J V BHAVE Vs. UNION OF INDIA

JUDGEMENT

(1.) This application under Article 228 of the Constitution of India read with Section 24 of the Code of Civil Procedure (hereinafter referred to as 'the Code') is filed by the sole petitioner who is the sole plaintiff in the court below, for transferring Title Suit No. 43 of 1970 pending before Shri S. K. Prasad, Additional Subordinate Judge, Second Court. Dhanbad, to this Court, on the ground that the constitutionality and validity of Section 80 of the Code would be required to be decided in the said suit.

(2.) In order to appreciate the contention of learned counsel for the petitioner as well as of the opposite party, it will be necessary to state briefly some relevant facts. On the 13th of March, 1970 the petitioner instituted the said title suit impleading opposite party Nos. 1 to 4 as defendants. In the said suit the petitioner sought relief for declaration that he was entitled to be promoted to the post of Deputy Coal Mines Welfare Commissioner on which post opposite party No. 4 was promoted. The petitioner also prayed for injunction restraining opposite party Nos. 1 to 3 from giving effect to their order and restraining opposite party No. 4 from joining the said post. On the same date when the suit was instituted the learned Subordinate Judge granted ad interim injunction as prayed by the plaintiff-petitioner and restrained the opposite party.

(3.) On the 31st of March, 1970, opposite Party No. 4 appeared and filed show cause and prayed for early date for hearing the injunction matter. On the 16th April, 1970, opposite party Nos. 1 to 3 also filed their show cause. The Court below fixed 23rd of April, 1970 for hearing the injunction matter. However, it was heard on various dates, viz., 24-4-1970, 25-4-1970, 1-5-1970, 2-5-1970 and 6-5-1970. Further hearing of the injunction matter was fixed on 9-5-1970 on which date the petitioner filed a petition informing the court that he had filed an application under Section 24 of the Code before the District Judge for the transfer of the suit from his Court to some other court, which gave rise to a miscellaneous case. After hearing counsel for the parties, the case was transferred to the court of Shri S. K. Prasad, Additional Subordinate Judge, Second Court, Dhan-bad. The next date in the suit was 14-8-1970. On that date the plaintiff-petitioner filed an application for adjournment which was allowed and the case was adjourned to 25-8-1970. On 26-8-1970 the petitioner filed an application under Section 113 of the Code before the said Subordinate Judge. On 16-9-1970 opposite party Nos. 1 to 3 filed a petition before the court below under Order VII, Rule 11 of the Code for rejecting the plaint of the petitioner on the ground that notice under Section 80 of the Code was not served. The court granted time till 18-9-1970 to the petitioner to file rejoinder tq the application, if required. The petitioner filed a rejoinder to the effect that he had already filed an application under Section 113 of the Code before the court for referring the matter to the High Court. The trial court ordered that the petition filed by opposite party Nos. 1 to 3 would be heard along with the injunction matter. Thereafter the petitioner has filed the present application on 17-12-1970 in this Court.