GARGI DUTTA Vs. SUBRATA KUMAR BISWAS

JUDGEMENT

(1.) CAN 8006 of 2019 is an application for amendment of CO 2095 of 2019 filed by the petitioner praying for amendment of the prayer portion of the application by inserting the words "or to the learned Civil Judge (Senior Division), 3rd Court at Barasat, North 24 Parganas".

(2.) I have perused the application for transfer of Title Suit No.129 of 2010 (Title Suit No.4481 of 2014) and the present application for amendment.

(3.) The proposed amendment is formal in nature. Therefore, it is allowed. Let the instant application being CAN 8006 of 2019 be treated as part of CO 2095 of 2019. CO 2095 of 2019 is listed for hearing. Added defendant No.3 of Title Suit No.129 of 2010, renumbered as Title Suit No.4481 of 2014 is the petitioner seeking transfer of the said suit to either the Court of the learned Civil Judge (Junior Division), 2nd Court at Barakpur or to the Court of the learned Civil Judge (Senior Division), 3rd Court at Barasat in the District of North 24 Parganas, on the ground, stating, inter alia, that the opposite party No.1 as plaintiff filed the above numbered suit in the 1st Court of the learned Civil Judge (Senior Division) for permanent injunction restraining the defendant No.1 to make any construction in collusion with the defendants by encroaching the 'B' schedule property and by causing disturbance or hindrance in the peaceful enjoyment of plaintiffs easement right over the said 'B' schedule property and/or from doing any mischievous act over the said 'B' schedule property. After filing of the suit, upon an application filed by the plaintiff, an ad interim order of injunction was passed directing the parties to maintain status quo in respect of the suit property. During the pendency of the suit the defendant No.1 transferred his right, title and interest over the suit property in favour of the present petitioner by virtue of a deed of sale dtd. 19/2/2016. After purchasing the said property, the petitioner was added in the said suit as defendant No.3. He has been contesting the suit by filing a separate written statement challenging the maintainability and jurisdiction of the Court to try the suit. According to the petitioner the suit property is situated under Belgharia Police Station within Kamarhati Municipality. The said locality is within the territorial jurisdiction of the learned Civil Judge (Junior Division), 4th Court at Sealdah. The petitioner came to know that territorial jurisdiction of the learned Civil Judge (Junior Division), 4th Court at Sealdah has been transferred to the learned Civil Judge (Junior Division), 2nd Court at Barrackpore. The said Court is having pecuniary jurisdiction up to Rs.60,000.00. The suit filed by the opposite party No.1 is valued at Rs.31,000.00. Therefore, the said suit is triable by the learned Civil Judge (Junior Division), 2nd Court at Barrackpore and the Court where the suit is pending at present has no territorial jurisdiction to try the suit. Therefore, the petitioner has prayed for transfer of the said suit to the Court of the learned Civil Judge (Junior Division), 2nd Court at Barrackpore. It is further contended by the petitioner that since both the parties to the suit reside within the jurisdiction of Belghoria Police Station Barrackpore is nearer to Belgharia than Barasat Court. In paragraph-10 of the application the petitioner further alleged that the said suit was fixed for recording evidence of PW1 on 1/10/2018. PW1 submitted his evidence on affidavit under Order 18 Rule 4 of the Code of Civil Procedure annexing some documents including a photostat copy of the alleged purchase deed of PW1, but in course of evidence the said PW1 exhibited one certified copy of the purchase deed without serving copy of the said deed upon the learned Advocate for the defendant No.3. Subsequently, at the time of cross-examination of PW1 it was revealed that the certified copy of the said sale deed was filed by the plaintiff without swearing any affidavit. The learned trial judge failed to consider that the certified copy of the said sale deed which was marked Exhibit-1 does not tally with the photostat copy of the deed. Such discrepancy was noticed during trial of the suit. Therefore, the petitioner apprehends that trial of the suit will not be properly conducted by the learned Civil Judge (Senior Division), 1st Court at Barasat. Therefore, the petitioner has prayed for transferring the said suit either to the Court of the learned Civil Judge (Junior Division), 2nd Court at Barrackore or the learned Civil Judge (Senior Division), 3rd Court at Barasat.