Rosamma Joseph v. P.C Sebastian .

1. The petitioner in O.P(T.P) No. 25 of 1994 on the file of the District Court, Kottayam, is the revision-petitioner. This petition was filed under S. 24 of the Code of Civil Procedure, seeking for an order withdrawing O.S No. 319 of 1992 from the file of the Munsiff's Court, Changanacherry and transferring the same to the Sub-Court, Kottayam, to be tried along with O.S No. 811 of 1992. After the enquiry the above petition was dismissed by the Court below as per order dated 30-5-1994. The present revision is filed against the said order passed by the District Judge, Kottayam.

2. The facts involved in this case can be summarised thus: O.S No. 319 of 1992 was filed by the respondent in this revision petition, before the Munsiff's Court, Changanacherry, in which the petitioner is the first defendant. That was a suit for redemption of the possessory mortgage and relief is sought only against the petitioner. The second defendant in that suit is the daughter of the petitioner, who is conducting a beauty parlour in the petition schedule building. Third defendant is the husband of the first defendant. The property involved in the suit is two shop rooms, specifically described in the plaint schedule property. The said two rooms were in the possession of the petitioner. In respect of these two rooms the father of the petitioner had executed a settlement deed in favour of the respondent, pursuant to a compromise decree in O.S No. 281/81. However, the petitioner continued in possession of the rooms. It is alleged that the respondent had agreed to sell these two rooms for a consideration of Rs. 50,000/- payable in monthly instalments of Rs. 2,500/- to the petitioner. The petitioner remitted the entire consideration, but the respondent refused to execute the sale deed, though he had agreed to execute the same on or before 30-5-1992. Instead of doing so, he sent a notice to the petitioner alleging that she had executed a mortgage deed mortgaging the said two rooms to the respondent on 24-4-1987 as per document No. 1040/87. Therefore, the respondent filed the suit, O.S No. 319/92, on 28-7-1992 in the Munsiff's Court, Changanacherry against the petitioner for redemption of the mortgage. The case of the petitioner is that the said suit was not maintainable. However, the petitioner thereafter filed O.S No. 811 of 1992 on 16-9-1992 before the Sub-Court, Kottayam for specific performance of the agreement for sale of these two rooms. The defendant in that suit is the respondent herein who is the plaintiff in O.S No. 319 of 1992.

3. The respondent in this case entered appearance in the petition for transfer before the Court below. However, he did not file any counter-statement. After the hearing, the Court below dismissed the petition. While so dismissing the petition, the Court below observed that though the parties and subject matter of the two suits are one and the same, there was no common question of law and facts in these two suits.

4. Before deciding the question involved in this case, it is necessary to find out what are the guidelines for exercise of power of transfer and withdrawal of the suits under S. 24 of the Code of Civil Procedure. Section 24 of the C.P.C confers general power to transfer and withdrawal of the suits and proceedings by the High Court and the District Court. The language of S. 24 is very wide and there are no restrictions in the way of the High Court exercising the said power. It can be exercised by the Court either on the application of any party or of its own motion and at any stage of the suit. It may well be discerned that the provisions contained in S. 15 of the Code will not stand in the way of exercising the power under S. 24. Section 15 of the Code only requires institution of the suit in the Court of the lowest grade competent to try it. It does not preclude transfer of a suit so instituted to a Court of superior grade. In this case the suit which is pending before the Munsiff's Court is sought to be tried by a superior Court.

5. However, a transfer of a suit cannot be made in a light-hearted fashion as cautioned by this Court in T.V Bachera Warrier v. State of Kerala (1984 Ker LT (Sh. N.) 44). In District Collector, Kozhikode v. Kerala Varma Kovil Thampuran (1959 Ker LT 1178) this Court observed: “Where there are suits which raise certain common questions of facts and law, having a substantial bearing on the decision of each of the cases; it is obviously desirable, that they should be tried at the same place and by the same Judge.” The involvement of common question of law and facts is not the only ground authorising the transfer of suits under S. 24. It is only illustrative and not exhaustive. This is paramountly a matter involving the satisfaction of the Court which exercises the power. What the above decision magnifies is that when certain common questions of facts having a substantial bearing on the decision of both the cases they should be tried together. If the facts of the suits sought to be tried together are intertwined with cause of action in each suits the transfer of suit may not be refused provided the parties and subject-matter of the suits are one and the same. When the Court feels that facts intertwined with the different causes of action are separated and suits tried independently would result in conflicting decisions, it can allow the transfer and joint trial.

6. As analysed hereinbefore the litigating parties in both the suits are one and the same. The subject-matter involved in both the suits is the two shop rooms. In respect of these shop rooms the case of the plaintiff in O.S 319/92 (respondent) is that they were transferred under a possessory mortgage and hence liable to be redeemed from the possession of first defendant (petitioner). On the other hand, it was in respect of the same shop rooms the petitioner filed O.S No. 811 of 1992 against the respondent for specific performance of an agreement of sale. In O.S 319 of 1992 the Court below has framed a specific issue namely, “whether there is any agreement to sell the mortgaged property as contended?” In the suit, O.S No. 811/92 filed for specific performance of an agreement the question to be considered is whether there was an oral agreement of sale as between the parties and the specific performance was sought in respect of the same properties. Thus, apart from the common nature, facts are intertwined and overlapped in this case. The possibility of conflicting decisions if the suits are tried separately cannot also be totally ruled out.

7. Another point which was strongly stressed by the counsel is that when the petitioner has filed the present application for transfer, the respondent has not filed any counter-statement. He contends that there was no objection at all for ordering joint trial. However, I cannot accept this contention, but the fact remains that no counter-statement has been filed in the Court below opposing the application for transfer.

8. In view of the discussion herein above, I do not find my way to agree with the conclusion of the Court below. According to me, this is a fit case where transfer and joint trial be ordered. In that view of the matter, I set aside the impugned order of the Court below and direct O.S No. 319/92 on the file of the Munsiff's Court, Changanacherry, shall be withdrawn and transferred to the Sub-Court, Kottayam to be tried along with O.S No. 811 of 1992. The civil revision petition is allowed. No order as to costs.

Revision allowed.