BABU LAL Vs. RAJENDRA KUMAR

JUDGEMENT

(1.) THIS is a petition seeking transfer of a civil suit No. 22/1997 pending in the Court of learned Civil Judge (Senior Division) Jhalawar. In order to understand the nature of the petition it is necessary to mention some introductory facts. Those facts as recited in the petition are as under: (i) The plaintiff non-petitioner Rajendra Kumar (for short the plaintiff) instituted a suit on Dec. , 17, 1997 for eviction bearing No. 22/1997 for eviction of the premises in question and arrears of rent against the defendant petitioner Babulal (for short the defendant) in the court of Civil Judge (Senior Division) Jhalawar. The plaintiff averred in the plaint that the defendant is a tenant in the premises @ of Rs. 2500/- per month and committed default in making payment of rent. (ii) On March 3, 1998 Mohal Lal and others who are near relatives of defendant, filed a suit (bearing No. 4/98) for declaration and cancellation of sale deeds and rent note against the plaintiff and the defendant in the Court of District Judge Jhalawar with the averments that the property in question was purchased by Nand Lal, the father of the defendant by registered sale deed dated November 22, 1939 and Mohan Lal and other members of joint family inherited the said property belonging to Nand Lal. Thus the defendant had no right to sell the property to the plaintiff and the sale deed and rent note respectively executed by the defendant on March 2, 1996 and April 24, 1996 were null and void. (iii) An application for staying the suit for eviction till the decision of suit for declaration purported to have been filed u/sec. 10 CPC had already been dismissed. Thereafter the defendant moved application before the learned District Judge Jhalawar seeking transfer of suit for ejectment from the court of Civil Judge (Senior Division) to the Court of District Judge Jhalawar. Learned District Judge dismissed the application on March 24, 2000.

(2.) IN my considered opinion, an order passed by the District Judge u/s. 24 CPC is a decision of a `case' within the meaning of Sec. 115 CPC and is open to revision. Patna High Court in Dasrath Prasad Singh and another vs. Baijnath Prasad Singh (1), indicated that an order refusing to transfer a case is open to revision where having been passed on an erroneous view of the law if amounts to a refusal by the court to exercise the jurisdiction vested in it by law. But in Sheo Nandan Lal vs. Mangal Chand (2), learned Single Judge of Patna High Court observed that even though the District Judge has refused to exercise the power vested in him by law u/s. 24 CPC, the High Court has jurisdiction to act under this section. Besides the High Court has the general power of superintendence over all inferior courts and this power is not limited by any course taken by the District Judge. I therefore propose to examine this matter on its merits.

(3.) I have considered the matter from all angles and I am of the view that it would not be just and reasonable to transfer the suit for eviction pending in the court of Civil Judge (Senior Division ). If transfer is made it would cause inconvenience to plaintiff Rajendra Kumar. He would loose his one right of appeal and it would cause prejudice to him. The defendant Babulal who himself is defendant alongwith Rajendra Kumar before the District Judge, cannot be permitted to plead the cause of the strangers Mohan Lal and others, in the garb of consolidation of two suits in respect of one property. I do not want to express my opinion in regard to intention of defendant Babulal behind filing the transfer petition, as it may affect the adjudication of civil suits but from over all view of the facts and circumstances I do not find it a fit case to issue any direction under Sec. 24 CPC. I am unable to pursuade myself to agree with the submissions advanced before me by Mr. N. K. Maloo, learned counsel.