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High Court of Andhra Pradesh
THE HONOURABLE MR. JUSTICE P.S. NARAYANA
Chellkani Gopala Rao
Versus
Damera Venkata Muralikrishna Rao
Tr.C.M.P.No.99 of 2009
Decided on : 17-04-2009
Civil Procedure Code, 1908 - Section 24, 26, 141 - Order 2 - Rule 2- Petitioner had taken this Court through the contents of affidavit filed in support of Tr.C.M.P. and would maintain that in light of facts well explained in paras 2, 3, 4, 5 and 6 of affidavit filed in support of if transfer as prayed for is not granted petitioner would be put to serious loss - Counsel also had taken this Court through contents of order made in T.O.P.No. on the file of District Judge and learned Counsel would maintain that reasons recorded by the learned District Judge while dismissing said T.O.P. also being unsustainable reasons relief prayed for in be granted - Counsel also placed reliance on certain decisions - Respondent had taken this Court through the contents of counter affidavit and would maintain that in light of reasons recorded by learned District Judge while dismissing T.O.P. and inasmuch as no fresh grounds are forthcoming and also in light of legal position since ground taken in cannot be a ground for transfer under Section 24 of Code of Civil Procedure (hereinafter in short referred to as "Code" for purpose of convenience) to be dismissed - It is case of petitioner that petitioner is plaintiff in O.S.No. on the file of Senior Civil Judge, and said suit was filed by him for recovery of amount on strength of a promissory note executed by respondent in his favour – Held, Respondent were fully heard - After hearing learned counsel for parties court were satisfied that learned single Judge as well as Division Bench both had committed error in allowing the writ petition and granting relief to the respondent - Court expressed our view in Court and suggested to Mr. counsel for respondent that if he agreed the original writ petition of respondent could be dismissed without directing him to refund amount which he had already been paid by appellants in pursuance to orders of the High Court and of this Court as during pendency of appeal appellants were directed by means of interim order of this Court to continue to pay salary to respondent which was being paid to him regularly - Thereupon, respondent himself appeared in person and sought permission to make his submissions personally – Court refused to accede to his request as oral hearing had already been completed and matter had been adjourned only to enable respondents counsel to obtain instructions - Since this was unusual, uncalled for and unjustified request we ignored same and reserved order - In instant case on conclusion of oral hearing Court had expressed Court opinion on in open court that were inclined to allow appeal and set aside order of High Court and dismiss writ petition but taking a sympathetic view we requested learned counsel appearing for the respondent to obtain instructions as aforesaid – Order Accordingly.
1. This Court ordered Notice before admission on 2-3-2009 and granted interim stay for a period of three weeks.
2. Sri T. Rajasekhar Rao who lodged caveat had taken notice and requested time to file counter affidavit. Subsequent thereto the interim stay was extended for a limited period. Inasmuch as counter affidavit had been filed, the Transfer C.M.P. as heard finally and while reserving orders on 1-4-2009, the interim stay already granted was extended until further orders.
3. Sri G.Ram Gopal, the learned Counsel representing the petitioner had taken this Court through the contents of the affidavit filed in support of the Tr.C.M.P. and would maintain that in the light of the facts well explained in paras 2, 3, 4, 5 and 6 of the affidavit filed in support of the Tr.C.M.P., if the transfer as prayed for is not granted, the petitioner would be put to serious loss. The learned Counsel also had taken this Court through the contents of the order made in T.O.P.No.442/2008 on the file of District Judge, Srikakulam and the learned Counsel would maintain that the reasons recorded by the learned District Judge while dismissing the said T.O.P. also being unsustainable reasons, the relief prayed for in the Tr.C.M.P. be granted. The learned Counsel also placed reliance on certain decisions.
4. Per contra, Sri Tarlada Rajasekhar Rao, the learned Counsel representing the respondent had taken this Court through the contents of the counter affidavit and would maintain that in the light of the reasons recorded by the learned District Judge while dismissing the T.O.P. and inasmuch as no fresh grounds are forthcoming and also in the light of the legal position since the ground taken in the Tr.C.M.P. cannot be a ground for transfer under Section 24 of the Code of Civil Procedure (hereinafter in short referred to as "Code" for the purpose of convenience), the Tr.C.M.P. to be dismissed. The Counsel also placed reliance on certain decisions.
5. In the light of the submissions made by the Counsel representing the respective parties, the following Points arise for consideration in this Tr.C.M.P:
1. Whether the relief prayed for in the Tr.C.M.P. praying for withdrawal of the suit
O.S.No.15/2003 on the file of Senior Civil Judge, Rajam and to transfer the same to any other competent Court in Srikakulam District to be granted or to be negatived in the facts and circumstances of the case ?
2. If so to what relief the parties would be entitled to ?
6. Point No.1: The petitioner filed the Tr.C.M.P. under Section 24 of the Code praying for withdrawal of the suit O.S.No.15/2003 on the file of Senior Civil Judge, Rajam and to transfer the same to any other Court of Senior Civil Judge in Srikakulam District preferably at Srikakulam and to pass such other suitable orders. It is the case of the petitioner that the petitioner is the plaintiff in O.S.No.15/2003 on the file of Senior Civil Judge, Rajam and the said suit was filed by him for recovery of amount on the strength of a promissory note executed by the respondent in his favour. Similarly, yet another promissory note was executed by the respondent in favour of his son and his son filed O.S.No.14/2003 on the file of Senior Civil Judge, Rajam for recovery of the amount. The stand taken by the respondent as defendant is that these documents are forged documents. The learned Senior Civil Judge after elaborate trial decreed the suit O.S.No.15/2003 on 14-9-2004. Hence, the defendant carried the matter by way of appeal A.S.No.105/2004 on the file of Additional District Judge, Srikakulam. However, the suit O.S.No.14/2003 was dismissed by the learned Senior Civil Judge by Judgment dated 20-8-2007. Subsequent thereto, the appeal A.S.No.105/2004 was taken up for hearing by the learned Additional District Judge and while allowing the Appeal the matter was remanded to the trial Court. It is also the case of the petitioner that the promissory notes in O.S.No.14/2003 and O.S.No.15/2003 are identical promissory not
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