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B.P. Das

1. This application has been filed by the petitioners under Section 115 of the Code of Civil Procedure ('CPC' in short) assailing the order passed by the District Judge Ganjam-Gajapati. Berhampur in M.J.C. No. 30 of 2002, disposing of an application filed under Section 24 of the C.P.C. by the defendants, the present petitioners, with a prayer for transfer of T.M.S. No. 68 of 1998, pending before the Civil Judge (Senior Division), Aska to the Court of the Civil Judge (Senior Division), Berhampur.

2. The State Bank of India, i.e.. opposite party No. 1 as plaintiff has filed the above suit for recovery of the loan amount from the present petitioners as well as opposite parties 2 and 3 jointly and severally. The application under Section 24, CPC was rejected by the District Judge with the observation that mere adjournment application and posting the suit for peremptory hearing does not come within the ambit of Section 24, C.P.C. As it appears from the impugned order, the suit was posted to 10-5-2002. The present petitioners being defendants applied for time on the ground of pre-occupation of their lawyer at Berhampur. The same was allowed and the case was posted for hearing peremptorily to 10-5-2002 for which an application was moved for transfer of the suit. Now a stand is taken in this present proceeding that the defendants reside at Berhampur i.e. outside the jurisdiction of Aska Court and the plaintiff-Bank is also situated at Berhampur, and all the formalities and transactions of the loan took place at Berhampur. According to the learned counsel for the petitioners the suit has been filed by the Bank in the Court of Civil Judge (Senior Division), Aska solely for the reason that the mortgaged property is situated within the territorial jurisdiction of the Aska Court. According to him, continuance of the suit in Aska Court is not in the interest and convenience of the parties, particularly of the petitioners. It is further pleaded that all the accounts of the petitioners are al Berhampur and continuance of the suit only due to the reason of location of property at Aska, which is 40 kilometers away from the place where the petitioners reside, will cause undue hardship to them. Accordingly, a prayer is made to set aside the order passed by the District Judge, Ganjam-Gajapati, Berhampur and for transfer of the suit from Aska Court to Berhampur Court.

4. So, the sum and substance of the argument of the learned counsel for the petitioners is that it is in the interest of justice as it would be convenient for the defendants to conduct their cases effectively at Berhampur and as the plaintiff Bank is also situated at Berhampur, the ends of justice will be served best if the case is transferred to Berhampur from Aska even if the mortgaged property is situated at Aska.

5. Mr. M.M. Das, learned counsel for opposite party submits that the grounds taken before this Court was not initially in the application filed under Section 24 of the Code of Civil Procedure and refers to a decision of this Court in the case of Hadibandu Mallik v. Chandra Sekhar Behera, reported in AIR 1973, Orissa 141 wherein it was held that-

9. In the case at hand, it appears that the suit has been instituted in the Aska Court which is having both pecuniary jurisdiction as well as the territorial jurisdiction and there is nothing to indicate either in the pleading or in the petition as to how the interest of the defendants would be served best in transferring the same to Berhampur Court. The Aska Court having pecuniary and territorial jurisdiction to try the suit, I do not find any justification to set aside the impugned order passed by the learned District Judge, Ganjam-Gajapatt, Berhampur.