Allowed

Edara Krishna Rajan v. Edara Mounika

Andhra Pradesh HC10 Jan 2024TRCMP/189/2023

Case brief

AI extract

What is this about?

The court transferred two partition suits involving the same parties and overlapping properties from different districts to a single court to avoid conflicting judgments and ensure convenience. Both suits were transferred to the Additional District Court, Tenali, to be tried jointly.

What did the court decide?

O.S.No.256 of 2018 and O.S.No.106 of 2022 transferred to Additional District Court, Tenali, to be clubbed and tried together.

Edara Krishna Rajan Vs Edara Mounika — Partition | Andhra Pradesh HC (2024)

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HON’BLE SRI JUSTICE BANDARU SYAMSUNDER TRANSFER CIVIL MISCELLANEOUS

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PETITION NO.189 OF 2023

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ORDER:

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I have heard learned counsel for the petitioner

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Mr.Y.N.Anjaneyacharyulu as well as learned counsel for Respondent

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No.1 Mr.Ancha Pandu Ranga Rao and learned counsel for Respondent Nos.2 and 3 Mr.K.Muni Reddy Bala Prasad.

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2. This petition is filed by the petitioner under Section 24 of the Code of Civil Procedure (in short “C.P.C”), seeking transfer of O.S.No.256 of 2018 on the file of Additional Senior Civil Judge‟s Court, Tenali, Guntur District to VII-Additional District & Sessions Court (FTC) Vijayawada, Krishna District, to club and try the suit along with O.S.No.106 of 2022.

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3. The case of the petitioner who is General Power of Attorney Holder of the petitioner in brief is that, Respondent No.1 filed O.S.No.256 of 2018 before the Additional Senior Civil Judge‟s Court, Tenali of Guntur District against the petitioner and Respondent Nos.2 to 6, seeking relief of preliminary decree of partition in respect of the

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plaint schedule properties into 64 equal shares and to allot five such shares to Respondent No.1/Plaintiff, four such shares out of sixty four shares to Respondent No.2/Defendant No.1, 24 such shares each to petitioner and Respondent No.3/Defendant Nos.2 and 3 and five such shares out of sixty four shares to Respondent Nos.4 to 6/Defendant Nos.4 to 6 out of sixty four shares by metes and bounds with separate possession along with future profits and costs of the suit. The petitioner submits that O.S.No.256 of 2018, on the file of Additional Senior Civil Judge‟s Court, Tenali, is coming up for crossexamination of Pw.1. It is the contention of the petitioner that, after filing of O.S.No.256 of 2018 on 13-09-2022 he filed O.S.No.106 of 2022 on the file of VII-Additional District Court (FTC), Vijayawada, Krishna District against Respondent Nos.1 to 6 seeking relief of partition of plaint schedule properties mentioned in the said suit and to allot 5/12^th share in each item to him by metes and bounds and put him in separate possession. It is also the contention of the petitioner that, plaint schedule properties shown in O.S.No.256 of 2018 also shown in O.S.No.106 of 2022 which is a comprehensive suit filed by him seeking for partition are one and the same. He

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further submits that, when contention of both parties are similar if they are tried by two different Courts there is possibility of conflicting judgments and to avoid conflicting judgments, it is essential to transfer O.S.No.256 of 2018 from Additional Senior Civil Judge‟s Court, Tenali to VII-Additional District Court (FTC), Vijayawada to try along with O.S.No.106 of 2022. He prays to allow the petition.

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4. The Respondent No.1 filed counter-affidavit, stating that she filed O.S.No.256 of 2018 on the file of Additional Senior Civil Judge‟s Court, Tenali, Guntur District, against petitioner and Respondent Nos.2 to 6, seeking partition of plaint schedule Item Nos.1 to 3 of the properties as properties are situated in Tenali within the territorial jurisdiction of Senior Civil Judge‟s Court, Tenali. She submits that four years after she filed the suit, petitioner who is also a resident of Tenali filed O.S.No.106 of 2022 on 06-09-2022 on the file of VIIAdditional District Court (FTC), Vijayawada, through GPA Holder, seeking relief of partition in respect of plaint schedule properties showing 20 items wherein 19 items are immovable properties and another property is movable property. She submits that 17 immovable properties out of 19 immovable properties are situated in

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Tenali of Guntur District, however, Item No.11 of plaint schedule property in O.S.No.106 of 2022 alone is situated at Vijayawada of Krishna Judicial District and another Item No.16 is situated in Markapuram of Prakasam District.

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5. It is also the contention of Respondent No.1 that instead of filing the suit at Tenali of Guntur District, as majority of the properties are situated within the jurisdiction of Tenali, petitioner chosen to file separate suit before Additional District Court, Vijayawada. She submits that as petitioner not filed suit before Additional District Court, Tenali and chosen to file suit before Additional District Court, Vijayawada, she prays to dismiss the petition.

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6. The learned counsel for the petitioner would submit that at the first instance, Respondent No.1 filed O.S.No.256 of 2018 on the file of Additional Senior Civil Judge‟s Court, Tenali of Guntur District, wherein petitioner filed written statement and contesting the suit. He would further submit that, petitioner filed comprehensive suit in O.S.No.106 of 2022 on the file of VII-Additional District Court, Vijayawada showing all properties which are not shown by

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Respondent No.1 in previous suit, and suit filed by him is a comprehensive suit. It is the contention of the learned counsel for the petitioner that Item Nos.1 to 3 properties shown in O.S.No.256 of 2018 are also shown as Item Nos.1 to 10 in O.S.No.106 of 2022 and contention of both parties in both suits are similar due to that to avoid conflicting judgments, both suits have to be disposed of by the same Court. He prays to allow the petition.

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7. The learned counsel for Respondent No.1 would submit that out of twenty (20) properties shown in the plaint schedule in O.S.No.106 of 2022, seventeen (17) properties are situated within the jurisdiction of Additional District Court, Tenali, but only Item No.11 in O.S.No.106 of 2022 is situated at Vijayawada. He would further submit that, petitioner instead of filing the suit before Additional District Court, Tenali, chosen to file suit at Vijayawada only to cause inconvenience to Respondent No.1. It is the contention of the learned counsel for Respondent No.1 that, he has no objection for transferring O.S.No.106 of 2022 and also O.S.No.256 of 2018 to Additional District Court, Tenali, as most of the properties are

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situated within the jurisdiction of Additional District Court, Tenali. He

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prays to pass necessary orders.

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8. Now the point that emerges for consideration of this Court is:-

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“Whether there are any grounds to transfer O.S.No.256 of 2018 on the file of Additional Senior Civil Judge’s Court, Tenali to VII-Additional District Court (FTC), Vijayawada, Krishna District to try along with O.S.No.106 of 2022 or as requested by the learned counsel for Respondent No.1, O.S.No.256 of 2018 on the file of Additional Senior Civil Judge’s Court, Tenali and O.S.No.106 of 2022 on the file of VII-Additional District Court (FTC), Vijayawada can be transferred to Additional District Court, Tenali of Guntur District ?”

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9. POINT:-

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Before going to the merits of the case, it would be beneficial to

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quote Section 24 of Code of Civil Procedure which reads as under:-

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“ 24. General Power of transfer and withdrawl:-

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(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—

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(a) transfer any suit, appeal 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

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(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and—

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(i) try or dispose of the same; or

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(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

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(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

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(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.

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[(3) For the purpose of this Section,—

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(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

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(b) “proceeding” includes a proceeding for the execution of a decree or order.]

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(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.

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[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]”

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10. This Court in Dr.Reddy’s Laboratories Ltd., Hyderabad

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Vs. Pulletikurthi Varaha Chandra Bose and Others¹ held which

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reads as under:

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“Necessity for transfer of suits from one Court to another, would arise if only there exists any similarity of causes of action or commonality of parties. When such situation does not exist, the relief claimed for transfer of the suit, cannot be granted.”

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11. The Hon‟ble Apex Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and

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Others² held which reads as follows:

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“Section 24 C.P.C. confers comprehensive power on the Court to transfer suits, appeals or other proceedings “at any stage” either on an application by any party or suo motu. Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection.

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It is true that normally while making an order of transfer, the Court may not enter into merits of the matter as it may affect

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1 (2004) 5 ALT 209

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2 (2008) 3 SCC 659

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the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must reflect application of mind by the Court and the circumstances which weighed in taking the action. Powers under Section 24 C.P.C. cannot be exercised ipse dixit in the manner in which it has been done in the present case”.

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12. It is also held by the Hon‟ble Apex Court that the following

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factors have to be taken into consideration in a situation in which it is the duty of the Court to transfer the case.

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i) balance of convenience or inconvenience to the plaintiff or defendant or witnesses;

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ii) convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit;

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iii) issues raised by the parties;

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iv) reasonable apprehension in the mind of the litigant that he might not get justice in the Court in which the suit is pending;

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v) important questions of law involved or a considerable section of public interested in the litigation;

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vi) “interest of justice” demanding for transfer of suit, appeal or other proceeding, etc.

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13. The Hon‟ble Apex Court observed that the above guidelines are

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illustrative but not substantive guidelines. The Hon‟ble Apex Court in Kulwinder case referred supra held that, „when the property is one and the same, the Court may exercise its inherent discretion to avoid conflicting judgments and convenience of the parties is one of the considerations to exercise power under Section 24 CPC”.

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14. In the present case, a perusal of copy of O.S.No.256 of 2018 on the file of Additional Senior Civil Judge‟s Court, Tenali, which shows that, Respondent No.1 filed suit against the petitioner and Respondent Nos.2 to 6 for partition showing three items in the plaint schedule which are admittedly situated within the territorial jurisdiction of Senior Civil Judge‟s Court, Tenali. A perusal of plaint in O.S.No.106 of 2022 on the file of VII-Additional District Court, Vijayawada, filed by the petitioner herein through his G.P.A Holder, seeking for partition, wherein Item Nos.1 to 10 properties are similar to the plaint schedule properties shown in O.S.No.256 of 2018. As rightly pointed out by the learned counsel for Respondent No.1 that, out of twenty (20) properties shown in the plaint schedule in O.S.No.106 of 2022, seventeen (17) properties are situated within

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the jurisdiction of Additional District Court, Tenali, one (01) property is situated within the jurisdiction of Additional District Court, Markapur, Item No.11 property is situated within the jurisdiction of Additional District Court, Vijayawada and Item No.20 is movable property. The General Power of Attorney Holder, who filed this petition and also O.S.No.106 of 2022 and Respondent Nos.2 to 6 are also residents of Tenali, as per the cause title shown in petition. Respondent No.1 is resident of Hyderabad of Telangana State. When most of the properties are situated within the jurisdiction of Additional District Court, Tenali and both suits are between the same parties seeking similar relief in respect of same properties which have to be disposed of by same Court to avoid conflicting judgments. As rightly contended by the learned counsel for the petitioner, as most of the properties shown in O.S.No.106 of 2022 on the file of VIIAdditional District Court, Vijayawada, are admittedly situated within the jurisdiction of Additional District Court, Tenali and as already O.S.No.256 of 2018 filed by the Respondent No.1 before Additional Senior Civil Judge‟s Court, Tenali, it is desirable by invoking discretionary power vested in this Court under Section 24 of C.P.C. to

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transfer both suits to Additional District Court, Tenali, instead of transferring O.S.No.256 of 2018 to VII-Additional District Court, Vijayawada to try the suit along with O.S.No.106 of 2022.

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15. In the result, this petition is disposed of by withdrawing O.S.No.256 of 2018 on the file of Additional Senior Civil Judge‟s Court, Tenali of Guntur District and O.S.No.106 of 2022 on the file of VII-Additional District Court, Vijayawada, Krishna District and both suits are transferred to Additional District Court, Tenali at Guntur District. The learned Additional Senior Civil Judge, Tenali, shall transmit the case records in O.S.No.256 of 2018 to Additional District Court, Tenali, duly indexed as expeditiously as possible within a period of two weeks from the date of receipt of orders of this Court in the present petition.

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16. The learned VII-Additional District Judge, Vijayawada, Krishna District, shall transmit the case records in O.S.No.106 of 2022 to Additional District Court, Tenali, duly indexed as expeditiously as possible within a period of two weeks from the date of receipt of orders of this Court in the present petition.

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17. The learned Additional District Judge, Tenali, shall club O.S.No.256 of 2018 and O.S.No.106 of 2022 and dispose of both cases by recording common evidence.

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18. The Respondent No.1 who is plaintiff in O.S.No.256 of 2018 shall proceed to adduce evidence at the first instance and thereafter the defendants in O.S.No.256 of 2018 and petitioner herein who is plaintiff in O.S.No.106 of 2022 shall be permitted to adduce evidence on his behalf. No order as to costs.

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19. Consequently, all pending miscellaneous petitions, if any, shall stand closed. The interim orders granted earlier, if any, shall stand vacated.

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__________________________ JUSTICE BANDARU SYAMSUNDER

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Date :11-01-2024. KLNS

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