2015(1) ALL MR 139
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.B. CHAUDHARI, J.
Gurdeepsingh s/o. Gopalsingh Bagga & Ors. Vs. Gurucharansingh s/o. Gopalsingh Bagga & Ors.
Civil Revision Application No.25 of 2013
27th March, 2014
Petitioner Counsel: Mr. JAIDEEP J. CHANDURKAR
Respondent Counsel: Mr. S.S. SANYAL
(A) Civil P.C. (1908), S.24 - Transfer of suit - Application for - Suits are for different purpose, one for partition and another for eviction - However, pleadings in suits reveal that suit property is same and parties to suit are almost related to each other - One property in suit is a part and parcel of entire property in other suit - Property and parties being interlinked, there is likelihood of conflict between findings of two different courts - Hence, transfer application allowed. (Para 6)
(B) Civil P.C. (1908), S.24 - Consolidation of suits - Validity of - Provision of S.24 is restricted only for transferring suit/suits from one subordinate court to other - It does not enable or authorize to make further order of consolidation of suits for hearing and disposal - Consolidation of suits for hearing and disposal requires adjudication as to whether and why two or more suits should be consolidated for purpose of hearing - There cannot be an order of consolidation passed mechanically - If an order of consolidation is made, parties to suits are guided in totally different manner in so far as conduct of trial of civil suits is concerned - Documentary as well as oral evidence also required to be tendered in court with methodology which would subserve interest of each parties to suit - Order of consolidation results into civil consequences - Principal District Judge usurped power or authority in making direction to try both suits together - Order of consolidation of suits, not proper. (Para 8)
JUDGMENT :- Rule. Rule is made returnable forthwith. Learned Adv. Mr. S.S. Sanyal waives service on behalf of respondent no.1. By consent of the counsel for the rival parties, this Civil Revision Application is taken up for final hearing.
2. The applicants are aggrieved by an order dated 22nd November, 2012 passed by Principal District Judge, Amravati, in Misc. Civil Application No. 73 of 2012, filed by the present respondent no.1 plaintiff in Regular Civil Suit No. 270 of 2011, under Section 24 of Code of Civil Procedure.
3. In support of the Revision Application, learned Adv. Mr. Chandurkar for the Revision Applicants contended that the impugned order of transfer is illegal, because one is a suit for eviction under the Maharashtra Rent Control Act, 1999, whereas the subject matter of other suit pertains to partition etc. One suit will lie before the Court of Civil Judge [Senior Division], while the other would lie before the Court of Small Causes. The jurisdictions of the Courts in respect of the aforesaid two suits are different. The parties to these both the suits are different, the subject-matters of the suits also differ and, therefore, the learned District Judge could not have made an order of transfer of suits to one Court. Learned Adv. Mr. Chandurkar also argued that the order of transfer of a suit, which relates to Section 33 (2) of the Maharashtra Rent Control Act, made by the District Judge, is misconceived, since in the fact-situation, the said provision is not available. Mr. Chandurkar then continued to argue that the learned Principal District Judge also made an order to try both the suits together, which, in effect and in law, amounts to consolidation of the suits for the purpose of hearing.
4. Per contra, learned Adv. Mr. Sanyal for the respondents, supported the impugned order, and argued that the learned Principal District Judge has made a transfer for the reasons stated in the order, and at any rate, he found that there should no conflict of findings in judgment, since issues about partition and eviction are closely inter-related and the parties are also related to each other. For the reasons in the partition suit, the determination of shares and entitlement, identification etc., will have to be made, which has an impact on the suit for eviction equally also. He, therefore, argued that the order of transfer of suit in exercise of the judicial discretion exercised by the Principal District Judge cannot be faltered. He then argued that the Principal District Judge went ahead and made an order of trying the suits together since he found that it was necessary to do so, in order to avoid any conflict of findings. He, therefore, prayed for dismissal of the Revision Application.
6. Though it is true that the two suits are for different purposes, namely one for partition and another for eviction, the pleadings in the suits, as seen by the learned Principal District Judge and also considered by me, reveal that the suit property is same and parties to the suit are almost related to each other and one property in the suit is a part and parcel of entire property in the other suit. That being so, I think, the learned District Judge rightly found that the property and the parties being inter-linked, there is a likelihood of conflicting findings of two different courts and that is the reason why the order of transfer of a suit impugned is well justified. The judicial discretion exercised by the Principal District Judge is supportable.
7. The next question is the direction given by the learned Principal District Jduge in Operative Part no. 1 of the order to try both these two suits, namely Regular Civil Suit No. 270 of 2011 and Special Civil Suit No. 40 of 2012 together. Section 24 of the Civil Procedure Code reads thus:-
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 rate -
(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 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 the same for trial or disposal to the Court from which it was withdrawn.
(2) Whether 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 withdraw.
(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) proceedingincludes 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.
8. Upon perusal of the above provision, it is clear that the provision of Section 24 is restricted only for transferring the suit/suits from one subordinate court to the other. It does not enable or authorize the District Judge to make a further order of consolidation of suits for hearing and disposal. Consolidation of suits for hearing and disposal is a matter, in my opinion, which requires adjudication as to whether and why the two or more suits should be consolidated for the purpose of hearing. There cannot be an order of consolidation passed mechanically. If an order of consolidation is made, the parties to the suit are guided in a totally different manner in so far as the conduct of trial of the civil suits is concerned. The documentary as well as oral evidence also is required to be tendered in the Court with a methodology which would subserve the interest of each of the parties to the suit. Therefore, an order of consolidation results into civil consequences. Such an order, therefore, will have to be made by a Court upon hearing the parties and upon applying the settled principles of law in the matter of consolidation of the suits for the purpose of hearing and disposal. For the above reasons, therefore, I think that the Principal District Judge usurped the power or authority under Section 24 of Civil Procedure Code in making a direction to try both the suits together. The said part of the order, therefore, will have to be held to be without jurisdiction. But then the parties ought to be given liberty to take such steps are are advised in that behalf. In the result, I make the following order:-
[a] Civil Revision Application No. 25 of 2013 is partly allowed.
[b] The order of transfer of proceedings of Regular Civil Suit No. 270 of 2011 is confirmed.
[c] The order directing trial of both the suits together, or along with Special Civil Suit No. 40 of 2012 shall stand removed with liberty to the parties to take such steps as are advised.