DHANU JOBY Vs. JOBY CHERIYAN AND ORS.

JUDGEMENT

(1.) This matter is placed before the Division Bench on a reference by a learned single Judge, doubting the correctness of the decision reported as Preeti Yohannan v/s. Abraham K. Mathen ( : 2012 (3) KLT 111) and posing the question as to whether the provisions of the Civil Rules of Practice should govern proceedings before this Court. The learned Judge has also raised an issue as to whether any fetter can be imposed on the powers of the High Court, while exercising its supervisory jurisdiction under Art. 227 of the Constitution of India. The transfer petition was filed by the wife of the first respondent. Matrimonial disputes between them had led to the institution of five different proceedings before the Family Courts of Ernakulam and Kottarakkara, raising allegations and counter allegations. A single transfer petition was filed by the wife before this Court invoking S. 24 of the Code of Civil Procedure, for short, 'CPC, requesting for transfer of two cases pending before the Family Court, Ernakulam to the Family Court, Kottarakkara, to facilitate joint trial of all the cases. Registry raised an objection that separate application shall be filed in each proceeding on which transfer was sought in view of Rule 57(3) of the Civil Rules of Practice and relying on Preeti Yohannan (supra) which held so. Hence, the matter was placed before the learned single Judge, who took the view that the decision in Preeti Yohannan (supra) requires reconsideration and that the Civil Rules of Practice may not be applicable to the proceedings before this Court, in so far as the Rules of the High Court of Kerala, 1971, 'High Court Rules', for short, do not contemplate such a situation. The learned single Judge formulated the question as to whether it is justifiable to hold that separate petitions for transfer of more than one petition pending before Family Court should be filed in terms of R. 57 of Civil Rules of Practice and that a single petition cannot be entertained. Ancillary question posed in the Reference Order is whether this Court would be justified in following the corresponding Rules in the Civil Rules of Practice in the absence of any provision to that effect in the High Court Rules. Another question raised is whether any fetter by way of rules of procedure could be imposed on the power of High Court while exercising its supervisory jurisdiction under Art. 227 of the Constitution of India.

(2.) Shri P.B. Krishnan, learned counsel for the petitioner canvassed the position that the ratio of Preeti Yohannan needs reconsideration as it puts fetters on the power of the High Court by holding that Civil Rules of Practice would govern the supervisory jurisdiction of the High Court; and that, the said proposition cannot be accepted. Preeti Yohannan was decided holding that in the absence of any specific provision in the High Court Rules regarding the procedure to be followed in cases of transfer of proceedings, Civil Rules of Practice, which govern the proceedings of the civil courts would govern the field. The reasoning was that since the power of transfer under S. 24 of C.P.C. was exercised not only by the District Court, but also by the High Court, it would be anomalous to permit a consolidated petition to be moved in the High Court, when separate petitions are insisted in the District Court.

(3.) The preamble to the Civil Rules of Practice unambiguously indicates that it is intended to regulate the procedure and practice in the subordinate civil courts. There cannot be any doubt that the Civil Rules of Practice is applicable only to the subordinate civil courts and not to the High Court, which, regarding its procedure and practice, is governed by the Kerala High Court Act and Rules.