IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.03.2010 CORAM THE HON'BLE MS. JUSTICE R.MALA Tr.Appln.No.199 of 2010 in C.S.No.1116 of 2008 ORDER
The applicant/plaintiff has filed this Transfer application to withdraw and transfer O.S.No.4015 of 2009 filed by the respondents/defendants as against the applicant/plaintiff, on the file of the III Assistant City Civil Court, Chennai, to be tried along with the present suit in C.S.No.1116 of 2008 pending before this Court.
2. The averments in the application are as follows:
(a) The applicant/plaintiff filed the suit in C.S.No.1116 of 2008 for recovery of possession, mandatory injunction and for damages for use and occupation of the suit property. The first respondent/first defendant executed a sale deed in favour of the plaintiff on 29.8.2008 and agreed to deliver the vacant possession within a short period and gave a letter of undertaking on 29.8.2008. At the time of execution of sale deed, the property was subject to mortgage in favour of the second respondent/second defendant. So, the applicant/plaintiff informed the first respondent/first defendant that the first defendant should discharge the mortgage and retrieve all the documents and handed over the actual vacant possession of the property.
(b) After the date of registration of the property, the first respondent/first defendant sent a legal notice dated 2.9.2008 making false and incorrect statement about the entire sale transaction and suitable reply has been given by the applicant for the same. Even though the first defendant undertook to deliver the property within short time, but he has not delivered the possession of the property, which has necessitated the applicant/plaintiff to file the suit for recovery of possession, damages for use and occupation and also for mandatory injunction. On 26.3.2009, the applicant paid the entire amounts due. He was put in possession of the property except a small extent in the ground floor, which is in occupation of the first respondent/first defendant.
(c) After the filing of the suit, the first respondent/first defendant entered appearance and he also filed O.S.No.4015 of 2009 before the III Assistant City Civil Court, Chennai, seeking for permanent injunction as against the applicant/plaintiff from interfering with his peaceful possession and enjoyment of the property.
(d) Concealing the initiation of the proceedings by the applicant before this Court, the first respondent/first defendant herein has filed O.S.No.4015 of 2009 and the subject matter of the property is one and the same and the parties to the proceedings are one and the same, and the suit in O.S.No.4015 of 2009 filed by the first respondent/first defendant, is liable to be stayed under Section 10 of the Civil Procedure Code. To avoid multiplicity of proceedings and to avoid conflict of decisions by two competent Courts in respect of the very same subject matter, the applicant herein was advised to withdraw O.S.No.4015 of 2009 for trying the same along with the present suit in C.S.No.1116 of 2008 which is pending before this Court.
(e) If both the suits are tried jointly, no prejudice or hardship or inconvenience would be caused to any one, much less, the first respondent herein. Hence, the applicant/plaintiff has filed this Transfer Application for withdrawal and transfer of O.S.No.4015 of 2009 pending on the file of the III Assistant City Civil Court, Chennai, to be tried along with the present suit in C.S.No.1116 of 2008.
3. The gist and essence of the counter affidavit filed by the first respondent/first defendant, are as follows:
(a) The first respondent/first defendant’s father Balaraman purchased the property and he constructed in the year 1965 and he constructed the superstructure and he executed the settlement deed in favour of him under the registered settlement deed dated 18.2.2005 and till then, he is in possession and enjoyment of the same without any hindrance.
(b) The applicant tried to deprive his property lesser than the mortgage price prevailing in the area by illegal and unlawful means with the help of his henchmen through men and muscle power. The applicant’s paternal uncle is an existing ruling party M.L.A., and with the help of Police, the applicant is attempting to knock away and grab the entire property by giving harassment and mental agony with the assistance of the ruling party jurisdiction M.L.A.
(c) The first respondent filed O.S.No.4015 of 2009 on 25.5.2009 and the issues were framed in it and is in the part-heard stage and the suit is going on. P.W.1 was cross-examined on 19.11.2009 and since 19.11.2009, the City Civil Court has given seven adjournments for further cross examination of P.W.1. He has not cross examined P.W.1 and he is dragging on the case by getting adjournments. Now, the applicant has come forward with the present Transfer Application and the reasons for transfer of the suit, are not correct. Hence, the first respondent prayed for dismissal of the Transfer Application.
4. Learned counsel for the applicant/plaintiff would submit that the applicant/plaintiff filed C.S.No.1116 of 2008 for recovery of possession on the basis of the sale deed and also for mandatory injunction and also for damages for use and occupation of the property. It is stated that the applicant/plaintiff has even discharged the liability due to the second respondent/second defendant-Bank. After receipt of the summons in C.S.No.1116 of 2008, the first respondent/first defendant filed O.S.No.4015 of 2009 before the City Civil Court for permanent injunction. Since the applicant/plaintiff and the first respondent/first defendant are one and the same in O.S.No.4015 of 2009 and the suit property is also one and the same, only to avoid multiplicity of proceedings, the applicant herein prays for transfer of O.S.No.4015 of 2009 pending before the City Civil Court, to this Court, for joint trial along with the present suit in C.S.No.1116 of 2008. Hence, the applicant/plaintiff prayed for allowing this Transfer Application.
5. Learned counsel for the first respondent/first defendant would contend that it is true that the first respondent filed the suit in O.s.No.4015 of 2009 before the City Civil Court for permanent injunction, that P.W.1 is in the box and portion of cross examination of P.W.1 was over, but the applicant herein has not completed the cross examination of P.W.1 and he has been seeking for adjournments and the present Transfer Application has been belatedly filed. Hence, the first respondent herein prayed for dismissal of the Transfer Application.
6. At this juncture, learned counsel for the applicant/plaintiff relied on Clause 13 of the Letters Patent of the Madras High Court, which reads as follows:
“Clause 13: Extraordinary original civil jurisdiction.– And We do further ordain that the said High Court of Judicature at Madras shall have power to remove, and to try and determine, as a Court of Extraordinary Original Jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Madras, subject to its superintendence when the said High Court shall think proper to do so, either on the agreement of the parties to that effect, or for purposes of justice, the reasons for so doing being recorded on the proceedings of the said High Court.”
7. Learned counsel for the applicant/plaintiff also relied upon Section 24 of the Civil Procedure Code, which reads as follows:
“Section 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 stage–
(a) transfer any suit, 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) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where 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 withdrawn.
(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) “proceeding” includes 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. Relying on Section 24 of the C.P.C. and Clause 13 of the Letters Patent and also the decision of a Division Bench of this Court reported in 1992 (1) L.W. 429 (Angudu Narasimhalu Chettiar and four others Vs. T.V.Selvarajan and six others), learned counsel for the applicant/plaintiff submitted that the suit before the Civil Civil Court may be withdrawn and transferred to this Court and a joint trial of both the suits may be ordered.
9. In the present case, it is seen that only after the applicant/plaintiff has filed the present suit in C.S.No.1116 of 2008, the first respondent herein has filed O.S.No.4015 of 2009 before the City Civil Court for permanent injunction against the applicant herein.
10. Considering the averments in the pleadings in both the said suits, that the plaintiff and the defendant in both the suits are one and the same, that the subject matter of the suit and the property in both the suits, are one and the same, and that the present suit in C.S.No.1116 of 2008 is a comprehensive suit, it is appropriate that there shall be a joint trial of both the suits.
11. Considering the said decision of the Division Bench of this Court as well as Clause 13 of the Letters Patent and Section 24 of the C.P.C., that the parties are one and the same and the subject matter of both the suits is one and the same and that the present suit is for delivery of possession and the suit filed before the City Civil Court is for permanent injunction, and even though P.W.1 was cross-examined in part and even though the said suit was filed before the City Civil Court only after the filing of the present suit before this Court for recovery of possession, no prejudice would be caused to both the parties, if the suit before the City Civil Court in O.S.No.4015 of 2009 is withdrawn and transferred to this Court for joint trial along with C.S.No.1116 of 2008 pending before this Court. One more adding factor for transfer is that multiplicity of proceedings and conflict of decisions, could be avoided.
12. In the abovesaid facts and circumstances, I am of the considered view that the Transfer Application is liable to be allowed. Accordingly:
(a) the Transfer Application is allowed.
(b) The suit in O.S.No.4015 of 2009 pending on the file of the III Assistant City Civil Court, Chennai, shall be withdrawn and transferred to this Court, for joint trial along with C.S.No.1116 of 2008, pending before this court.
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