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N. Ram Mohan Vs. J. Kasthuri - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported inAIR1976Mad271; (1976)1MLJ163
AppellantN. Ram Mohan
RespondentJ. Kasthuri
Cases ReferredMallampati Kondaya v. The Official Receiver
Excerpt:
- .....and presenting it on the original side of this court, wants to transfer the suit under section 24, civil procedure code. this petition is opposed by the resondent herein. mr. d.k srinivasagopalan, learned counsel for the respondent, submitted that this court sitting on the appellate side has no jurisdiction to transfer the original petition to the original side of this high court. learned counsel also submitted that section 24 (1) (b) (i) of civil procedure code will not apply to the facts of this case. learned counsel further submitted that there are certain procedures for filing pauper petitions before the original side of this court and that by transfer all those formalities will have to be dispensed with. hence learned counsel suggested that the plaint may be returned by the city.....
Judgment:
ORDER

P.R. Gokulakrishnan, J.

1. This is a petition to transfer the pauper suit numbered as O. P. No. 254 of 1974 together with all the pending applications on the file of the X Assistant City Civil Judge Madras to the Original Side of this Honble Court for trial and disposal according to law. For the purpose of this transfer suffice it to state that the petitioner herein has filed the Orignal Petition for partition and separate possession of his i share in the suit properties before the X Assistant City Civil Judge, Madias. Subsequent to the filing of the pauper suit for partition, the respondent in that Original Petition, who is no other than the mother of me petitioner herein, died. Hence the petitioner herein has filed an application stating that after the death of his mother who was the respondent in that Original petition, he is, entitled to get a share of 3/4 in the suit properties instead of 1/2 share and the value of such 3/4 share is admittedly, more than Rs. 50,000. This amendment sought for by the petitioner herein has been allowed by consent of the respondent herein. Thus it is clear that the X Assistant City Civil Judge, Madras will not have jurisdiction to try the suit inasmuch as the value is over Rs. 50,000. It is only the High Court of Judicature at Madras which can try this Original Suit.

2. The petitioner herein, in view of the fact that so many applications are pending before the X Assistant City Civil Judge, Madras and also in view of the fact that the interests of justice will be well protected if a transfer is made instead of withdrawing the suit from the City Civil Court and presenting it on the Original Side of this Court, wants to transfer the suit under section 24, Civil Procedure Code. This petition is opposed by the resondent herein. Mr. D.K Srinivasagopalan, learned counsel for the respondent, submitted that this Court sitting on the Appellate Side has no jurisdiction to transfer the Original Petition to the Original Side of this High Court. Learned counsel also submitted that section 24 (1) (b) (i) of Civil Procedure Code will not apply to the facts of this case. Learned counsel further submitted that there are certain procedures for filing pauper petitions before the Original Side of this Court and that by transfer all those formalities will have to be dispensed with. Hence learned counsel suggested that the plaint may be returned by the City Civil Court as provided under Order 7, rule 10 (1), Civil Procedure Code and the petitioner can as well present it before this Court.

3. Mr. Deenadayal, the learned counsel for the petitioner submits that this Court has ample jurisdiction under section 24 (1) (b) (i) Civil Procedure Code, to transfer the Original Petition to the Original Side of this Court. 1 his position has been amply made clear by the decision in Srirangam Municipality v. R.V. Palaniswami Pillai : AIR1951Mad807 . Learned counsel also submits that in the interests of justice and also to maintain the status quo as on date, there is no point in invoking the provisions under Order 7, rule 10 (1) Civil Procedure Code but the parties' interest will be amply served if a transfer is directed under section 24 (1) (b) (i) Civil Procedure Code. Learned counsel next con. tended that the procedure in presenting the pauper appeals is meant for the presentation of pauper suits for the first time, before the High Court. The transfer of a pauper suit can always be ordered since the same is done under section 24, Civil Procedure Code and the procedure menioned in the Original Side Rules for filing the pauper suits will not come into play for transfers under section 24, Civil Procedure Code.

4. I have been taken through the decision in Srirangam Municipality v. R.V. Palaniswami Pillai : AIR1951Mad807 . In that decision a Bench of this Court has categorically held that:

According to us the correct position is that an application under section 24, Civil Procedure Code should be made to this Court as such in the same manner as it might be made to the District Court and such an application can be validly heard and disposed of by any Judge of this Court deputed by the Chief Justice to hear such applications. We find actually in the Appellate Side Rules that an application under section 24 for transfer of any suit, appeal or other proceedings or in execution of a decree from one civil Court, subordinate to the High Court to another such Court or to the High Court can be disposed of by a single Judge. As a matter of practice, it is the learned Judge sitting in the Admission Court who deals with these applications. The decision further states that . . . it is equally true to say that the section viz., section 24, does not indicate that the High Court should exercise the power on its Original Side. . . . It is one thing to say that when the application for transfer is granted and the suit itself is withdrawn to the file of this Court then it should be tried on the Original Side of the High Court; but it is quite a different thing to say that the application for such a transfer should be made to the Original Side of this Court.

5. Thus it is clear from the observations made in the decision in Srirangam Municipality v. R.V. Palaniswami Pillai : AIR1951Mad807 , that the Court sitting for admission work is competent to transfer any suit or proceedings pending before any Court subbordinate to it. The question of disposal maybe by the Original Side of this High Court. It is only the High Court that has the power to transfer and there is no question of transferring that to the Original Side specifically but to the High Court in general. As soon as it transferred to the High Court the case will be posted automatically before the Judge sitting on the Original Side. Hence section 24 (I) (b) (2) of Civil Procedure Code has no application to the facts of this case.

6. Mr. D.K. Srinivasagopalan, referred to another decision in Mallampati Kondayya v. The Official Receiver Nellore : AIR1951Mad676 and argued that the High Court has no power under Section 24(6) of the Civil Procedure Code to transfer an Insolvency Petition pending before a Subordinate Court to the file of the Original Side of this Court. On an analogy, learned counsel wants to state that this Bench decision can be taken to prohibit even transfer of pauper suits pending before a subordinate Court. It has been made clear in this decision that the High Court has no power at all, to transfer that Insolvency Petition when there is no jurisdiction for the High Court to try an insolvency proceeding As for the facts of that case it is clear that the Court has held that a transfer cannot be made under section 24, Civil Procedure Code. But as far as the present case is concerned, the High Court has jurisdiction to try a pauper suit and I do not think that the decision in Mallampati Kondaya v. The Official Receiver, Nellore : AIR1951Mad676 will be of any use to the learned counsel for the respondent herein.

7. The High Court has ample powers under section 24 to transfer a pauper suit also. The question of procedural difficulties will not arise in cases of transfer made under section 24, Civil Procedure Code. Even if it is so, those difficulties can be cured in the larger interests of justice and equity. The present case is fit case for transfer in as much as the respondent herself has admitted that the pauper petition filed before the Court below has to be amended enlarging the value of the suit. If that be so, admittedly, the High Court of Judicature in its Original Side alone has jurisdiction to try the matter in which the valve is over and above Rs. 50,000. Taking all these aspects into consideration, I think in the interests of justice and also to avoid unnecessary complications and difficulties to the petitioner herein, by asking him to withdraw the suit and present it to the High Court, O. P. No. 254 of 1974 together with all pending applications on the file of the X Assistant City Civil Judge, Madras will stand transferred to the file of this Court to be tried by the Original Side of this High Court. There will be no order as to costs.


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