1. Suit for declaration and injunction amended to include possession, increasing valuation beyond pecuniary jurisdiction, leading to a transfer application under Section 24 CPC. (Para 5 , 6 )
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1999 Supreme(SC) 730
SUPREME COURT OF INDIA
S.B.Majmudar : U.C.Banerjee
Vivekananda Nidhi
Versus
Asheema Goswami
Case No. : 4026 , 4027 of 1999
Date of Decision : 7/21/99
Important Points
Under Section 24 of the Code of Civil Procedure, notice to the opposite party is mandatory if a transfer order is passed upon an application by a party; notice is only dispensable if the court acts suo motu.
Subject
Civil Law - Code of Civil Procedure
Act Referred
Headnote
(A) Code of Civil Procedure, 1908 - Section 24 - Transfer of suits - Power of District Court - Notice to parties - Where a transfer order is passed on the application of a party, the statutory requirement of providing notice and hearing to the other side must be complied with - Such an order cannot be treated as a suo motu order - Absence of notice to the contesting party renders the transfer order invalid. (Para 10)
Facts of the case:
A suit for declaration was filed in a court of limited pecuniary jurisdiction. During the evidence stage, an amendment was allowed to include a prayer for possession, which increased the suit valuation beyond the pecuniary jurisdiction of the trial court. The plaintiff subsequently applied to the District Judge to assign the suit to an appropriate court. The District Judge, invoking powers under Section 24 of the Code of Civil Procedure, transferred the suit to another court without issuing notice to the defendant. The High Court upheld this order, characterizing it as an exercise of administrative power.
Findings of Court:
The order of the District Judge was not passed suo motu but was based on an application filed by the plaintiff. Under Section 24 of the Code of Civil Procedure, if an order is passed on the application of any party, notice to the other parties and a hearing are mandatory.
Issues: Whether the District Judge could transfer a suit under Section 24 of the Code of Civil Procedure without notice to the other party when the transfer was initiated by an application and not suo motu.
Ratio Decidendi: Section 24 of the Code of Civil Procedure distinguishes between orders passed on the application of a party and those passed suo motu. While suo motu orders do not require notice, orders passed on an application necessitate notice to the parties and a hearing of those who desire to be heard. Since the transfer was based on an application, the failure to notify the other side was a statutory violation.
Result: Impugned order of the District Judge and the High Court set aside.
Facts of the case:
A suit for declaration was filed in a court of limited pecuniary jurisdiction. During the evidence stage, an amendment was allowed to include a prayer for possession, which increased the suit valuation beyond the pecuniary jurisdiction of the trial court. The plaintiff subsequently applied to the District Judge to assign the suit to an appropriate court. The District Judge, invoking powers under Section 24 of the Code of Civil Procedure, transferred the suit to another court without issuing notice to the defendant. The High Court upheld this order, characterizing it as an exercise of administrative power.
Findings of Court:
The order of the District Judge was not passed suo motu but was based on an application filed by the plaintiff. Under Section 24 of the Code of Civil Procedure, if an order is passed on the application of any party, notice to the other parties and a hearing are mandatory.
Issues: Whether the District Judge could transfer a suit under Section 24 of the Code of Civil Procedure without notice to the other party when the transfer was initiated by an application and not suo motu.
Ratio Decidendi: Section 24 of the Code of Civil Procedure distinguishes between orders passed on the application of a party and those passed suo motu. While suo motu orders do not require notice, orders passed on an application necessitate notice to the parties and a hearing of those who desire to be heard. Since the transfer was based on an application, the failure to notify the other side was a statutory violation.
Result: Impugned order of the District Judge and the High Court set aside.
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Table of Contents
2. Whether the transfer of a suit under Section 24 CPC was a suo motu administrative act or required notice to the opposing party. (Para 8 , 9 , 10 )
3. The transfer order was based on a party's application, not suo motu, making notice to the other side a mandatory statutory requirement under Section 24 CPC. (Para 10 )
4. A transfer order passed under Section 24 CPC upon a party's application requires notice to the other side, unlike an order passed suo motu. (Para 10 )
5. Orders of the District Judge and High Court set aside; application restored to the District Judge for disposal after hearing both parties. (Para 10 , 11 )
6. Does a transfer order under Section 24 CPC always require notice to the other side?
No. Section 24 CPC allows the High Court or District Court to pass transfer orders either on the application of any party, which requires notice and hearing, or of its own motion (suo motu), in which case notice is not required. (Para 10 )
7. What is the requirement when a transfer under Section 24 CPC is initiated by a party's application?
When the court is moved by an application from a party to invoke jurisdiction under Section 24 CPC, the statutory provision requires that notice be issued to the other parties and those who desire to be heard. (Para 10 )
8. Can a transfer order based on a party's application be treated as a suo motu order?
No. If the court is moved by an application from a party, the resulting order is not suo motu, and the mandatory requirement of providing notice to the opposing side must be followed. (Para 10 )
(1) LEAVE granted.
(2) WE have heard the learned counsel for the parties finally in this appeal.
(3) THE limited notice was issued in these proceedings at SLP stage to the following effect:
"ISSUE notice limited to the questions: (7) Once the amendment was granted, whether the trial court should have passed order under Order VII Rule 11 CPC, for returning the plaint for presentation before proper court; (2) Whether under these circumstances, the learned District Judge should have exercised administrative power under Section 24 without hearing the petitioner. Issue notice on stay application. Ad interim stay of further proceedings of Transferred Suit No. 359 of 1991 (renumbered as Title Suit No. 2 of 1996), pending before the Xth Additional District Judge, Alipore, South 24 Parganas (W.B.)"
(4) WHEN the appeal was heard finally, the second point which, in our view, requires a closer scrutiny, arose for consideration. We are not inclined to consider the first point which appears to us, on the facts of this case, to be of a technical nature.
(5) SO far as the second point is concerned, a few relevant facts may be noted for appreciating the same. The respondent-plaintiff filed a suit in the Second Court of the learned Munsiff, Alipore for declaration that the deed of settlement in the form of a trust deed executed by her in favour of the appellant trust was not legal and valid and also prayed for consequential relief of injunction against the trustees. The said suit was registered as Title Suit No. 359 of 1991 in the Court of the learned Munsiff, Alipore, South 24 Parganas (W.B.).
(6) WHEN the suit had proceeded further, at the evidence stage, an amendment was moved by the respondent by which a prayer for possession of the suit properties was inserted. The appellants herein did not contest the said amendment. Thus, the amendment sought for was allowed. The result was that the original suit valuation of Rs 100 got enlarged to Rs 5,00,100 beyond the pecuniary jurisdiction of the learned Munsiff. It is at this stage that the respondent herein moved an application before the learned District Judge, Alipore, bringing to his notice the said order passed by the learned Munsiff, requesting the learned District Judge to assign the suit to an appropriate court within his jurisdiction.
(7) LEARNED District Judge by his order dated 14-12-1995 stated that he has perused the application. This application obviously could have been filed under Section 24 of the Code of Civil Procedure and had, in fact, been filed under the same, as the said order says. The order recites that on a perusal of the application supported by the affidavit filed by the plaintiff and the xerox copy of the orders passed in TS No. 359 of 1991 by the Munsiff, 2nd Court, Alipore, enclosed therewith, it appeared that the learned Munsiff, 2nd Court, Alipore, was not empowered to try such suit, which is valued beyond Rs 30,000. Hence, by invoking the power conferred on the learned District Judge under Section 24 CPC, the title suit was ordered to be transferred from the file of the learned Munsiff, 2nd Court, Alipore, to the file of the 10th Assistant District Judge, Alipore for disposal.
(8) THE said order of the learned District Judge was challenged before the High Court. The learned Single Judge of the High Court by his impugned order, which is the subject-matter of this appeal, took the view, amongst others, that the learned District Judge, Alipore, had exercised powers under Section 24 CPC in his administrative capacity and, therefore, in the absence of any inherent defect in such orders, no question of exercising the power under Article 227 of the Constitution of India arose.
(9) SHRI A.K. Ganguli, learned Senior Counsel for the appellants vehemently contended before us that the aforesaid observations of the learned Single Judge of the High Court are not borne out from the nature of the order which was scrutinised by him. We
