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Case Number

C.M.W.P No. 6799 of 2007

Attorney(S)

Sri Arun Kumar Gupta
Advocate
for Petitioner
SC
for Respondents

Judges

Rakesh Tiwari, J.

Acts

SECTION 372 SUCCESSION ACT
provisions of Order IV-A of C.P.C
Order IV-A and section 24
section 24, C.P.C
section 10, C.P.C

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Smart Summary

Summary of the Legal Opinion

Factual and Procedural Background

This writ petition challenges the District Judge, Lalitpur's order dated 26.10.2006. The factual background in the record is as follows. Late Sri Jhaggey Ram allegedly executed a registered Will deed on 17.11.2001 (variously referenced in the record) by which he purportedly gave rights in agricultural land and bank deposits to the petitioners, who are his grandchildren. Sri Jhaggey Ram died on 6.12.2001. On the basis of that Will the petitioners instituted Succession Case No. 34 of 2002 (Amardeep v. Sohan Lal) under section 372 of the Succession Act in the Court of Civil Judge (Senior Division), Lalitpur. Respondent No. 3 (son of the deceased) filed Suit No. 76 of 2002 in the Court of Civil Judge (Junior Division), Lalitpur, seeking cancellation of the registered Will.

Respondent No. 3 moved an application under section 24 of the Code of Civil Procedure (C.P.C.) read with Order IV-A of the C.P.C., which was registered as Misc. Case No. 18 of 2006 before the District Judge, Lalitpur. By the impugned order dated 26.10.2006 the District Judge recalled Case No. 76 of 2002 from the Court of Civil Judge (Junior Division) and transferred it to the Court of Civil Judge (Senior Division), Lalitpur, where Succession Case No. 34 of 2002 was pending. The petitioners challenge that transfer by this writ petition.

Legal Issues Presented

Whether the District Judge, by order dated 26.10.2006, lawfully exercised powers under section 24 of the C.P.C. to recall and transfer Suit No. 76 of 2002 from the Civil Judge (Junior Division) to the Civil Judge (Senior Division), Lalitpur.
Whether permitting transfer or directing joint consideration under Order IV-A of the C.P.C. is permissible where the two proceedings lie before Courts of different pecuniary jurisdiction (Civil Judge, Junior Division v. Civil Judge, Senior Division), and whether the transfer improperly amounted to consolidation in contravention of Order IV-A.
Whether the District Judge exceeded jurisdiction or acted mechanically, without recording reasons, in allowing the transfer.

Arguments of the Parties

Petitioners' Arguments

The petitioners contended that the District Judge's order of 26.10.2006 was against the provisions of Order IV-A of the C.P.C. because the pecuniary jurisdictions of the Civil Judge (Junior Division) and the Civil Judge (Senior Division) differ and, therefore, the two cases could not be consolidated or jointly tried.
It was submitted that the District Judge allowed the application mechanically and without recording any reasons, relying on surmises and conjectures, thereby exceeding his jurisdiction.
The petitioners argued that Section 24 of the C.P.C. does not permit the superior Court to transfer a case from one subordinate Court to another for the purpose of consolidation where the Courts are distinct in pecuniary jurisdiction; they characterized the District Judge's assumption of jurisdiction under Section 24 as illegal.
The petitioners relied on the prior rejection (order dated 13.1.2006) of respondent No. 3's application under section 10 C.P.C. in Case No. 34 of 2002 and noted that revision factually intervened; they argued that the two matters were different and should not be brought together.

Respondent No. 3's Arguments

In the plaint of Suit No. 76 of 2002 respondent No. 3 admitted that the Sub-Registrar personally visited the place and the Will was executed and verified before the Sub-Registrar; on that footing respondent No. 3 asserted that the Will was not forged and was a bona fide document, and therefore could not be cancelled.
Respondent No. 3 sought transfer under section 24 C.P.C. read with Order IV-A, and the application for transfer was allowed by the District Judge (registered as Misc. Case No. 18 of 2006).

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court heard counsel and examined the record, the impugned order and the statutory provisions invoked (Order IV-A and section 24 C.P.C.). The court's analysis proceeded along the following lines:

The court reproduced and considered the text of Order IV-A (consolidation of suits and proceedings) and section 24 of the C.P.C. (general power of transfer and withdrawal). The text of section 24 and its sub-sections was adverted to in extenso by the court.
The court addressed the petitioners' contention that the District Judge had no power to transfer Case No. 76 of 2002 from the Civil Judge (Junior Division) to the Civil Judge (Senior Division) because the pecuniary jurisdictions of the two Courts differ and therefore the cases could not be consolidated. The court emphasized that the District Judge had not consolidated the two cases; he had recalled and transferred Case No. 76 for decision by the Court where the related Succession Case No. 34 was pending.
The court observed that both parties' claims turn upon the execution or non-execution of the alleged Will deed and held that deciding the related matters in the same Court would promote uniformity and be in the interest of justice. On that factual and practical basis the District Judge's transfer was justified.
The court interpreted the expression "same Court" in Order IV-A. It rejected a narrow interpretation that would require the very same Judge to hear all related suits; instead the court adopted a wider meaning of "same Court" as the same civil court (not necessarily the same individual judge). The court reasoned that a restrictive construction would impede the effective dispensation of justice and could result in different Courts or judges deciding interrelated matters based on the same documents and facts, thereby defeating the object of Order IV-A.
Having construed Order IV-A broadly and having reviewed section 24 (which grants the District Court general power to transfer or withdraw suits and proceedings, on application or of its own motion), the court concluded that the District Judge lawfully exercised the powers under section 24 to recall and transfer Case No. 76 of 2002 to the Civil Judge (Senior Division) for decision in accordance with law.
The court expressly found no illegality or infirmity in the impugned order dated 26.10.2006 and rejected the petitioners' contention that the District Judge acted mechanically or without jurisdiction.

Holding and Implications

Holding: The writ petition is dismissed. The court held that the recall and transfer of Case No. 76 of 2002 from the Civil Judge (Junior Division), Lalitpur, to the Civil Judge (Senior Division), Lalitpur, by the District Judge by the order dated 26.10.2006 was lawful and did not suffer from illegality or infirmity. The opinion concludes: "Petition Dismissed." There was no order as to costs.

Implications:

The direct effect is that Suit No. 76 of 2002 (Sohan Lal v. Amar Deep) stands recalled and transferred to the Court of Civil Judge (Senior Division), Lalitpur, to be decided in accordance with law alongside Succession Case No. 34 of 2002 (Amar Deep v. Sohan Lal).
The court's reasoning interprets "same Court" in Order IV-A in a wider sense (same civil court rather than necessarily the same judge) to permit such arrangements where justice and uniformity of decision require it.
The opinion does not purport to establish any broader new doctrinal precedent beyond its application to the facts and statutory construction in this case; the immediate consequence is limited to the validation of the transfer and dismissal of the writ petition.

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Amardeep v. District Judge, Lalitpur

Rakesh Tiwari, J.:— Heard Counsel for the parties and perused the record.

2. This writ petition has been filed against the order dated 26.10.2006 passed by the District Judge, Lalitpur.

3. It appears that late Sri Jhaggey Ram son of late Sri Khinde Rajak executed a registered Will deed on 17.11.2001 through which it is claimed that he had given rights to the petitioners with regard to his agricultural land and the cash deposit in the State Bank of India, main branch, Lalitpur as well main branch of Punjab National Bank at Lalitpur. Sri Jhaggey Ram died on 6.12.2001 He was the grand father of the petitioners and father of respondent No. 3. It is stated that as the petitioners had looked after him in his last days out of affection the grand father Sri Jhaggey Lal had executed the aforesaid Will in favour of the petitioners.

4. It also appears from the record that on the basis of the aforesaid Will the petitioners filed Succession Case No. 34 of 2002, Amardeep v. Sohan Lal, under section 372 of the Succession Act. Respondent No. 3 also filed Suit No. 76 of 2002 in the Court of Civil Judge (Junior Division), Lalitpur for cancellation of the registered Will in question dated 27.11.2001 executed by late Sri Jhaggey Ram in favour of the petitioners.

5. From the record it further appears that respondent No. 3 moved application under section 24 of the C.P.C read with Order IV-A of the C.P.C, which was registered as Misc. Case No. 18 of 2006 in the Court of District Judge, Lalitpur.

6. The contention of the Counsel for the petitioners is that in Case No. 34 of 2002 which is pending before the Civil Judge (Senior Division), Lalitpur respondent No. 3 filed his objection and simultaneously had also moved an application under section 10 of the C.P.C for staying of the proceedings in that case which was rejected vide order dated 13.1.2006 The aforesaid order dated 13.1.2006 has been challenged in Revision No. 3 of 2006 before the District Judge, Lalitpur. The Court fixed 15.2.2006 as the next date. In that application respondent No. 3 had also stated that in Case No. 76 of 2002 the Civil Judge (Senior Division), Lalitpur had passed an order which has already been challenged in Revision No. 3 of 2006 and that the matter is pending before the Court of Additional District Judge (Dacoity Affected Area), Lalitpur in which 25.2.2006 was fixed as next date. The prayer was made that Case No. 76 of 2002 may be transferred to the Court of Civil Judge (Senior Division), Lalitpur where the matter of the petitioners regarding succession is pending so that both the case may be heard together.

7. It is urged that the aforesaid application for transfer of Case No. 76 of 2002 was heard by the District Judge, Lalitpur who vide order dated 26.10.2006 allowed the application without recording any reason transferring the case of respondent No. 3 i.e 76 of 2002 in the Court of Civil Judge (Senior Division), Lalitpur which is impugned in the present writ petition on the ground that it is against the provisions of Order IV-A of C.P.C as the nature of pecuniary jurisdiction of Civil Judge (Junior Division) and the Civil Judge (Senior Division) are different and both the cases are different and the same cannot be consolidated.

8. Order IV-A of C.P.C is as under:—

“Order IV-A: Consolidation of suits and proceedings:—When two or more suits or proceedings are pending in the same Court and the Court is of opinion that it is expedient in the interest, it may by order direct their joint trial, whereupon all such suits and proceedings may be decided upon evidence in all or any of such suits or proceedings.”

9. It is stated that in the plaint of Suit No. 76 of 2002 it has been admitted by respondent No. 3 that Sub-Registrar himself has visited the place and before him the Will was executed by late Sri Jhaggey Ram and in this way it is import of the statement made by respondent No. 3 that the Will executed and verified before the Sub Registrar and testator had also expressed his Will before the Sub Registrar. Thereafter, it was registered and as such the Will in question is not a forged document but is a bona fide one and according to Will and wishes of the testator it is submitted that the Will cannot be cancelled.

10. It is submitted that the District Judge has committed manifest error of law without recording any finding that both the matters are same and on the other hand has passed a mechanical impugned order dated 26.10.2006 on the basis of surmises and conjectures; that the District Judge has exceeded its jurisdiction by way of passing the impugned order dated 26.10.2006 which was not called for in the facts and circumstances of the case and that he has failed to exercise powers vested in him and has committed a manifest error of law by passing the impugned order dated 26.10.2006

11. It is next submitted that from perusal of the aforesaid Order IV-A of C.P.C it is abundantly clear that if there is multiplicity of the suits or proceedings, in the same Court then Court may consolidate all the cases and the Court itself can direct for joint trial; in the present case under section 24, C.P.C there is no such provision to transfer the case by the superior Court from two different Courts at one place and making order for consolidation of the suit and that the District Judge has committed manifest error of law by assuming jurisdiction illegally under section 24, C.P.C and passed an order dated 26.10.2006, which is totally illegal and bad in the eye of law.

12. The order of the Court below which is impugned in the present is as under:—

13. The contention of the Counsel for the petitioner that the Court below could not allow the application of respondent No. 3 as the pecuniary jurisdiction of both the Courts are different has no force as the Court did not have the power to consolidate the cases. Admittedly, Case No. 76 of 2002, Sohan Lal v. Amardeep, has been filed in the Court of Civil Judge (Junior Division) for cancellation of the alleged Will deed dated 24/27.11.2007 which according to the respondents was never executed as such according to respondent No. 3 in these circumstances, the petitioners were not entitled to grant of any Succession Certificate, hence they could not have filed Misc. Case No. 34 of 2002, Amar Deep v. Sohan Lal, before the Civil Judge (Senior Division) in which an application under section 10, C.P.C has been moved which has already been rejected.

14. From perusal of the impugned order of the Court below it is apparent that the Court below has held that it would be in the interest of justice in the aforesaid circumstances that both the cases are decided in the same Court. In my opinion, the claim of the petitioners as well as of respondent No. 3 is based upon execution or non-execution of the alleged Will deed and this stand to reason that case No. 76 of 2002, Sohan Lal v. Amar Deep, has been transferred to the Court of Civil Judge (Senior Division), Lalitpur where Case No. 34 of 2002, Amar Deep v. Sohan Lal, is pending so that uniformity is maintained.

15. In the circumstances, the District Judge, Lalitpur has therefore by the impugned order dated 26.10.2006 has rightly recalled Case No. 76 of 2002, Sohan Lal v. Amar Deep, from the Court of Civil Judge (Junior Division), Lalitpur and transferred the same to the Court of Civil Judge (Senior Division), Lalitpur for deciding in accordance with law. It is apparent from the impugned order that the aforesaid two cases have not been consolidated as has been urged by the Counsel for the petitioners who has conceded that the District Judge does not have power to transfer the case from one Court to another Court.

16. In this view of the matter the recall of the case from the Court of Civil Judge (Junior Division), Lalitpur and transferring the same to the Court of Civil Judge (Senior Division), Lalitpur for decision in accordance with law cannot be said to be suffer from any illegality.

17. As regards Order IV-A and section 24 of the C.P.C are concerned, it is apparent that section 24 provides for general power of transfer and withdrawal on the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard or of its own motion without such notice, the High Court or the District Court may at any stage. Section 24 of the Act is as under:—

“24. General power of transfer and withdrawal.—(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage:—

(a) transfer of any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(iii) retransfer the same for trial or disposal of the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try of dispose of such suit or proceedings may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section—

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court.

(b) “proceeding” includes a proceeding for the execution of a decree or order.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from Court which has no jurisdiction to try it.”

18. Order IV-A of the C.P.C does provide for consolidation of suit and proceedings. The expression “same Court” in Order IV-A does not mean by the same Judge, rather means the same Civil Court. If the limited meaning is given to this expression, it would create hurdle in substantial dispensation of justice and cases which require decision on the basis of same document in the same set of facts and circumstances in that case be decided by different Courts and by different Judges who may not be aware of the arguments made in either case which will defeat the object of Order IV-A, C.P.C Therefore, this Court is of the opinion that the meaning given to the word ‘same Court’ may be one, which advances object of the provisions of the Act and not defeat it. A wider meaning has therefore, to be given to the words ‘same Court’, rather a restricted meaning as urged by the Counsel for the petitioners.

19. For the reasons stated above, I do not find any illegality or infirmity in the impugned order by which the proceedings before the Civil Judge (Junior Division) have been transferred to the Court of Civil Judge (Senior Division), Lalitpur.

20. The writ petition is dismissed. No order as to cost.

Petition Dismissed.

Amardeep v. District Judge, Lalitpur

Summary of the Legal Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments

Respondent No. 3's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Amardeep v. District Judge, Lalitpur

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