DEENANATH Vs. SANTOSH KUMAR AND ANOTHER

JUDGEMENT

(1.) This review petition has been filed by the petitioner seeking review of the order dated 26.9.2016 passed in Civil Revision No.91/15 whereby this Court has maintained the order passed by the District Judge, Vidisha, in not exercising his authority under Sec. 24 of the Code of Civil Procedure by not transferring the case pending in the Court of Civil Judge Class I to the Court of Third Additional District Judge, Vidisha.

(2.) Brief facts leading to the present case are that respondent No.1 had filed a suit for permanent injunction claiming that suit land was purchased by him and he is in possession of the suit land, but defendant Deenanath, who is petitioner before this Court, is trying to interfere in his peaceful possession, and therefore, he be restrained from interfering in such peaceful possession. Defendant Deenanath filed written statement and along with the written statement a counter claim was filed which was returned by the concerned Civil Judge, Kurwai, under the provisions of Order 7, Rule 10 Civil Procedure Code holding that valuation of the counter claim, which was for the purpose of cancellation of sale-deed executed in favour of plaintiff Santosh Kumar, was beyond the pecuniary jurisdiction of the Civil Judge, and therefore, that suit was instituted in the Court of 3rd Additional District Judge, Vidisha. It is the contention of the petitioner before the Court that if both the suits have not been tried simultaneously injustice would be caused to him, and therefore, he moved an application under Sec. 24 Civil Procedure Code for transfer of the case. It was also submitted by the present petitioner that in fact he had taken certain loan from the moneylender and that moneylender had forced the petitioner to allow registration of the sale-deed in the name of plaintiff Santosh Kumar till the payment of loan amount and thereafter there was an assurance that land shall be registered in the name of defendant/present petitioner. Learned District Judge, Vidisha, held that the counter claim filed by Deenanath is based on a Benami transaction and he is not a party to the sale-deed which was executed in favour of the plaintiff. It has also come on record that the learned trial Court had issued order of temporary injunction in favour of the plaintiff as he was found to be in possession of the suit land. In view of the aforesaid and considering all these aspects, the impugned order was passed when petitioner did not appear even in the second round and also when there was no communication from the side of the petitioner for his non-appearance.

(3.) Learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Rajesh Vs. Nagar Palika, Ratlam as reported in 2002(II) MPWN 66 wherein it has been held that if two suits of same nature and same parties are there, then suit pending in the Court of Civil Judge should be transferred to the Court of ADJ with direction to dispose of both separately but on the same day. In the present case, facts are different inasmuch as the subject matter of the two suits as has been discussed by the learned District Judge is different. The plaintiff is the lawful owner of the suit property and is in possession of the suit property, whereas defendant/petitioner is claiming cancellation of said sale-deed on the basis of a Benami transaction.