Delhi High Court
Dharamvir Nanda vs Ranbir Nanda & Another on 26 September, 2008
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Tr.P.10/2008
% Date of decision: 26.09.2008
Dharamvir Nanda ....... Petitioner
Through: Mr. S.K. Gupta, Advocate
Versus
Ranbir Nanda & another ....... Respondents
Through: Mr. B.B. Gupta, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petitioner claims to have instituted a suit for permanent and mandatory injunction (hereinafter called suit-I) against the respondents in the court of the Learned Civil Judge, Delhi. It is stated that the respondents made a statement in the said suit giving undertaking to the court which was accepted by the court of the Learned Civil Judge, Delhi. It is further stated that the respondents have violated the said undertaking/injunction of the court leading to petitioner filing an application u/o.39 rule 2A of CPC. Learned Civil Judge is stated to have found the respondents guilty of violation of the order and after finding so, adjourned the matter for awarding the punishment to the respondents. It is further stated that the respondents preferred an appeal before the Learned Additional District Judge, against the said order of the Learned Civil Judge. The Tr.P.10/2008 Page 1 of 4 Learned Additional District Judge, is stated to have remanded the matter to the Learned Civil Judge for deciding afresh.
2. It appears that besides the proceedings aforesaid, certain other suits/appeals were also pending between the parties. The respondents are stated to have in or about 2004, filed an application u/s. 24 of the CPC before the Learned District Judge, for transfer of the proceedings aforesaid pending before the Learned Civil Judge, to the court of Learned Additional District Judge, where the other suits/proceedings were pending. The Learned District Judge vide order dated 25.4.2005 allowed the said transfer application of the respondents and transferred the proceedings pending before the Learned Civil Judge, to the court of Learned Additional District Judge. The application u/o.39 rule 2A of CPC, which as aforesaid was remanded in appeal to be considered afresh by the Learned Civil Judge, thus also came to be transferred to the court of the Learned Additional District Judge, where the other proceedings between the parties were pending.
3. The petitioner herein has now applied for retransfer of suit-I and the application u/o.39 rule 2A of CPC to the court of Learned Civil Judge. Two grounds are urged for transfer. Firstly, it is stated that the application u/o. 39 rule 2A of CPC is to be tried by the same court whose injunction has been breached/violated; it is stated that the injunction of which breach is complained having been granted by the Learned Civil Judge, the Learned Additional District Judge before whose court the suit-I and the application u/o.39 rule 2 A of CPC have been transferred, would have no jurisdiction to try the same. Tr.P.10/2008 Page 2 of 4 Reliance in this regard is placed on Dr. Bimal Chand Sen Vs. Mrs. Kamla Mathur, 1982, Raj. Law Reporter, 553, to contend that the application u/s. 39 rule 2A of CPC lies before the same Judge who has passed the injunction order. Secondly, it is urged that u/s. 15 of the CPC, a suit is required to be instituted in the competent court of lowest grade having appropriate pecuniary jurisdiction; it is stated that suit-I is valued for the purposes of jurisdiction at Rs.260/-, which falls within the pecuniary jurisdiction of the Learned Civil Judge and if the said suit is allowed to be tried by the Learned Additional District Judge, the forum of appeals arising therefrom would also be affected.
4. I do not find that the plaintiff has made out any ground for transfer. Firstly, the order of the Learned District Judge transferring the suit-I and the application u/o.39 rule 2A of CPC therein from the court of the Learned Civil Judge to the court of Learned Additional District Judge, has attained finality. Certainly in exercise of power u/s. 24 of the CPC, this court is empowered to retransfer the proceedings. However, the question of exercising the jurisdiction to retransfer would arise only on grounds therefor being made out. All the grounds urged now were available to the petitioner at the time of transfer also and no new ground has accrued to the petitioner for annulling the earlier transfer.
5. Secondly, there is no merit in the contention of the petitioner that the powers u/s. 39 Rule 2A CPC, are to be exercised by the same court. Rule 2A itself incorporates that the application has to be made to the court granting the injunction or making the order "or Tr.P.10/2008 Page 3 of 4 any court to which suit or proceedings is transferred". If any authority is required for the said proposition, reference may be made to Ishwar Industries Ltd. Vs. Crocus Chattels Pvt. Ltd., 2006 3AD (Delhi) 12. Thirdly, the ground of the suit being tried in violation of section 15 of the CPC and the forum of appeal being affected is also not available to the petitioner. Law in this regard has been reviewed in Shriram Pistons & Rings Ltd. Vs. Manju Awasthi, 68 1997 DLT 112, where this court has held that in exercise of powers u/s. 24 of the CPC, the suit can be transferred from the court of minimum pecuniary jurisdiction to the court of higher pecuniary jurisdiction, even affecting the forum of appeal and if the same is otherwise found to be desirable by the court. It was held that so far as the provisions of section 24 of CPC are concerned, the arguments that it takes away the vested right of appeal cannot take away the power of the court to transfer.
6. The apprehension of the counsel for the petitioner that the court of Learned Additional District Judge, to whom suit-I along with application u/o. 39 Rule 2A of CPC have been transferred, will have no jurisdiction to entertain the same, is misplaced.
7. I do not find any merit in the Transfer Petition. The same is dismissed.
RAJIV SAHAI ENDLAW (JUDGE) September 26, 2008 k Tr.P.10/2008 Page 4 of 4