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Thirmala Reddy Mahalakshmamma Vs. Mulkluri Murlidahar Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberTransfer Civil Misc. Petn. No. 713 of 1968
Judge
Reported inAIR1970AP194
ActsCode of Civil Procedure (CPC), 1908 - Sections 24
AppellantThirmala Reddy Mahalakshmamma
RespondentMulkluri Murlidahar Rao and ors.
Appellant AdvocateVenkatesh Wadki, Adv.
Respondent AdvocateA.V. Krishna Rao, ;J.V. Suryanarayana and ;R. Rarasimha Reddy, Advs.
Excerpt:
property - transfer of case - section 24 of code of civil procedure, 1908 - suit filed for injunction and possession of property - defendant seeks transfer of suit from of district munsif of narasaraopet to court of district munsif of bodhan in nizamabad - suit property situated in nizamabad - held, suit to be transferred to court of district munsif of bodhan. - - he relies upon the well known case of ledgard v......and enjoyment. she alleges that the 5th and 6th defendants have no interest in any of the suit properties, that they are friends of the plaintiff and that they are impleaded in the suit merely to invest the varasaraopet court with jurisdiction. it is stated in para 4 of the written statement:'4. he filed this suit with false and frivolous allegations by adding b and c schedule undisputed properties and adding defendant 5 and 6, his own friends with a view to create jurisdiction to this court, and with ulterior object of putting defendants 1 to 4 to great inconvenience. the real dispute relates to a schedule properties which are situated in banswada taluk of nizamabad district. so this court cannot have territorial jurisdictin to try this suit.'in para. 8 it is stated :'this.....
Judgment:
ORDER

1. The 4th defendant in O. S. No. 305/1967 on the file of the Court of District Munsif of Narasaraopet in Guntur District seeks a transfer of the suit to the Court of District Munsif of Bodhan in Nizamabad District. The suit is laid by the plaintiff for a permanent injunction restraining the several defendants from interfering with the plaintiff's enjoyment of the properties mentioned in the A, B, and C schedulers annexed to the plaint. A schedule properties are lands situated in Jakora village in Nizamabad District while B and C schedule properties are a house and house site situated in Mulakalur and Chimalamani in Guntur District. The plaintiff claims that he is entitled to all the properties as the heir of his adoptive father Kutumba Rao, as also under a will executed by the said Kutumba Rao. Defendants 1 to 4 are stated to be residents of Sri Nagar in Nizamabad District while defendants 5 and 6 are residents of Mulakalur in Guntur District. A single suit is laid in respect of all the properties and against all the defendants by making the vague allegation 'All the defendants conspired together and with a common unlawful intention are trying to cause obstruction to the enjoyment of the plaintiff of his properties.'

2. The fourth defendant has filed a written statement claiming that 'A' scheduler properties belong to her and are in her possession and enjoyment. She alleges that the 5th and 6th defendants have no interest in any of the suit properties, that they are friends of the plaintiff and that they are impleaded in the suit merely to invest the Varasaraopet Court with jurisdiction. It is stated in Para 4 of the written statement:

'4. He filed this suit with false and frivolous allegations by adding b and C schedule undisputed properties and adding defendant 5 and 6, his own friends with a view to create jurisdiction to this Court, and with ulterior object of putting defendants 1 to 4 to great inconvenience. The real dispute relates to A schedule properties which are situated in Banswada Taluk of Nizamabad district. So this Court cannot have territorial jurisdictin to try this suit.'

In Para. 8 it is stated :

'This Court will not have pecuniary and territorial jurisdiction also.'

3. The fourth defendant has filed the present application for transfer contending the since the A schedurle proeperties are situated in Nizambaddistrict and the suit is one for a permanent injunction, cnvenience of parties and witnessess requires that it should be tried in the Court of District Munsif, Bodhan. It is averred that thesuit is laid in the Court at Narasaraopet only for the purpose of harassing the petitioner. It is also stated that defendants 5 and 6 are not really interested in the plaint 'B' and 'C' schedule properties and that they have been impleaded in the suit and 'B' and 'C' schedule properties have been included not because of any dispute but merely to invest the Narasarappet Court with jurisdiction.

4. The application is opposed by the plaintiff and defendants 5 and 6, Curiously enough, the plaintiff in his affidavit states that defendants 5 and 6 are interested in 'B' and 'C' schedule properties. Plaintiff also claims tht since he is relying on a wil executed in his favour at Mulakalur it is necessary to examine several witnesess from Mulakalure and therfore convenience requires that thesut shoudl be tried in Guntur District. he also claims that as arbiter litis the choice of forum is his.

5. Sri. A. V. Krishna Rao, learned Counsel for the plaintiff also raises a preliminary objection that the application under Sec. 24 is not maintainable at the instance of the petitioner who has raised an objection regarding the jurisdiction of the District Munisifs Cort, Narasaraopet. he contends that Section 24 empowers the High court or the District Court to transfer a case from one competent Court to another competent Court, but does not empower the High Court or the district Court to transfer a suit instituted in a Court which has no jurisdiction to entertain it. He submits that the defendant having raised an objection to the competency of the District Munsifs Court, Narasaaopet to entertain the suit, he cannot now seek a transfer of thesut from that Court to a cometent Court. He relies upon the well known case of Ledgard v. Bull, (1885) 13 Ind App 134 (PC), Peary Lall Mazoomdar v. Komal Kishore Dassia, (1881) ILR 6 Cal 30, Gangumal v. Nanikaram, AIR 1932 Sind 215; Kanhaiya Lal v. Hamid Ali, AIR 1940 Ough 164 and Krishnaji Rao v. Gokulda, AIR 1955 Mys 115.

The facts in (1885) 13 Ind APP 134 (PC), were tht the plaintiff instituted a suit in the Corut of a Subordinate Judge for damages for an alleged infringment of certain exclusive rights secured to him by three Indian kpatents. S. 22 of the Patents Act expressly provided that such a sut could be laid only in the Court of the District Judge. The defendant filed a written statement objecting to the jurisdiction of the Subordinate Judge to entertain the suit. Realising that the Court of Subordinate Judge had no jurisdiction to entertain or try the suit the plaintiff made an application to the District Court, in which the defendnt also jointed to transfer the suit to the file ofthe District Court. The District Court accordingly transferred the suit to its own file and tried it. Their Lordships of the privy Council held that the first essentiall step for the maintenance of a sut was its due instituion and as the sut couldnot be duly instituted in the Court of Subordinate Judge, the transference of the sut to the District Court was equally incompetent. Their Lordships also pointed out that the parties could not by their mutual consent convert an incomepetent suit into a proper judicial process. Ths case is really of no assistance because it was a case where the lack of jurisdiction of the Subordinate Judge to entertain the suit was patent and admitted and the order of transfer was itself made to get ever the plea of jurisdiction.

6. In (1881) ILR 6 Cal 30, an appeal was filed inadvertently in the Court which had no jurisdiction to entertain it, but where it could more conveniently be hear. When it was realised that the Court had no jurisdiction to her the appeal the appellant filed an application in the High Court to issue a rule authorising the Court to hear the appeal. The learned Judges of the Calcutta High Court held that they had no power to authorise any Court to assume jurisdiction to receive and hear an appeal contrary to the usual course prescribed by the Code. They observed that they had power under Section 25 of the Code of Civil Procedure to direct the transfer of an appeal only from a Corut having jurisdiction to receive and try it. The learned Judge did not lay down the propositions that as soon as an objection is raised regarding the jurisdiction of a Court to try a suit no application for transfer of the suit from that Court is competent. This case also is of no assistance to the plaintiff.

In AIR 1940 Oudh 164, there is nothing in the judgment to support the contention of the plaintiff in the present case. In fact the present question never arose there as the suit had gone to trial without objection. The observations 'we are therefore of opinion that so far as Section 24 Civil P. C. is concern there is no reason to make a distinction between lack of inherent jurisdiction and lack of any other kind of jurisdiction in a Court trying the suit' do not assist the plaintiff in any manner. however, the case of Air 1932 Sind 215 and AIR 1955 Mys 115, are directly in point and they do lay down that it is not open to a defendant to contend that a particular Court has not jurisdiction to entertain a suit and at the same time ask for a transfer of the case of some othe Court. The learned Judges lay down sucha rule, but the principle on which they base such a rule is not clear from the reports of the cases. It could not be o the principle that there can be transfer of a entertain the suit because there was neither decision that the suit was incompetent nor was it common ground tht the suit was incompetent. It could not also be on any principle of estoppel because it could not possible be said that the plaintiff has been misled into doing something which he would not have otherwise done. I am therefore reluctant to follow these two authorities.

7. The lanugage of Section 24 Civil P. C. is very wide and there are no restictions or impediments in the way ofthe High Court exericising the power of transfer merely because ther is a dispute regarding jurisdiction. In Narain Das v. Khunni Lal, (AIR 1934 All 569), Iqbal Ahmad, J., held tht Court toentertain a suit is not patent or is ot admitted, the power of the High Court to trnsfer a sut is untrammelled by any conditins and it si not necessary for the Court before making an order of transfer, to enter into the vexed and troublesome question of jurisdiction of the Court in whch the suit was instituted. In K. L. Daftary v. K. L. Dube, (Air 1955 Nag 44), Sen, J., held tht the power of transfer vested in the High Court is not fettered by any conditions and that there is no bar to the exericise of power undr Sectin 24 of the Code merely because there is a dispute on the question ofjurisdiction. Sen, J. also referred to the observations of Bose, J. in an unreported case where transferring a sut pending in the Akola court to a Court at Wardha even though there was a dispute regarding the jurisdiction of the Akola Court , the lerned Judge had observed:

'Taking this into consideration plus the fact that the Wardha Court undoubeldly has jurisdiction while tht of the Akola Court is problematical, I direct of my own motion that the case be transferred to the Wardha Court under Sec. 24, Civil P. C.'

8. I Prefer to follow the view taken by Iqbal Ahmad, J., Sen, J. and Bose, J., to the view taken by the Sind and the Mysore Courts. Accordingly I overrule the preliminary objection raised by Sri A. V. Krishna Rao.

9. On the merits I have no doubt that thesut ahs been instituted in the Court at Narasaraopet merely with a view to harass the 4th defendant and to gain an unfair advantage. The A schedule prperties are situated in Nizamabad District, the suit is one for a permanent injunction and the main question will necessarily be regarding possession of the properties. The appears to be considerable substance inthe allegation of the 4th defendant that the 'B' and 'C' schedule properties have been included inthe suit and the 5th and 6th defendants have been impleaded as aprties to the suit merely with a view to give jurisdiction to the Court at narasaopet.

There is also no substance in the contention tht theplaintiff has to prove the will whiich is sated to have been executed at Mulakalur within the jurisdiction of the Court at Narasaraopet becasue, will or no will, the plaintiff is still the heri of late Kutumaa Rao, hs adoptive father. O. S. No. 305/1967 on the file of the District Munsiffs Court Narasaraopet is, therfore directed tobe trasnferred to the Court of the District Munsif, Bodhan for trial and disposal according to law. The petitioner is entitled to his costs. Advocate's fee Rs. 100.

10. Petition allowed.


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