ORDER
1. This is an application under Section 23 (3) of the Civil Procedure Code for transfer of O.S. No. 79/65 on the file of the District Munsiff Court, Eluru to the District Munsiff’s Court, salem for joint trial with O.S. No. 1059/65.
2. The respondents firm filed O.S. No. 79/65 in the District Munsiff’s Court, Eluru against the petitioners ” firm to recover a sum of Rs. 2,040-60 Ps., with subsequent interest alleging that the amount claimed in the suit represents the balance due towards the price of 226 bags of red gram supplied by it to the petitioners firm. The petitioners firm filed its written statement dated 28th June 1965. It inter alia pleaded that the red gram sent by the respondent was inferior in quality and was not in accordance with the contracted quantity either. Therefore, after giving notice to the respondent on 25-3-65, it sold the goods as belonging to the respondent on 18-4-1965 in open auction at Salem, Consequent to the sale the petitioner became entitled to a sum of Rs. 4,592-43P. towards the balance due after deducting the amount realised on sale from the amount paid to the respondent and the expenses incurred therefrom. The petitioner firm also stated in its statement that it would file a separate suit to recover that balance. Thereupon issues also were settled on 7th July 1965. Subsequently on 8th January 1966 the issues are also recast. Thereafter on 23rd September 1965 the petitioner filed O.S. No. 1059/85 in the District Munsiff’s Court, salem against the respondent to recover the sum of Rs. 4,592-43Ps., which represents the balance due as stated above. The respondent also filed its written statement in O.S. No. 1059/65. The pleas and contentions of the parties in O.S. No. 1059/65 are similar to those in O.S. No. 79/65. The issues are not yet settled in O.S. No. 1059/65. The petitioner has filed the present application to transfer O.S. No. 79/65 from the Eluru Court to the Salem Court.
3. Several objections are raised for the respondent to this transfer and joint trial. It is contended that Sections 23 and 24 of the Civil Procedure Code provide only for transfer of suits in appropriate cases and do not empower the Court to direct joint trial. It is next contended that unlike in an application under Section 24 C.P.C. the present application which is under Sections 22 and 23 C.P.C., could be filed only after notice to the other parties and since there was no such notice given to the respondent before the filing of this application this transfer application is liable to be summarily rejected. It is also contended that any application for transfer under Sections 22 and 23 C.P.C. could be filed only before or at the settlement of the issues in the suit that is sought to be transferred and as the present application has been filed after the settlement of issues it should be rejected. A further objection as to the jurisdiction of this Court is also raised. The jurisdiction conferred on this Court under Section 23 (3) C.P.C. is strictly confined to the local limits of this High Court and according to the contention of the learned counsel for the respondent the local limits in respect of the High Court of Andhra Pradesh are not more than the City of Hyderabad. Apart from these, objections as to the merits of the transfer application also are raised.
4. I will first deal with the objection as to the delay in filing the application, i.e., subsequent to the settlement of the issues. According to the learned counsel for the respondent the delay is fatal. This transfer application was filed on 14th June 1966 while the issues in O.S. No. 79/65 were settled on 7-7-1965 and were recast on 8th January 1966. There is thus no doubt that this application for transfer has been filed after the settlement of the issues in the suit which is sought to be transferred. Section 23 of the Civil Procedure Code is to be read with Section 22 C.P.C. While Section 22 C.P.C. deals with the power to transfer suits which may be instituted in more than one Court Section 23 C.P.C. lays down the details as in what Court the application under Section 22 C.P.C. can be made. This position is not disputed before me by the learned counsel for the petitioner. Therefore, the question is whether the present application for transfer satisfies the requirements of Section 22 C.P.C. One of those requirements is that the defendant may at earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply for transfer. Section 22 C.P.C. not only requires that the application for transfer should be filed at the earliest possible opportunity but also provides for the outer limit of time before which such application can be filed. That outer limit of time is ‘at or before the settlement of issues’ in the suit. The language of Section 22 clearly prescribes the time limit as ‘at or before the settlement of issues’. The learned counsel for the petitioner, however, argues that the words ‘at such settlement’ also mean ‘after settlement of issues’.
He argues that if that meaning is not given to the words ‘at such settlement’ it would become incompatible with the provisions of Section 23 C.P.C. I am not persuaded to accept this contention. In my view ‘at or before such settlement’ when read with the requirement that the application should be filed at the earliest possible opportunity can mean only that the application shall be filed either before the settlement of issues or simultaneously with the settlement of issues. The language of Section 22 C.P.C. does not warrant any interpretation of the word ‘at’ to mean and include also ‘after’. The learned counsel for the petitioner is not able to place any decision before me in support of his interpretation and contention. The learned counsel for the respondent also states that he is not able to get any authority on this aspect of the matter. He has, however, placed before me a decision of the Allahabad High Court in Rajnath v. Vidya Ram. which says as follows:–
“The ground mentioned in the application is covered by Section 22 C.P.C. The section however lays down two conditions in which such an application may be made, first that the application should be made at the earliest possible opportunity and in any case at or before the settlement of issues and second that it should be made after notice to the other party. These conditions were not complied with by the applicant.
. . . . .”
Ultimately the application was rejected as not maintainable on the ground that the provisions of Section 22 were not complied with. In the present application also the requirement that the application should be filed ‘at the earliest possible opportunity at or before the settlement of Issues’ is not satisfied and, therefore, this application is not maintainable.
5. In this view it is not necessary to consider the other objections raised for the respondent. In the result, the application is dismissed. No order as to costs.
