Skip to content


Nirmal Chandra Dutta Vs. Pradip Kumar Dutta - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberMatter No. 50 of 1985
Judge
Reported inAIR1986Cal177
ActsCode of Civil Procedure (CPC) , 1908 - Section 24
AppellantNirmal Chandra Dutta
RespondentPradip Kumar Dutta
Appellant AdvocatePartha Pratim Basu, Adv.
Respondent AdvocateR.K. Lala, Adv.
DispositionApplication dismissed
Cases ReferredRupendra Deb v. Ashrumati Debi
Excerpt:
- orderc.k. banerji, j.1. this is an application for transfer of a suit pending in the city civil court to this court under clause 13 of the letters patent read with section 24 of the code of civil procedure. the plaintiff filed a suit in the city civil court being title suit no. 1387 of 1981 against pradip kumar dutta for a declaration that the plaintiff is in exclusive possession of one room on the ground floor by the side of courtyard of premises no. 14, govinda sen lane, calcutta. in the city civil court the plaintiff's case is that the plaintiffs father is a co-sharer in respect of the said premises no. 14, govinda sen lane. the plaintiff purchased from two of the co-sharers their undivided shares in the said premises by two sets of conveyances dated 1st aug. 1980 and 23rd feb. 1980......
Judgment:
ORDER

C.K. Banerji, J.

1. This is an application for transfer of a suit pending in the City Civil Court to this Court under Clause 13 of the Letters Patent read with Section 24 of the Code of Civil Procedure. The plaintiff filed a suit in the City Civil Court being Title Suit No. 1387 of 1981 against Pradip Kumar Dutta for a declaration that the plaintiff is in exclusive possession of one room on the ground floor by the side of courtyard of premises No. 14, Govinda Sen Lane, Calcutta. In the City Civil Court the plaintiff's case is that the plaintiffs father is a co-sharer in respect of the said premises No. 14, Govinda Sen Lane. The plaintiff purchased from two of the co-sharers their undivided shares in the said premises by two sets of conveyances dated 1st Aug. 1980 and 23rd Feb. 1980. In terms of the said two conveyances the vendors made over possession to the plaintiff of the two rooms on the first floor and one room on the ground floor of the said premises. By another conveyance dated 24th Feb 1981, the plaintiff purchased from Samir Chand Dutta his undivided half share in the said premises. Samir Chand Dutta is a defendant in the City Civil Court suit. The plaintiff's further case is that the plaintiff and his father have been in occupation of seven rooms in the said premises of which three rooms were given possession of to the plaintiff by earlier vendors and such occupation of the plaintiff and his father thus comprised of two rooms on the ground floor by the side of the courtyard and five rooms on the first floor and the second floor The plaintiff complained in the City Civil Court that for some time the defendant Dilip Kumar Dutta and his brother attempted to take forcible possession of two rooms on the first floor and one room on the ground floor The plaintiff's father thereupon filed a petition under Section 144(2) of the Code of Criminal Procedure before the Executive Magistrate, Calcutta against Dilip Kumar Dutta and his brother for maintenance of status quo Cause of action is pleaded to have arisen on the 25th March, 1981 when the defendant made an attempt to take forcible possession of one room on the ground floor in possession of the plaintiff. In the City Civil Court the plaintiff made an interlocutory application for injunction restraining the defendants from disturbing the possession of the plaintiff. The defendant in the City Civil Court appeared and filed his written statement making a counter-claim that the room on the ground floor of which the plaintiff is claiming declaration of possession has been forcibly taken possession of by the plaintiff from the defendant and the plaintiff is in wrongful possession and occupation thereof as a trespasser and he has claimed possession of the said room and declaration of his title in the written statement. The,interlocutory application made in the City Civil Court was opposed by the defendant by filing a counter-affidavit and ultimately the said application was disposed of by the learned Judge, 10th Bench of the City Civil Court by his order dated 16th March, 1983; The learned Judge prima facie found that the defendant was in possession of the rooms in dispute from 25th Feb. 1981 to 25th March, 1981 and he was dispossessed by the plaintiff therefrom on the 26,27th March, 1984. The learned Judge on that basis vacated the interim order of injunction inasmuch as the plaintiff being a trespasser had no lawful possession against the defendant who had been dispossessed. It appears that the City Civil Court suit has been ready for hearing for sometime past and peremptory hearing had been fixed. After the injunction was dissolved by the learned Judge, City Civil Court, the plaintiff on the 13th July, 1984 instituted the Suit No. 499 of 1984 (Nirmal Chandra Dutta v. Pradip Dutta) in this Court for partition of the premises No. 14, Govinda Sen Lane, Calcutta. Thereafter the plaintiff on the 16th Aug. 1984 made an application before the City Civil Court for withdrawal of the said suit pending in the City Civil Court. Objection was taken thereto by the defendant on the 19th Sept., 1984. The plaintiff filed an application before the City Civil Court for withdrawal of the application for withdrawal of the suit and on the 23rd Nov. 1984, an order was made whereby the plaintiff did not press the application for withdrawal of the suit in the City Civil Court and the Court directed that the suit will proceed and date for peremptory hearing was fixed on 12th Jan. 1985. Now the present application has been made by the plaintiff for transfer of the City Civil Court suit to this Court and this application has been made on or about 9th Jan, 1985. Mr. Partha Pratim Basu, the learned counsel for the plaintiff petitioner submitted that since a suit for partition has been filed in this Court and all disputes between the parties would be decided in the partition suit, the suit in the City Civil Court should be transferred to this Court so that both the suits can be heard together and there would be no cause for conflict of decisions and this would also save multiplicity of proceedings. It was urged by Mr. Basu that some of the documents would be common to both the suits and which would create difficulties for the parties to conduct two different suits in two different courts with the same set of documents and would create difficulties in production of original documents before both these courts. In the City Civil Court whatever decision might be in the suit the party aggrieved would necessarily come in appeal before this Court but if both the suits are heard by this Court one after the other at the same time that question would not arise. It was also urged that loth the suits and in particular the City Civil Court suit could be more effectively disposed of by this Court than by the City Court and at a lesser expense. It was lastly urged that the balance of convenience was in favour of both the suits being tried by this Court. Inasmuch as both the plaintiff and the defendant would have to fight out the two suits in two different courts and if both the suits are tried by this Court it would be convenient for both the parties to fight out the suits in this Court. A large number of decisions were cited by Mr. Basu to establish his contentions It is not necessary to deal with the said cases in detail as there could be no dispute on the propositions laid down in all those decisions. The following decisions were cited by Mr. Basu.

(1) Purna Chandra Mahanty v. Samanta Radhaprasana Das reported in : AIR1953Ori46 . This was a case of transfer of a suit under Section 24 of the Code of Civil Procedure and it was held in that case that the plaintiff had the choice of his forum so long as the suit was not subject to the defect of want of local jurisdiction and a suit was not to be transferred from the Court where the plaintiff chooses to institute the suit, merely to serve the convenience of the defendants It was also observed that if there were two suits which raise certain common questions and questions of fact or law arises having a substantial bearing on the decision of each of the cases, it was desirable that they should be tried at the same place and by the same Judge. This course was necessary in order to avoid multiplicity in the trial of the same issues and conflict of decisions. In this context the Court also considered the question of balance of convenience. Here the suit filed in the Court of Subordinate Judge, Balasore was sought to be transferred to the Court of Subordinate Judge, Cuttack where another suit between the same parties was pending.

No doubt the plaintiff has choice of his forum but once he has exercised the same by filing the suit in the City Civil Court the plaintiff could not sometime afterwards turn round to exercise his choice of forum afresh seeking to transfer the suit to this Court or to some other court of his choice. That is not the principle which is laid down in this decision.

(2) District Collector, Kozhikode v. Kerala Verma Kovil Thampuran, reported in : AIR1960Ker199 . This was also a case under Section 24 of the Code of Civil Procedure for transfer of the suit. Here four different plaintiffs to enforce their respective claims filed suits in which the State of Kerala was a common defendant. In all these suits certain common questions of facts and law having substantial bearing on the decision of each of the cases arose and the Court held that it was desirable that they should be tried at the same place and by the same judge as this course was necessary to avoid multiplicity in the trial of the same issues and also conflicting decisions.

(3) Baburam Agarwalla v. Jamunadas Ramji & Co. reported in : AIR1951Cal239 . This was a case under Clause 13 of the Letters Patent for transfer of a suit pending before the Subordinate Judge at Jalpaiguri. It was laid down by the learned Judge that in determining the balance of convenience for the trial of a suit the court has to take into consideration firstly the convenience or inconvenience of the plaintiff and the right of the plaintiff to choose his own forum, secondly the convenience or inconvenience of the defendant, thirdly the convenience or inconvenience of witnesses required for a proper trial of the suit, fourthly, the convenience or inconvenience of a particular place of trial having regard to the nature of the evidence on the main points involved in the suit and lastly the nature of issues in the suit. It was also observed that the words purposes of justice' in Clause 13 of the Letters Patent are general and wide so as not to fetter the discretion of the High Court in any way and if the Statute has not chosen to formulate or exhaust the grounds on which suits may be removed from other courts to High Court it is not for the High Court to define or delimit such grounds.

(4) Sudhirendra Nath Mitter v. Arunendra Nath Minor, reported in (1949) 53 Cal WN 261. This was also a case of transfer of a suit under Clause 13 of the Letters Patent. The sun sought to be transferred was pending in the Alipore Court. It was observed in this case by the learned Judge that the plaintiff has the right to choose his own forum but this right is subject to control under Clause 13 of the Letters Patent. If the High Court feels that for purposes of justice a suit should be transferred the court must do it and to justify a transfer something more than mere balance of convenience in favour of the proceedings in the High Court should be necessary. The court must be satisfied that either the expenses or the difficulties of the trial in the Muffasil Court would be so great that injustice would be done. Taking all the facts into consideration if the court comes to the conclusion that the plaintiff in commencing an action in a particular court has not done so on account of any legitimate advantage which a trial in that court will give him but for purpose entirely foreign to that legitimate purpose apart from any question as to expense or inconvenience not only has the court jurisdiction but it is the duty to transfer the proceedings.

(5) In re : Emerald Printing Works Ltd., reported in (1963) 67 Cal WN 1059. This was an application under Clause 13 of the Letters Patent and under Section 24 of the Code of Civil Procedure for transfer of a suit pending in the Alipore Court. Here the company had been directed to be wound up and the Official Receiver of this Court was appointed liquidator and subsequently by another order the Official Receiver was appointed the Official Liquidator of the Emerald Printing Works. An application was made for transfer of the suit to this Court. There were allegations against the Official Liquidator of fraud and collusion in discharge of his duties in the winding up proceedings and he was a necessary and material witness in the said suit. On these grounds the court held that it was fit and proper that the suit relating to such subject-matter pending in the lower court should be transferred to the High Court and be heard by the High Court in its extraordinary original Civil Jurisdiction under Clause 13 of the Letters Patent.

(6) Kalidas Roy v. University of Calcutta reported in : AIR1951Cal129 . This was also a case of transfer of a suit pending before the fourth court of Munsif at Alipore to this Court. It was held by the learned Judge that under Clause 13 of the Letters Patent the High Court could transfer any suit pending in any court over which it had power of superintendence whenever the High Court thought it proper to do so either on the agreement of the parties or for the purpose of justice. The power given to the High Court under Clause 13 is in a wide form and has to be construed as such but the only limitation being the existence of purposes of justice. 'Purposes of Justice' do not relate exclusively either to the plaintiff or to the defendant, it relates to the whole subject-matter of the suit and to all persons affected thereby. The court has to see the entire pattern of things from a detached sight and make up its mind when it would be for the greatest good of everybody and everything concerned that it should intervene and take upon itself the burden of trying the suit.

2. Mr. R. K. Lala, learned Counsel for respondent on the other hand contended that this application is wholly mala fide and has been made with a motive to maintain the illegal possession of the ground floor room, which the plaintiff has forcibly taken possession of from his client Pradip Kumar Dutta. In the interlocutory application before the City Civil Court the learned Judge found that the plaintiff was a trespasser and has wrongfully dispossessed his client and, therefore, the order of injunction which was originally passed, was vacated by the learned Judge. The suit was fixed for peremptory hearing but could not be heard. The plaintiff made an application for withdrawal of the City Civil Court suit, thereafter made another application for withdrawal of the application for withdrawal of the suit. In the meantime after the injunction was dissolved by the City Civil Court the plaintiff filed the partition suit in this Court and thereafter made this application for transfer of the City Civil Court suit to this Court. The City Civil Court suit is no more a suit of the plaintiff alone because of the counter-claim made by his client in his written statement. It is also a suit of his client. The forum convenience which the plaintiff originally had and was exercised by the plaintiff in filing the suit in the City Civil Court cannot now be altered and the plaintiff cannot exercise his right of forum of convenience over again and have the suit transferred from one court to another according to his choice. Mr. Lala, however, submitted that the decisions cited on behalf of the plaintiff have laid down the law on the subject and he has no dispute with the propositions kid down therein. But in most of the cases the suits have been filed in lower courts and so to say in the distant districts and considering the particular facts and circumstances of those cases the court made orders for transfer or did not make order for transfer. Here, Mr. Lala submitted, the plaintiff filed the suit in the City Civil Court for declaration of possession of a particular room in the premises in suit. Whether the plaintiff will succeed in the suit or will not succeed would not in any way affect the partition suit which has been filed in this Court inasmuch as in the partition suit the property would be directed to be partitioned by metes and bounds and upon such partition whatever portion of the premises would be allotted to the plaintiff or to the defendant or the other defendants in the partition suit, they would take the same and if some of the rooms allotted to one party be in the possession of another party those would be exchanged. By making this application the plaintiff wants to perpetuate his wrongful possession of the ground floor room, which otherwise the defendant might have succeeded in establishing in the City Civil Court through his counter-claim and got a decree in his favour. Mr. Lala. however, cited a decision of this Court in Rupendra Deb v. Ashrumati Debi reported in : AIR1951Cal286 . This was also an application for transfer of a suit filed in the Subordinate Judge's Court at Jalpaiguri to this Court under Clause (13) of the Letters Patent. The learned Judge observed that the High Court has a very wide discretion under Clause 13 of the Letters Patent for removal of suits from courts subordinate to it to itself. The discretion of the Court however, should be very carefully and judiciously exercised. The case will not be removed only because it involves difficult questions of law and fact. The plaintiff having choice of forum have chosen one forum and the case will not be subsequently removed on the application of the plaintiff on the ground of convenience when the defendant has taken part m the proceedings. Interest of justice means promotion or advancement of the cause of justice. Justice should not only be done but should manifestly and undoubtedly seem to be done. Grounds advanced by the learned Counsel in support of the application were discussed by the learned Judge, which were : (1) convenience of parties, (ii) convenience of witnesses, (iii) convenience of Counsel, (iv) convenience as to production of documents, (v) length of hearing and (vi) costs. The suit filed in the City Court by the plaintiff is a suit for declaration that the plaintiff is in exclusive possession of one room on the ground floor by the side of the courtyard (more fully described in the schedule to the plaint filed in the City Civil Court) and for permanent injunction restraining the defendant, his men and agents from interfering with the plaintiffs exclusive possession in respect of the said one room. A similar claim to the said room has also been made by the defendant in this written statement by way of counterclaim. Therefore, what the City Civil Court has to decide is that who is in lawful possession of the said room or who had been m lawful possession of the said room and has since been ousted therefrom. The plaintiff has filed the suit in this Court for partition of the very same premises in respect of one ground floor room whereof he has filed the suit in the City Civil Court. In the partition suit the court will determine the shares of the co-sharers and direct partition of the property by metes and bounds and if it is found that the property cannot be suitably or conveniently partitioned amongst the various co-sharers the Court may also direct the sale of the property. In the partition suit the Court will not decide who is in possession of which room or if any of the parties are in possession of any of the rooms, whether the possession of such party is lawful or otherwise. The partition suit in this court has nothing to do with the possession of a party of a particular room or particular rooms in the property in suit. Therefore, there is no question or any possibility of conflict of decisions in the two suits which might prejudice any of the parties. So far as balance of convenience is concerned there would be no question of inconvenience in fighting out the two suits one in the City Civil Court and the other in this Court Some of the documents in both these suits might be same but that would be really no consideration or for such inconvenience if any, for that purpose only the City Civil Court suit should be transferred to this Court. The witnesses who might have to give evidence in the City Civil Court may also conveniently give evidence in this Court. There would be no difficulty. So far as convenience of counsel is concerned the same set of counsel may appear in both the suits. So far as length of hearing is concerned, the length of hearing would be more or less the same whether the suit is tried in this Court or in the City Civil Court. So far as costs are concerned it depends on the parties, what they want to spend on the lawyers. Since there are two suits, to the extent there is multiplicity but no more which is also of the plaintiff s own doing. Because this Court would be an Appellate Court from any decree or order of the City Civil Court, that I don't think would be a ground for transfer of the suit to this Court from the City Civil Court. If the parties are diligent a suit can be disposed of as expeditiously in the City Civil Court as it may in this Court. The principles for transfer of a suit from a lower court to this Court, be it under Section 24 of the Code of Civil Procedure or under Clause 13 of the Letters Patent, as laid down by the several decisions cited by Mr. Bose are unexceptionable. But the question is do those principles apply in this case. As I have already discussed, in my view, those principles are not applicable in this case although this Court might have wide powers and wide discretion in the matter of transfer of a suit under Clause 13 of the Letters Patent but such powers have to be exercised for the purposes of justice and in a judicial manner, not whimsically or capriciously.

3. For all the above reasons the petitioner cannot succeed in this application. The application is accordingly dismissed with costs. The interim order, passed by me, stands vacated. Let the order be drawn up expeditiously.

4. Mr. Bose prays for stay of operation of this order on the ground that he wants to prefer an appeal against the order. This order not being an appealable order the stay is refused.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //