GOPALDAS Vs. DIST JUDGE INDORE

JUDGEMENT

(1.) The petitioner-tenant aggrieved of the order (Annexure I) dt. 20-1-89 passed by the District Judge, Indore, on an application under Ss.24 and 151 of the Code of Civil Procedure, whereby Civil Suit No.83-A of 1987 was ordered to be transferred from the Court of 7th Civil Judge Class-II, Indore to the Court of the Rent Controlling Authority, Indore (hereinafter referred to as 'the Authority'), has preferred this petition under Arts.226 and 227 of the Constitution of India.

(2.) The material facts leading to this petition are that respondent No.3, a widow, filed an application on 24-6-85 before the Authority under S.23-A(b) of the Madhya Pradesh Accommodation Control Act, 1961 (hereinafter referred to as "the Act"), for getting eviction against the petitioner-tenant for the accommodation let for non-residential purpose as the same is required 'bona fide' by respondent No.3 for the purpose of starting business by herself and her major son. On summons, the petitioner applied under S.23-C of the Act for obtaining leave to defend, which was granted to the petitioner. The petitioner filed an application challenging the jurisdiction of the Rent Controlling Authority. The Authority, after hearing the parties, passed an order dt. 14-8-87 holding that the requirement of the landlady is not urgent under S.23(3) of the Act and ordered transfer of the case to the Civil Court as the Authority had no jurisdiction to try and entertain the application. Accordingly, the suit was transferred to the Court of the 7th Civil Judge, Class-II, Indore, which was registered as Civil Suit No.83-A of 1987. In between, the landlady, aggrieved of the order dated 14-8-87 passed by the Authority, preferred a revision under S.23-E of the Act before this Court. Vide Order Annex. E dated 31-8-87 passed in Civil Revision No.269 of 1987, this Court set aside the order of the Authority and remitted the case to the Authority for disposal according to law. After this order, the learned Civil Judge, instead of transferring the matter to the Authority or directing the plaintiff to seek appropriate steps for transfer of the suit to the Authority, dismissed the suit holding that in view of the order of this Court in revision, the suit cannot proceed in the Civil Court. Hence, the suit was dismissed as the Civil Court has no power or authority to transfer the same to the Authority. The landlady preferred an application under S.24 read with S.151 of the Code of Civil Procedure for transfer of the case to the Authority. That application was opposed by the petitioner. The learned District Judge allowed the application and ordered that as the order of the Civil Judge is a nullity in view of the order of the High Court, the Civil Court was having no jurisdiction to pass any order dismissing the suit and the appropriate course, at worst, was to return the plaint for presentation in the proper Court or to sent the record of the case to the Court of District Judge for being returned to the Authority. Hence, the District Judge allowed the application and the record of the case, which was pending before the Civil Court in view of the order of this Court, was ordered to be returned to the Authority through the office of the District Judge. It is this order, which has been challenged by the petitioner in this petition under Article 227 of the Constitution of India.

(3.) Shri R.G. Waghmare, learned Counsel for the petitioner, made an assiduous effort to convince this Court for admission of the petition and for exercising the supervisory jurisdiction under Art.227 of the Constitution contending that when the suit was dismissed by the Civil Judge, no suit or proceeding was pending before the Civil Judge. Hence, power under S.24, C.P.C. for transfer of the case from the office of the District Judge to the Court of the Authority could not have been exercised, after the dismissal of the suit, the proper remedy was to file an appeal and to get the dismissal of the suit set aside and then only the suit could have been transferred from the Civil Court to the Authority. The District Judge has transgressed his jurisdiction while exercising the powers under Sec. 24, C.P.C., thus, the impugned order deserves to be quashed. Learned Counsel placed reliance on a case of the Division Bench of this Court in Kikabhai v. Mt. Safia Bi, AIR 1937 Nag 381, and a Division Bench case of the Allahabad High Court in Mathura Prasad v. Ramcharanlal, AIR 1915 All 2.