the settlement of other issues, however, lies within the discretion of the court concerned and such an exercise of jurisdiction as is evident in the present case does not suffer from any error of law. In view of the aforesaid discussion, the first question framed hereinabove is answered in affirmative.
Now coming to the second issue, it would be relevant to note that in relation to the relief for specific performance of an agreement, the apex court judgement reported in (2001) 7 SCC 698 (Adcon Electronics Pvt. Ltd. v. Daulat and another) in paras 16, 17, 18 and 19 has observed as under:
16. In a suit for specific performance of contract for sale of immovable property containing stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in this connection it is necessary to refer to Section 22 of the Specific Relief Act, 1963 which runs :
"22. Power to grant relief for possession, partition, refund of earnest money, etc. --
(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for -
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed :
Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as my be just for including a claim for such relief."
17. It may be seen that sub-section (1) is an enabling provision. A plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no court can grant the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.
18. In the instant case the suit is for specific performance of agreement for sale of the suit property wherein relief of delivery of the suit property has not been specifically claimed as such it cannot be treated as a "suit for land".
19. We cannot also accept the contention of Mr. Chitale that the suit is for acquisition of title to the land and is a "suit for land". In its true sense a suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract. The title to the land as such is not the subject-matter of the suit."
The view expressed by the apex court holds good even now but the case at hand seeks a two-fold relief. The relief of perpetual injunction has specifically been prayed for as an independent relief. The second relief in terms of the impugned order is held to be an incidental relief notwithstanding the fact that the position reflected in the plaint placed on record is just contrary. Looking to the nature of prayer made in the plaint, there is no doubt that such a prayer can only be read within the scope of Section 38 of the Specific Relief Act, 1963, which reads as under:
"Perpetual injunction when granted. --
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property the court may grant a perpetual injunction in the following cases, namely-
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damages caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings."
Once the relief of perpetual injunction was prayed in the suit that cannot be understood except what Section-38 (3) Specific Relief Act provides, it would be difficult to affirm the observation of the court below that such a relief is incidental. An incidental relief is one which flows from the main relief and the position in this regard may vary in each case but the ingredients for grant of an incidental relief must be satisfied. This Court in the case reported in AIR 1973 All. 55 (Om Prakash and another v. Anar Singh and others) has observed in para 8 as under:
"8. Learned counsel for the petitioner urged that the determination of the right or interest in the immovable property in the present case, and generally in the case of all injunctions, is only an incidental matter and not a matter essential for the grant of relief and accordingly Section 16(d) will not be attracted. The contention is not correct. Section 38 of the Specific Relief Act speaks about the grant of perpetual injunctions. Sub-section (3) of Section 38 says that when the defendant invades or threatens to invade the plaintiff's right to or enjoyment of the property the court may grant a perpetual injunction in the circumstances detailed in the section. Thus a court can grant a perpetual injunction only after it determines that the plaintiff has a right to enjoy the property. As it is a matter essential for granting the injunction, the determination of the right of the plaintiff cannot be held to be a matter only incidental and not essential for granting the relief of injunction. And. as such determination is a necessary prerequisite for the grant of the relief of injunction. Section 16 (d) must apply to a suit for a permanent injunction.
On a perusal of the plaint placed on record, the relief for perpetual injunction sought by the opposite party/plaintiff cannot be read otherwise than what lies within the scope of Section 38 (3) of Specific Relief Act, 1963 and such a relief, for its determination, would necessarily involve determination of the right of the plaintiff to enjoy the property, thus the relief is essential and has wrongly been construed to be incidental by the court below. The essential relief sought by the plaintiff relates to the immovable property, hence Section 16 (d) CPC must apply in the case of perpetual injunction as is the case at hand. Now in a situation, where the first relief prayed for specific performance simpliciter though being within the jurisdiction of the court below but sought alongwith the relief of perpetual injunction which relates to the immovable property attracting Section 16 (d) CPC, would the prayer of such a description be maintainable before the court below within the purview of Section 20 (c) CPC. Section 20 (c) CPC being relevant is extracted below:
"20. Other suits to be instituted where defendants reside or cause of action arises .- Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the Suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
It is well settled that Section 20 CPC is a residuary provision and covers those eventualities which do not fall under Sections 15 to 19. The very opening words of Section 20 CPC "subject to the limitation aforesaid" are significant and do not leave any room for doubt that the residuary provision would only apply when the application of other provisions is totally ruled out. In the instant case, application of Section 20 (c) is construed on the basis of registration of the sale agreement in relation whereof a relief simpliciter is prayed for under clause-1 but other relief sought by the opposite party/plaintiff is in the nature of perpetual injunction.
It has already been held hereinabove that the prayer made in the suit for perpetual injunction would relate to the immovable property hence Section 16 (d) CPC would be attracted, therefore, in a situation where any part of the relief is governed under Section 16 (d) CPC, the jurisdiction of the court will have to be determined accordingly. The situation would have been different if the defendants were residents of a place situated within the territorial jurisdiction of Civil Judge (Senior Division), Mohanlalganj. In that event, the proviso appended to Section 16 (d) wold have applied so as to enable the court below to exercise its jurisdiction. Thus, the place of registration of a document would only be relevant when other provisions i.e. Sections 15 to 19 have no application at all. In view of the above discussion, I am of the considered opinion, that even though the relief of specific performance simpliciter may lie within the jurisdiction of court below but the relief as a whole not being within its territorial jurisdiction, the suit cannot proceed as the application of Section 16 (d) CPC is inescapable and the relief of perpetual injunction being a relief in relation to land renders the suit proceedings as non-maintainable.
The third issue in the present situation being significant may also be dealt with in the light of relevant provisions. Order VII Rule 10 CPC before the Amendment Act 104 of 1976 provided for return of plaint at any stage but after the amendment, the Code of Civil Procedure has taken due care of a situation that may emerge as a consequence of an objection of lack of jurisdiction. A plaintiff on such an objection being raised may subscribe to the opinion of the court under Order VII Rule 10A at the earliest or may choose to contest as is the case at hand. Once the plaintiff has chosen to contest a proceeding upto a certain stage and the defendants have also represented their case without any prejudice of opportunity being caused, then in such a situation, the provisions of Section 24 (5) can be fruitfully invoked by the court to transfer the proceedings from one court to the court having territorial jurisdiction. The only difference that it would make is that in the former case, the proceedings would transfer from the very inception but in the later case the proceedings would stand transferred from the stage at which they have reached before the trial court. Reference may also be made to the apex court judgement in the case of Ramesh Chandra Sankla etc. v. Vikram Cement etc. reported in (2008) 14 SCC 58. In paragraph 68 of the said judgement, the apex court observed as under:
"68. The Law Commission also considered the question and did not favour the tendency of deciding some issues as preliminary issues. Dealing with Rule 2 of Order XIV (before the amendment), the Commission stated;
"This rule has led to one difficulty. Where a case can be disposed of on a preliminary point (issue) of law, often the courts do not inquire into the merits, with the result that when, on an appeal against the finding on the preliminary issue the decision of the Court on that issue is reversed, the case has to be remanded to the Court of first instance for trial on the other issues. This causes delay.
It is considered that this delay should be eliminated, by providing that a court must give judgment on all issues, excepting, of course, where the Court finds that it has no jurisdiction or where the suit is barred by any law for the time being in force". (emphasis supplied)"
On this issue, both the parties at this stage, have agreed that they shall have no objection if the suit proceedings are transferred at the stage at which they are pending, therefore, bearing in mind the authority of this Court under Section 24 (5) CPC, the proceedings of R.S. No. 2887/14 pending before the court of Civil Judge (Senior Division), Mohanlalganj are hereby transferred to the court of Civil Judge (Senior Division) Malihabad. The consent of parties shall, however, be without prejudice to their rights on other issues decided by this Court.
Order In the light of discussions and findings recorded above, the impugned judgement/order dated 28.5.2015 is hereby set aside and the revision is allowed. The proceedings of R.S. No. 2887/14 shall stand transferred in terms of the direction issued and the District Judge, Lucknow shall ensure the transfer of record of the suit forthwith. Parties shall be informed of the date fixed in the proceedings. The suit proceedings are expedited and the court below is expected to conclude the proceedings expeditiously.
No order as to cost.
Order Date :- Sept. 22, 2016 Fahim/-
Case :- CIVIL REVISION No. - 89 of 2015 Hon'ble Attau Rahman Masoodi,J.
The revision is allowed vide order of date on separate sheets.
Order Date :- 22.9.2016 Fahim/-