GOPAL BASU ROY Vs. MOLLY BOSE

JUDGEMENT

(1.) The present challenge is directed against an order whereby, on the application of the plaintiff/opposite party, a suit was transferred to a court having higher pecuniary jurisdiction, with a rider that the same would be taken up from the stage which it had reached in the transferor court. Apparently, a point was taken by the defendant/petitioner at the argument stage that the suit had been filed in a court, which did not have sufficient pecuniary jurisdiction to take up the same. In consonance with such objection, the plaintiff/opposite party took out an application for such transfer, on which the impugned order was passed.

(2.) Learned counsel for the defendant/ petitioner argues, by placing reliance on a judgment reported at (2006) 1 SCC 364, (Harshad Chimanlal Modi (II) vs. DLF Universal Ltd. and Anr.), that in the event a court does not have jurisdiction to take up a suit, in the event of transfer, the trial has to be started from the stage of presentation of the plaint in the transferee court.

(3.) Learned counsel for the petitioner further cites a judgment, reported at (2011) 15 SCC 222 (Neha Arun Jugadar and Anr. Vs. Palak Diwan Ji), which was a case under Sec. 25 of the Code of Civil Procedure. In the said judgment, the Supreme Court held that an order of transfer of a case can be passed where both the courts, namely the transferor court as well as the transferee court, have jurisdiction to hear the case and the party seeking transfer of the case alleges that the transferee court would be more convenient because the witnesses are available there or for some other reason it would be convenient for the parties to have the case heard by the transferee court. There is no question, it was held, of transfer of a case, which has been filed in a court which has no jurisdiction at all to hear it.