Delhi District Court
Sh. Kalu Ram vs Sh. Pratap & Anr on 9 March, 2009
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IN THE COURT OF SHRI RAKESH TEWARI:
ADDL. DISTRICT JUDGE-19: CENTRAL DISTRICT,
TIS HAZARI COURTS : DELHI.
SUIT NO.870/08
Sh. Kalu Ram
....PLAINTIFF
VERSUS
Sh. Pratap & anr.
....DEFENDANTS
09.03.2009
ORDER
1. By this order I shall dispose of an application under Section 151 CPC moved on behalf of the defendants.
2. It is submitted in the application that initially this suit for partition was filed before the court of Ld. Civil Judge, Delhi and vide its order dated 6.12.2007, the Ld. Trial Court came to the conclusion that the total value of the suit property came to Rs. 5,42,957/- which exceeded Rs. 3 lacs and hence that civil court was not having the pecuniary jurisdiction to entertain the present suit.
3. It has been further submitted that the Ld. Trial Court 2/6 instead of returning the plaint under Order 7 R 10 CPC send the file to the Ld. District Judge for assigning the same to the court of competent jurisdiction and it is in this background that this suit has come before this court. Ld. Counsel for the defendants has relied upon the judgment of the Hon'ble High Court of Delhi reported as AIR 1992 Delhi 233 and also on the High Court rules.
4. In his reply, the plaintiff has stated that the defendants did not get a preliminary issue framed on the pecuniary jurisdiction of the Ld. Civil Judge and now at this stage the defendants cannot raise the said objection when the case is at the stage of final arguments and that the tentative court fee has been given and the plaintiff had undertaken to pay the remaining court fee after determination of the share of the plaintiff.
5. Although the Ld. Civil Judge was having no jurisdiction to send the file to the Ld. District Judge to be assigned to the court of competent jurisdiction and that order was patently wrong under the law and the plaint should have been returned under Order 7 R 10 CPC but at the same time Section 24 of the CPC reads as under:
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"Section 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 proceedings 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 or 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) 4/6 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."
6. From the plain reading of sub clause (3) of Section 24 CPC, the courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court meaning thereby that the Ld. District Judge has the power to transfer any case to any of the Additional District Judge. 5/6
7. Sub Clause (5) of Section 24 CPC clearly stipulates that a suit or proceeding may be transferred under this section from a court which has no jurisdiction to try it. The plain reading of Section 24(1)(b) CPC mentions that the Ld. District Judge can withdraw any suit, appeal or other proceeding pending in any court subordinate to it.
8. I have gone through the order dated 11.12.2007 passed by the Ld. District Judge wherein the suit no. 122/99 titled Kalu Ram Vs. Pratap was withdrawn from the court of Ld. Civil Judge and was assigned to the court of Ld. ADJ and as such there is no infirmity in the order of the Ld. District Judge and reliance can be placed upon a judgment of the Hon'ble High Court of Delhi titled Shri Rail Chand Vs. Shri Alal Chand and others reported as ILR (1978) 1 Delhi wherein in almost identical circumstances when the case was fixed for final arguments the Hon'ble High Court of Delhi has held that although the order of the Ld. Civil Judge sending the case to the Ld. District Judge to be assigned to the competent court of jurisdiction instead of returning the plaint was wrong but in such cases the Ld. District Judge or 6/6 the Hon'ble High Court can exercise its power under Section 24(5) CPC and the case was ordered to be transferred accordingly.
9. Sub clause (2) of Section 24 CPC further mentions that 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. As there are no special directions in the order dated 11.12.2007 passed by the Ld. District Judge, I am of the opinion that the case should proceed from the point at which it was withdrawn and transferred to this court. Accordingly, the application of the defendants under Section 151 CPC is hereby rejected. ANNOUNCED IN THE OPEN COURT ON 09.03.2009 (RAKESH TEWARI) ADJ-19: CENTRAL DISTRICT DELHI.