KANAK SRIVASTAVA Vs. PRABHA KANT SRIVASTAVA & OTHERS

JUDGEMENT

(1.) Heard Shri Akhilesh Kalara, learned counsel for the applicant and Shri Nirankar Singh, learned counsel for opposite parties.

(2.) This is an application for transfer of petition under Sec. 24 of the Code of Civil Procedure seeking transfer of Regular Suit No. 803 of 2005 pending in the court of A.C.M.M. IV, Kanpur Nagar to any competent court at Lucknow.

(3.) It has been contended by Shri Kalara that the suit for partition being Regular Suit No. 803 of 2005 was filed by the opposite party No. 1 in respect of two properties. One property is situated at Kanpur Nagar while the other is situated at Lucknow. It is further submitted that under Sec. 16 of the Code of Civil Procedure the suit in respect of immovable property is instituted where the subject matter situates. Sec. 17 of the Code provides that where the suit to obtain relief in respect of immovable property situates within the jurisdiction of different courts, the suit may be instituted in any court within the local limit of whose jurisdiction any portion of the property situates. Since the property which is the subject matter of the aforesaid partition suit is partly situated at Kanpur Nagar and partly at Lucknow, therefore, the opposite party No. 1 had discretion to file the suit either at Kanpur Nagar or at Lucknow. He as per his own choice filed the suit at Kanpur Nagar. The ground for transfer of the case taken by the applicant is that the opposite party No. 1, namely, Prabha Kant Srivastava resides in U.S.A. and he has given power of attorney to Shri Vinay Tiwari Advocate who is conducting this case on behalf of opposite party No. 1. He, since his appearance is conducting the case as if the case is his own case and tries to prejudice the mind of the Presiding Officer treating it as his personal case. Shri Vinay Tiwari is a practicing lawyer at Kanpur. He as attorney holder preferred a writ petition before the Allahabad High Court being Writ Petition No. 1130 of 2010 to expedite the proceeding of regular suit which was disposed on 8.12.2010 and an order for expeditious disposal of the case was passed.