D S KANAGARATHINAM Vs. DAMODARAN

JUDGEMENT

(1.) THE petitioner herein has filed these Transfer Civil Miscellaneous Petitions praying for issuance of an order by this Court to withdraw A.S.No.187 of 2005 and A.S.No.328 of 2005 pending on the file of the learned Additional District Judge, Fast Track Court NO.V and III, Chennai respectively and to hear the said appeals along with C.R.P(NPD) No.2012 of 2005 pending on the file of this Court.

(2.) THE learned counsel for the petitioner submits that the petitioner has filed C.R.P.(NPD) NO.2012 of 2005 against the Judgment and decree of the learned V Assistant Judge, City Civil Court, Chennai in O.S.No.6312 of 1993 and that the said suit was tried along with other two suits viz., O.S.No.5151 of 1992 and O.S.No.678 of 1996,the suit filed by him against the respondents and in O.S.No.5151 of 1992, the relief was sought for not only against the respondent in C.R.P(NPD) No.2012 of 2005 as also his brother one Venkatesan for permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the property measuring 35 cents in S.NO.276/1 and situate at Old No.13A,New No.55, Rajamangalam 1st street, Villivakkam, Chennai-49 and that one Damodaran viz., the respondent herein has filed O.S.No.6312 of 1993 as per Section 6 of the Specific Relief Act and further that O.S.No.678 of 1996 has been filed by the petitioner herein for declaration that the decree in O.S.No.3669 of 1986 on the basis of which the respondent is claiming his right which is not binding upon the petitioner and inasmuch as the respective cases filed by the parties cemented on same facts, same oral and documentary evidence and since O.S.No.5151 of 1992 and O.S.No.6312 of 1996 were pending before the same viz., V Assistant Judge, City Civil Court, Chennai, the petitioner filed a petition for transferring O.S.No.678 of 1996 from the file of VII Assistant Judge, City Civil Court, Chennai to the V Assistant Judge, City Civil Court, Chennai and accordingly, O.S.No.678 of 1996 has been transferred to the file of V Assistant Judge, City Civil Court, Chennai and all the three suits has come up to V Assistant Judge, City Civil Court, Chennai wherein three suits were tried together and evidence has been recorded in O.S.No.5151 of 1992 and a common Judgment has been delivered on 30.8.2004 and in order to avoid any possible conflicting Judgments by different Courts on the same issues and also in order to avoid unnecessary wastage of time and expenses and in the interest of justice, the petition for transfer may not be allowed by this Court in withdrawing A.S.No.187 of 2005 pending on the file of Additional District Judge, Fast Track Court-V, Chennai and A.S.No.328 of 2005 pending on the file of the Additional District Judge, Fast Track Court -III, Chennai and to hear the appeals along with the C.R.P.(NPD) No.2012 of 2005 pending on the file of this Court.

(3.) THE learned counsel for the petitioner contends that the right of a party to an appeal is always subject to the right of the High Court to transfer it under Section 24 of CPC and support of his contention, relies upon the decision reported in Sajudei v. Rampati Kunwari(AIR 1960 Allahabad 503) wherein it is inter alia observed that' the provision that the High Court can transfer a case to a competent Court means only this that the Court must be competent at the time when the transfer is ordered and not that it must have been competent for some time previously or that it was competent to hear it when it was instituted. THEre is no warrant for restricting the power of the High Court in this manner. Further in the aforesaid decision at paragraph 11, it is observed that ' the present appeal is valued at Rs.6,000/- ie., only a little more than the maximum valuation for an appeal to be filed in the District Judge's Court under the old law and is not likely to be disposed of by this Court in less time than the District Judge would take in disposing of it. We consider it fit to be transferred'.