NAURATANMAL ASHOK KUMAR Vs. YANGZILLA BHUTIANI

JUDGEMENT

(1.) This is an application under Section 24 of the Code of Civil Procedure filed by the defendants, petitioners herein, for transfer of a case being Civil Suit No. 1 of 2003 from the Court of the District Judge (Special Division-II) to the Court of the District Judge (East & North), Gangtok by contending inter alia, that initially the plaintiff, the opposite party herein, instituted a suit being Civil Suit No. 2 of 2003 against the present petitioners as defendants in the Court of the District Judge (East & North), Gangtok for a decree of eviction and recovery of possession of the suit premises and for also recovery of arrear rents, mesne profits and other reliefs and during the pendency of the said suit, the defendants/petitioners filed an application under Section 10 read with Section 151 of the Code of Civil Procedure on 11th March 2003 in the Court of the District Judge (East & North), Gangtok for a stay of the proceedings of the said Civil Suit No.2 of 2003 till the final disposal of a case being Review Application No. 1 of 2002 which arose against a related order passed in Civil Suit No.7 of 2001, which was also instituted against the present petitioners for identical relief. But, in the meantime, under a related administrative order dated 12th March 2003 of this Court, 8 (eight) cases including the Civil Suit No. 2 of 2003 were transferred from the Court of the District & Sessions Judge (East & North) to the Court of the District & Sessions Judge (Special Division-I) and, thereafter, on the motion of the District Judge (Special Division-I) pertaining to his inability to try the suit as he appeared against the defendant No.2 before this Court on the same subject matter while he was a practicing lawyer, the suit was transferred by this Court, by an administrative order dated 17th April 2003 to the Court of the District Judge (Special Division-II) and the suit was renumbered as Civil Suit No.1 of 2003 of the said Court. It is also the case of the petitioners that one Smt. Ajey Bhutiani also instituted Civil Suit No.7 of 2001 against the defendant No. I/petitioner and another family member of the defendant/petitioner o.2 for eviction of them from the suit premises, but the said suit was withdrawn on the prayer of the plaintiff with liberty to file a fresh suit vide Order dated 24th January 2002 and against that Order of 24th January 2002, the defendant/petitioner No.2 herein filed an application on 19th February 2002 for review of the said Order dated 24th January 2002 in the Court of the District Judge (East & North), Gangtok and the same is still pending for disposal in the said Court. According to the petitioners, they did not get any opportunity to point out that for identical relief as sought for by one Smt. Azey Bhutiani in the previous litigation is pending in the Court of the District Judge (East & North), Gangtok and for the ends of justice and for proper adjudication, both litigations should be heard by the same Court, i.e. the Court of the District Judge (East & North), Gangtok. These are the main grounds as mentioned above with which the petitioners sought for transfer of the case from the Court of the District Judge (Special Division-II) to the Court of the District Judge (East & North), Gangtok.

(2.) Mr. S K. Home Choudhury, learned counsel, contended that the Civil Suit No.1 of 2003 exclusively falls within the ambit of the special Act, namely, the Gangtok Rent Control and Eviction Act,. 1956 (hereinafter referred to as the Act of 1956) and that being the position, such suit has to be adjudicated by the Court specified under Section 4 of the Act. According to Mr. Home Choudhury, learned senior counsel, the original lowest Court is the Civil Judge's Court and the District Judge (East & North) is the competent Court having jurisdiction to try the Civil Suit No.l of 2003 in terms of the provisions of the Act of 1956. Learned senior counsel further contended that the Court of the District Judge (East & North), Gangtok is the re-designate Court as specified in the Section 4 of the Act and as such, the said Court has jurisdiction to try the said suit as the cause of action of the suit arose within the territorial jurisdiction of the said Court and not in the Court of the District Judge (Special Division-H). Supporting his contention Mr. Home Choudhury, learned senior counsel has drawn my attention to the provisions of law laid down in Section 3(12) of the Sikkim Interpretation and General Clauses Act, 1977, in short Act of 1977; the related notification dated 17th November, 1973 issued by the Secretary to the Chogyal of Sikkim, Gangtok; the related decision of this Court rendered in Sagarmull Agarwala u. Union of India reported in 1979 Sikkim Law Journal (Page 59 relevant page 63) and also Government notification dated 19th July, 1994 and further contended that as the Court of District Judge (Special Division-H) has no territorial jurisdiction, any order or decree passed in the related cases cannot be executed and the same shall be void ab-initio and apart trom that, it would be for the ends of justice and proper adjudication of the litigation between the parties, the Civil Suit No.l of 2003 may be heard and disposed of by the District Judge (East & North), Gangtok where the said Review Application No.l of 2002 is pending. It was also argued by the learned senior counsel that the same cause of action arose in both the Civil Suit No. 1 of 2003 and Review Application No.1 of 2002 and that being the position, these cases should be heard by the same court, i.e. the District Judge (East & North), Gangtok. These are the points and grounds raised by the petitioners for transfer of the Civil Suit No.1 of 2003 pending in the court of District Judge (Special Divison-II) to the Court of District Judge (East & North), Gangtok.

(3.) At the hearing, Mr. T.B. Thapa, learned counsel for the respondent/plaintiff submitted that the High Court of Sikkim under an administrative Order being No. 374/JUDL/HCS dated 12th March 2003 as Annexure-P2 to the transfer petition made a general transfer of cases numbering eight including the present case, i.e. the Civil Suit No. 2 of 2003 (renumbered as Civil Suit No.1 of 2003) initially from the Court of the District Judge (East & North), Gangtok to the Court of District Judge (Special Divison-I) for hearing and disposal. But the District Judge (Special Divison-I) was not inclined to hear/try the said Civil Suit No.2 of 2003 (later on renumbered as Civil Suit No.1 of 2003) as he had appeared against the defendant No.2, Shri Sampat Lal Bucha, petitioner No.2 herein before this Court in respect of the same subject matter and accordingly, by an administrative order bearing No.32/JUDL/ HCS dated 17th April 2003, the case has been transferred to the Court of the District Judge (Special Division-II) and thereafter, the District Judge (Special Division-II) took up the case and the defendant Nos. 1 and 2, i.e. the present petitioners filed their joint written statement in connection with the Civil Suit No.1 of 2003 in the Court of the District Judge (Special Division-II) and apart from that, the application under Section 10 of the Code of Civil Procedure for stay of the further proceedings of the suit was heard by the District Judge (Special Division-II). But the said petition under Section 10 of the Code of Civil, Procedure was rejected by the learned District Judge (Special Division-II) vide order dated 29th May 2003 and the case was fixed on 16th June 2003 for framing of issues and filing of documents, but in the meantime, the defendants filed the present transfer petition without any justification. According to Mr. Thapa, learned x Consel, the present transfer petition was filed by the petitioners/defendants for causing delay of the proceedings of the Civil Suit No.1 of 2003 and, the Review Application No.1 of 2002 has no relevancy with the present Civil Suit No.l of 2003 and, the original Civil Suit No.7 of 2001 was filed by one Shri Azey Bhutiani as against the present petitioner No. 1 and another which has been withdrawn by the said plaintiff with a leave to file a fresh suit and against that the order of withdrawal dated 24th January 2002, the present petitioner No.2 filed the said Review Application No.1 of 2002. It was also argued by Mr. Thapa, learned counsel that the High Court in its administrative capacity has ample discretionary power to transfer the case from one Court to another competent Court to try the case in the light of the existing facts and circumstances of the case and any decree or order passed by the transferee Court is executable as the same is valid in the eye of law. Mr. Thapa, learned counsel further argued that there is no sufficient material on record for transferring the said case from the Court of the District Judge (Special Division-II) to the Court of the District Judge (East & North), Gangtok at this stage and as such this present petition deserves to be rejected.