Dismissed

Santhakumari v. Vivek K. Rahul

Kerala HC24 Nov 2016Tr.P(C)/303/2016

Case brief

AI extract

What is this about?

Transfer petition filed under Section 24 CPC to move a suit for recovery of advance amount from Sub Court, Thrissur to Sub Court, Ernakulam based on cause of action and property location. The High Court dismissed the petition, holding that the question of the original court's jurisdiction must be raised as a preliminary issue in the lower court, not in a transfer petition.

What did the court decide?

Transfer petition dismissed; suit remains pending before Sub Court, Thrissur.

Santhakumari Vs Vivek K. Rahul — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938

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Tr.P(C).No. 303 of 2016

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OS 90/2016 OF SUB COURT,THRISSUR

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PETITIONER(S)/DEFENDANT:

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SHANTHAKUMARI, AGED 62 YEARS, W/O.RAVEENDRANATH, HOUSE NO.42/2472, SREEHARI, VENNALA P.O., COCHIN-682028.

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BY ADV. SRI.K.B.DAYAL

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RESPONDENT(S)/PLAINTIFF: ------------------------

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VIVEK K. RAHUL, AGED 31 YEARS, S/O.K.B.RAHULAN, KUNDUVARA VALAPPIL HOUSE, SAWMILL ROAD, KOORKANCHERRY P.O., THRISSUR-680007.

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BY ADVS. SRI.M.P.HARIKUMAR SMT.P.SREESHA SRI.A.P.VASAVAN

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THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Tr.P(C).No. 303 of 2016

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APPENDIX

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PETITIONER(S)' ANNEXURES

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A1 TRUE COPY OF THE JUDGMENT IN WPC.1625/16 OF THIS HON'BLE COURT DATED 21/1/6

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A2 TRUE COPY OF OS.90/16 PENDING BEFORE THE LEARNED SUB COURT, THRISSUR, DATED 23/3/16.

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RESPONDENT(S)' ANNEXURES

NIL.

/ TRUE COPY /

P.S. TO JUDGE

K.RAMAKRISHNAN, J.

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Tr.P.(C) No.303 of 2016

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Dated this the 24^th day of November, 2016

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ORDER

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This petition has been filed by the petitioner seeking transfer of O.S.90/2016 pending before the Sub Court, Thrissur to Sub Court, Ernakulam under Section 24 of the Code of Civil Procedure.

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It is alleged in the petition that the petitioner is the defendant in Ext.P2 suit O.S.90/216 pending before the Sub Court, Thrissur filed by the respondent herein. The suit was one filed by the respondent for recovery of Rs.55 lacks with interest from the petitioner alleging failure of performance of an agreement to sale dated 08.11.2014. It is alleged in the plaint that the petitioner entered into an agreement on 18.11.2014 with the respondent agreeing to sell a landed properties which scheduled in the plaint for a total consideration of Rs.5.80 crores. The property is situated in survey No.42/272 to 42/2476 situated in Edappally south village in Ernakulam District. According to the petitioner, the agreement was also executed from the house of the plaintiff. In fact no part of the cause of action is arising within the jurisdiction of Thrissur Court and the suit has been filed before Thrissur Court only to harass the petitioner, when she obtained an order. When 'SARFEASI' proceedings were initiated by the HDFC bank against the petitioner and her husband, in respect of the

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Tr.P.(C) No.303 of 2016

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same property and the amount paid as advance was remitted to the bank to avoid the taking over OF the property by the bank with the consent of the respondent. She is finding it difficult to go to Thrissur to conduct the case on account of her illness. So she prayed for transfer of the case to Sub Court, Ernakulam.

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Heard Sri.S.Sudheeshkumar, counsel appearing for the petitioner and Sri.N.P.Harikumar, counsel appearing for the respondent.

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Counsel for the petitioner submitted that, since the property is situated within the jurisdiction of Ernakulam Sub Court, the suit itself is not maintainable before the Sub Court, Thrissur. So no hardship will be caused, even if the case is transferred to this court. No cause of action has arisen within the jurisdiction of Thrissur Court.

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The application was opposed by the counsel for the respondent on the ground that Thrissur court has no jurisdiction to entertain the case.

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It is an admitted fact that there was an agreement of sale between the parties and the respondent herein filed O.S.90/2016 before the Sub Court, Thrissur for recovery of the advance amount said to have been paid pursuant to the said agreement. Seeking a charge over the property which was agreed to be sold. According to the petitioner the property is situated within the jurisdiction of Sub

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Tr.P.(C) No.303 of 2016

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Court, Ernakulam namely Edappilly south village and the agreement was executed between the parties from her house and no part of cause of action arisen within the jurisdiction of Thrissur Court. But according to the respondents the cause of action is arisen within the jurisdiction of Thrissur Court and that was the reason why the suit has been filed there. The question of jurisdiction has to be considered by the court which the case is now pending. The petitioner is got a case that Thrissur Sub Court has no jurisdiction to entertain the suit and she can raise the same as a preliminary issue and certain issue has been raised that can be considered by that court and pass appropriate orders in that application.

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This court while considering the transfer petition is not expected to go into that question as that has to be considered by the trial court. The petitioner can be represented through counsel there. So that her presence on all days before the court is also not required. So under such circumstances, this court feels that it is not necessary to transfer the case to Sub Court, Ernakulam as requested for in the petition. The petition is dismissed with the above observation.

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In the result the petition is dismissed.

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Registry is directed to communicate this order to the court below at the earliest.

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Sd/- (K. Ramakrishnan, Judge)

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Santhakumari v. Vivek K. Rahul

Case brief

What is this about?

What did the court decide?

Santhakumari v. Vivek K. Rahul

Case brief

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