DAVINA TAYLOR PHILIPPS Vs. MUSTHAFA

JUDGEMENT

(1.) This writ petition is filed against the common order of dismissal of OP (TP) Nos. 169, 170 and 171/07. All these applications were filed to transfer OS 135/04, 272/03 and 47/05 pending before the I Addl. Subordinate Judge, Thiruvananthapuram to the Subordinate Court, Neyyattinkara under S.24 CPC. All these suits are filed by the petitioner against the defendants for damages for malicious prosecution of the petitioner. It is submitted that the cause of action for the suit had arisen within the jurisdiction of the Subordinate Judge, Neyyattinkara and the suit should have been instituted there. The petitioner's counsel would contend that S.24(5) CPC gives power to the Court to transfer a suit or proceedings under S.24 from a Court which has no jurisdiction to try it. The learned counsel would contend that substantial injury will be caused to the client if the Court orders return of plaint under O.7 R.10A for the reason if the Court finds that the plaint is to be returned under O.7 R.10A CPC the Court in which it is to be instituted will get jurisdiction and the cause of action only from the date of representation and if it is construed in this case the plaintiff will be without any remedy as the claim will be barred by limitation.

(2.) The learned District Judge considered the decisions cited before him such as AIR 1990 Rajasthan 87 and AIR 1986 Allahabad etc. wherein it has been held that the Court where the suit is pending can be transferred by the District Judge or the High Court. The learned Judge held that it is discretionary and not mandatory and after considering the factum of limitation felt that the said discretionary jurisdiction should not be exercised in favour of the plaintiff and therefore declined to allow the Transfer Petitions.

(3.) When a suit is instituted the Court has to always see whether the party has come to the Court in the right time. Filing of a suit in a Court which is not having jurisdiction may not be always on account of the fault of the parties, may be on account of the mistake in understanding about the jurisdictional aspect. Nobody will venture to file a suit for damages by paying Court fee in a Court which has no jurisdiction to try it at all. Therefore when an application for transfer under S.24(5) CPC is considered I feel discretionary aspect has to be considered taking into account the bona fides of the party as well. The defendant in the suit certainly would have raised the contention of lack of jurisdiction and when a suit is instituted in a wrong Court the Court should be aware of the fact that if it is not disposed of within the time limit from which the limitation will start running one cannot blame the party totally for the same. So I feel this is a case where the party has approached the Court. It is true the party should have been very vigilant but at the same time one cannot attribute gross negligence or grave misconduct on him. When he has realized that the Court wherein the case is pending would not have any territorial jurisdiction. In order to save his suit he had come before the Court under S.24(5) CPC. Therefore, in order to meet the ends of justice it is always necessary to use the discretion in that manner. It is true that if it is technically applied and the judicial discretion is not exercised then the other party will get unfair advantage for the reason that the claim of the plaintiff will be lost by limitation. Therefore taking into consideration the entire facts and circumstances of the case and the fact that the plaintiff has knocked at the doors of a Court (though a wrong Court), is entitled to get the benefit under S.24(5) CPC. Therefore, I set aside the order of the learned District Judge allow the CRP and direct the Subordinate Judge, Thiruvananthapuram to transfer OS 272/03, 135/04 and 47/05 pending before the I Addl. Subordinate Judge, Thiruvananthapuram to Subordinate Judge, Neyyattinkara.