George Kurian Arikody v. Geordy Joseph Pittappilly

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH DAY OF DECEMBER 2013/29TH AGRAHAYANA, 1935 Tr.P(C).No. 608 of 2013 () --------------------------(T.O.P.NO.1068 OF 2012 IN THE PRINCIPAL DISTRICT COURT, ERNAKULAM) PETITIONER(S): -------------------------- GEORGE KURIAN ARIKODY FLAT NO.A(III) - MMC 12/183 H, KAVUMPADY ROAD MARADY VILLAGE IN FRONT OF NIRMALA JUNIOR SCHOOL, MUVATTUPUZHA POST ERNAKULAM DISTRICT-686 661. BY ADV. GEORGE KURIAN ARIKODY (PARTY-IN-PERSON) RESPONDENT(S): ---------------------------- GEORDY JOSEPH PITTAPPILLY PITTAPPILLY HOUSE, IN FRONT OF NIRMALA JUNIOR SCHOOL, KAVUMPADY ROAD, MARADY VILLAGE, MUVATTUPUZHA POST ERNAKULAM DISTRICT-686 661. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 2012-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **Tr.P.(C) NO.608/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** - **ANNEXURE A1 : COPY OF THE PETITION IN TRANSFER OF ORIGINAL PETITION (TOP 1068/2012) DATED 22.11.2012 IN RCP 04/2011 IN THE FILES OF RENT CONTROL COURT, PERUMBAVOOR** - **ANNEXURE A2 : COPY OF THE ORDER IN TOP 07/12 DATED 18.1.2012 PASSED BY THE HON. PRINCIPAL DISTRICT COURT, ERNAKULAM** - **ANNEXURE A3 : COPY OF THE ORDER IN REVIEW PETITION (RP 02/12) PASSED BY THE PRINCIPAL DISTRICT COURT, ERNAKULAM** - **ANNEXURE A4 : COPY OF THE REPLY DATED 6.6.2012 RECEIVED UNDER RIGHT TO INFORMATION ACT FROM CBI COURT, ERNAKULAM** - **ANNEXURE A5 : COPY OF THE IA FILED IN RCP 04/11 WITH COURT FEE NO.(CF No.) 3545/2012, PLEADING FOR PROTECTION FROM REPEATED PHYSICAL ATTACKS CARRIED BY THE MR.JIMMY JOSE T, A COURT STAFF** - **ANNEXURE A6 : COPY OF THE STAY ORDER IN IA 6403/12 IN TOP 1068/12 ISSUED BY THE HON. PRINCIPAL DISTRICT COURT, ERNAKULAM** - **ANNEXURE A7 : COPY OF THE IA 4328/13 FILED IN TOP 1068/12 EXPRESSING “ANY FAITH” IN HON. PRINCIPAL DISTRICT COURT, ERNAKULAM** - **ANNEXURE A8 : COPY OF THE MEMORANDUM DATED 18.10.2013 ADDRESSED TO THE HON. REGISTRAR FOR SUBORDINATES JUDICIARY, HON. HIGH COURT OF KERALA, ERNAKULAM, ALONG WITH THE ACCEPTANCE RECEIPT ISSUED BY THE TAPAL SECTION OF THE HON. HIGH COURT OF KERALA** - **ANNEXURE A9 : COPY OF THE IA NO.549/13 FILED IN TOP 1068/12 ESTABLISHING THE INORDINATE DELAY OF (27) DAYS DELIBERATELY CAUSED BY THE DISTRICT COURT, ERNAKULAM NAZIR'S IN PROCESSING THE “NOTICE” ORDERED TO ISSUE BY THE DISTRICT COURT** - **ANNEXURE A10 : COPY OF THE IA 2342/13 IN TOP 1068/12 PLEADING FOR UPHOLDING FUNDAMENTAL RIGHTS** - **ANNEXURE A11 : COPY OF THE IA 3846/13 FILED ON 9.9.2013 IN TOP 1068/12 PLEADING FOR ADJOURNMENT OF HEARING ON HEALTH GROUND** - **ANNEXURE A12 : COPY OF THE IA 4802/13 FILED IN TOP 1068/2012 PLEADING FOR ADJOURNMENT OF HEARING ON KERALA BANDTH DAY 18.11.2013** - **ANNEXURE A13 : COPY OF THE A-DIARY IN RCP 10/07** - **ANNEXURE A14 : COPY OF THE RELEVANT PORTION FROM THE DAILY NEWS PAPER “THE NEW INDIAN EXPRESS” KOCHIN EDITION, PUBLISHED ON WEDNESDAY, 11 APRIL, 2012** - **ANNEXURE A15 : COPY OF THE PROCEEDINGS (A-DIARY) IN RCP 4/11** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A16 COPY OF THE KNEE X-RAY OF THE PETITIONER/TENANT FROM NIRMALA HOSPITAL, MUVATTUPUZHA** ## **RESPONDENTS' ANNEXURES:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE** **vps** ## **P.N.RAVINDRAN** , **J.** ## **--------------------------Tr.P.(C) No.608 of 2013 -------------------------Dated this the 20[th] day of December, 2013** ## **O R D E R** The prayer in this transfer petition filed by the respondent in R.C.P.No.4 of 2011 on the file of the Rent Control Court, Perumbavoor is to transfer T.O.P.No.1068 of 2012 presently pending in the Court of the Principal District Judge of Ernakulam to the Court of the Principal District Judge of Kottayam. The petitioner has also prayed for an interim order staying further proceedings in T.O.P.No.1068 of 2012 on the file of the Court of the Principal District Judge of Ernakulam and all further proceedings in R.C.P.No.4 of 2011 on the file of the Rent Control Court, Perumbavoor pending disposal of the transfer petition. He has also prayed for an order directing the Court of the Principal District Judge, Ernakulam to carry out an administrative correction in the “A” dairy in T.O.P.No.1068 of 2012. 2. The relief sought in T.O.P.No.1068 of 2012 on the file of the Court of the Principal District Judge of Ernakulam is to transfer R.C.P.No.4 of 2011 on the file of the Rent Control Court, Perumbavoor to any other Rent Control Court. One of the issues that arise for consideration in this transfer petition is whether the Court of Tr.P.(C) No.608/2013 2 the Principal District Judge, Kottayam is competent to transfer R.C.P.No.4 of 2011 on the file of the Rent Control Court, Perumbavoor which is situated within Ernakulam judicial district. Section 24 of the Code of Civil Procedure which deals with transfer and withdrawal of cases reads as follows: _**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 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 to 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 or dispose of such suit or proceeding) 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 a Court which has no jurisdiction to try it._ 3 Tr.P.(C) No.608/2013 3. Under Clause (a) of sub-section (1) of section 24 of the Code of Civil Procedure, the High Courts and the District Courts are empowered to transfer 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 suit, appeal or other proceeding. Clause (b) of sub-section (1) of section 24 of the Code of Civil Procedure empowers the High Courts and the District Courts to withdraw any suit, appeal or other proceeding pending in any court court subordinate to it and (i) to try or dispose of the same or (ii) to transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same or (iii) to re-transfer the same for trial or disposal to the court from which it was withdrawn. Sub-section (2) of section 24 of the Code of Civil Procedure stipulates that where any suit or proceeding has been transferred or withdrawn under sub-section (1), the court which is thereafter to try or dispose of such suit or proceeding 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. Sub-section (3) of section 24 of the Code of Civil Procedure stipulates that for the purposes of section 24, Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court and the term “proceeding” 4 Tr.P.(C) No.608/2013 includes a proceeding for the execution of a decree or order. Subsection (5) of section 24 of the Code of Civil Procedure stipulates that a suit or a proceeding may be transferred under section 24 from a court which has no jurisdiction to try it. 4. It is evident from Clause (a) of sub-section (1) of section 24 of the Code of Civil Procedure a District Court can transfer any suit, appeal or other proceeding pending before it for trial or disposal only to a court subordinate to it. Therefore applying section 24(1)(a) of the Code of Civil Procedure, District Court, Ernakulam can only transfer a suit, appeal or proceeding pending before it for trial and disposal to a court subordinate to it namely a subordinate court in Ernakulam judicial district. Likewise the District Court at Kottayam can only transfer a suit, appeal or proceeding pending before it for trial and disposal to a court subordinate to within the Kottayam judicial district. Interpreting section 24(1)(a) it cannot be held that the District Court in a judicial district can transfer a suit, appeal or proceeding pending before it to any court outside the judicial district. That power is conferred only on this Court. Section 23 of the code of Civil Procedure clarifies the said position. 5. The petitioner who is present in person however submitted that by withdrawing the transfer petition from the Court of the District Tr.P.(C) No.608/2013 5 Judge of Ernakulam and transferring it to the Court of the District Judge of Kottayam, this Court would be authorising the Court of the District Judge of Kottayam to exercise all the powers of the Court of the District Judge of Ernakulam and therefore, there is no reason why T.O.P.No.1068 of 2012 presently pending in the Court of the District Judge of Ernakulam cannot be transferred to the Court of the District Judge of Kottayam. 6. Sri.P.Viswanathan, learned counsel who was asked to assist this Court when the transfer petition came up for hearing yesterday (19.12.2013) submitted, relying on the observations in paragraph 10 of the decision in **Thomas v. Sunnichan** (2004 (2) KLT 420) that territorial jurisdiction is irrelevant while considering an application under section 24 of the Code of Civil Procedure and that the effect of an order passed under section 24 is to authorise the court to which the suit, appeal or other proceeding is transferred, to dispose of the suit appeal or other proceeding. The learned counsel submitted that as the court of the District Judge of Kottayam is otherwise competent to entertain a petition under section 24 of the Code of Civil Procedure, paragraph 10 of the aforesaid decision would lend support to the petitioner's request for transfer of T.O.P.No.1068 of 2012 presently pending in the Court of the Principal District Judge of Ernakulam to the Tr.P.(C) No.608/2013 6 ## Court of the Principal District Judge of Kottayam. Paragraph 10 of ## **Thomas v. Sunnichan** (supra) reads as follows: _“10. S.24 of the C.P.C, confers power on the High Court to withdraw any suit, appeal or other proceeding pending in any court subordinate to it, and transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same. There is no dispute about the fact that both the Family Courts are subordinate to this Court. The dispute is with regard to the competency of the Family court, Pathanamthitta at Thiruvalla to try the matter on the basis of the territorial limits prescribed. Even assuming that under S.19 or 20 of the C.P.C., the Family Court at Thiruvalla does not have the territorial jurisdiction to try and dispose of the proceedings, it is within the powers of this Court to authorise the Family Court at Thiruvalla to try and dispose of the said proceedings by an order issued under S.24 of the C.P.C. because, the said court does not lack competency in any other respects. The expression 'any court competent to try or dispose of' in S.24(1)(b)(ii) should be understood to mean a court which has got the power to try and dispose of suits or proceedings involving disputes of the nature referred to in S.7 of the Family Courts Act as also S.9 of the C.P.C. The word 'competent' used in S.24 of the C.P.C. should be understood in the context in which it is used and the purpose for which the said power is conferred. It should be interpreted and understood in a manner not to nullify the very purpose and object of the said section. Hence it has to be held that the word 'competent' in S.24 of C.P.C. does not refer to territorial jurisdiction.”_ 7. A learned single Judge of this Court has in the aforesaid decision held that territorial jurisdiction is irrelevant for the purpose of considering an application under section 24 of the Code of Civil Procedure and that the word “competent” occurring in section 24 does not refer to territorial jurisdiction. In my opinion, if such an interpretation were to be placed on Clause (b) of section 24(1) of the Tr.P.(C) No.608/2013 7 Code of Civil Procedure, it would enable litigants in a particular judicial district to move the District Court situate in another judicial district contending that as the District Court is competent to transfer suits, appeals or other proceeding pending in a court subordinate to it, there is no reason why the power under section 24 cannot be exercised by that court. As the Rent Control Court, Perumbavoor is not a court subordinate to the Court of the District Judge of Kottayam, which is situate in a different appellate jurisdiction, the petitioner ought to have in my opinion moved this Court for transfer of R.C.P.No.4 of 2011 from Rent Control Court, Perumbavoor to another Rent Control Court. The remedy of the petitioner lies in withdrawing T.O.P.No.1068 of 2012 presently pending in the Court of the District Judge of Ernakulam reserving liberty with him to move this Court under section 24 of the Code of Civil Procedure seeking a transfer of R.C.P.No.4 of 2011 from Rent Control Court, Perumbavoor to another Rent Control Court. The present request for transfer is in my opinion not maintainable. This Court cannot by transferring T.O.P.No.1068 of 2012 presently pending in the Court of the District Judge of Ernakulam confer jurisdiction on the Court of the District Judge of Kottayam to transfer a case pending in Ernakulam judicial district. I accordingly hold that the transfer petition is not maintainable 8 Tr.P.(C) No.608/2013 and dismiss the transfer petition without prejudice to the right of the petitioner to take appropriate steps as are required to withdraw T.O.P.No.1068 of 2012 presently pending in the Court of the District Judge of Ernakulam with liberty to file a transfer petition in this Court. **P.N.RAVINDRAN, (JUDGE)** vps