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IN THE HIGH COURT OF KARNATAKA
Suraj Govindaraj, J.
BHAWANDAS SHARMA – Appellant
Vs.
INDIAN OVERSEAS BANK – Respondent
Civil Revision Petition No. 49 of 2021
Decided On : 03-09-2021
TRANSFER - Partition Suit - Sec. 24 of CPC - Sec. 115 of CPC - [O.S No. 5735/2008, O.S No. 254/2009, O.S No. 633/2018, O.S No. 7187/2018, O.S No. 4344/2012] - The court discussed the jurisdiction under Sec. 24 of CPC and Sec. 115 of CPC in the context of transferring multiple suits to one court for a common trial. The court held that the power exercised under Sec. 24 of CPC is transfer jurisdiction, different from the power exercised by the court in normal circumstances while deciding a matter. The court also concluded that trying all the suits by one court would not amount to enlargement of the scope of the suit, as it would only involve a common trial followed by separate judgments in each suit. The court modified the order and transferred O.S No. 5735/2008 to CCH-69 for a common trial with separate judgments in each suit.
Fact of the Case:
The petitioner sought to set aside the order passed by the Principal Civil Judge, Bengaluru in Miscellaneous No. 438/1998, which sought the transfer of multiple suits to one court for a common trial. The suits involved disputes related to partnership, dissolution, property ownership, and gift deeds.
Finding of the Court:
The court found that the power exercised under Sec. 24 of CPC is transfer jurisdiction, different from the power exercised by the court in normal circumstances while deciding a matter. It also concluded that trying all the suits by one court would not amount to enlargement of the scope of the suit, as it would only involve a common trial followed by separate judgments in each suit. The court modified the order and transferred O.S No. 5735/2008 to CCH-69 for a common trial with separate judgments in each suit.
Issues: 1. Whether the court had jurisdiction to exercise Sec. 115 of CPC in the present matter? 2. Whether transfer of all cases to one Court would enlarge the scope of the suit in the proceedings? 3. Whether any grounds were made out by the petitioner to interfere with the impugned order dtd. 5/1/2021?
Ratio Decidendi: The court held that the power exercised under Sec. 24 of CPC is transfer jurisdiction, different from the power exercised by the court in normal circumstances while deciding a matter. It also concluded that trying all the suits by one court would not amount to enlargement of the scope of the suit, as it would only involve a common trial followed by separate judgments in each suit.
Final Decision: The court modified the order and transferred O.S No. 5735/2008 to CCH-69 for a common trial with separate judgments in each suit.
JUDGMENT :
Suraj Govindaraj, J.
1. The petitioner is before this Court seeking to set aside the order dtd. 5/1/2021 in Misc. Petition No. 438/2019 passed by the Principal City Civil and Sessions Judge, Bengaluru, reverse the same and allow the miscellaneous petition for transfer filed by the petitioner in its entirety.
2. Misc. Petition No. 438/2019 has been filed seeking for transfer of suits in O.S No. 5735/2008 pending on the file of CCH-45, O.S No. 254/2009 pending on the file of CCH-69 (now CCH-84), O.S. No. 7187/2018 pending on the file of CCH-41, O.S No. 4344/2012 pending on the file of CCH-36, O.S No. 633/2018 pending on the file of CCH-38.
3. O.S No. 5735/2008 has been filed seeking for partition of the properties between the plaintiff and defendants, one of the properties being property No. 10/1, 1st Floor, Lakshminarayan Complex, Vasanthnagar, Bengaluru. In the said suit, averments are made as regards the dissolution of the partnership deed stated to have been entered into, and in view of the dissolution thereof, certain gift deed executed as regards properties subject matter of the suit for partition. In the said partition suit, petitioner, respondents 5 and 6 are the plaintiffs. Respondents No. 3, 4, 8, 9 and 10 are the defendants.
4. The suit in O.S. No. 254/2009 has been filed by respondent No. 3 herein against Indian Overseas Bank, who are respondents No. 1 and 2 herein for eviction. In the said suit, the petitioner impleaded himself as Defendant No. 3 therein.
5. In O.S No. 254/2009 respondents No. 1 and 2 have taken up a contention that there was dissolution of partnership and thereafter certain lease deed has been executed with the petitioner herein and as such, claim of the Respondent No. 3 of ownership of the property in O.S No. 254/2009 as landlord has been denied.
6. The suit in O.S No. 633/2018 has been filed by the petitioner against respondent No. 1-Indian Overseas Bank for eviction, claiming ownership of the property in pursuance of the dissolution and, as such, having stepped into the shoes of the landlord.
7. The suit in O.S No. 7187/2018 has been filed seeking for declaration that the gift deed dtd. 22/7/2018 and 25/5/2018 are null and void. In the plaint it is alleged that subsequent to the execution of the dissolution of the partnership on 1/5/1985, the properties were allotted to the various members of the family and as such, in pursuance of the said allotment various persons became owners and gift deed could not be executed.
8. The suit in O.S. No. 4344/2012 has been filed for declaration that gift deed dtd. 14/10/2009 is not binding on the plaintiff. Further, in this suit a reference was made with regard to partnership and dissolution thereof and that the plaintiff was the owner of the property and gift deed executed amongst defendants is a fraudulent document.
9. It is in the above background, aforesaid Misc.P. No. 438/2019 has been filed to club all these suits together and try the same and pass a common judgment.
10. The trial Court transferred the suits in O.S No. 254/2009, O.S No. 633/2018, O.S No. 7187/2018 and O.S No. 4344/2012 to CCH-69. However, rejected the plea for transfer of O.S No. 5735/2008 on the ground that no prejudice would be caused to any of the parties, if partition suit in O.S. No. 5735/2008 is independently tried. While doing so, at paragraph 11 of the order, the trial Court observed that the issues in a partition suit and ejection cannot be the same.
11. Aggrieved by the same, petitioner is before this Court contending that O.S No. 5735/2008 is also to be transferred to the same Court.
12. Sri. P.D. Surana, learned counsel for the petitioner submitted that:
12.1. Essentially the dispute in all the suits that will have to be decided is in relation to partnership and dissolution thereof, allotment of various portions of the property and in pursuance thereof whether gift deed has been properly executed or not has be considered.
12.2. As regards dissolution of partnership deed there cou
AI
Transfer of suits under Section 24 of CPC requires clear similarity of cause of action or parties; advanced stage of trial weighs against transfer.
The main legal point established in the judgment is the scope of revisional powers under Section 115 of the CPC and the principles of rejection of plaint under Order VII Rule 11 of the CPC.
The judgment establishes the principle that the scope of revisional powers of the High Court under Section 115 of the CPC is limited to the irregular exercise or non-exercise of jurisdiction, and doe....
In partition suits involving adverse possession, procedural adherence is critical; issues of tenancy must be resolved before partition can occur, and failure to provide proper notice invalidates clai....
Transfer of civil proceedings - When an appeal is filed under Section 5(i) of Kerala High Court Act, 1958 against order passed under Section 24 of Code of Civil Procedure by a learned Single Judge, D....
The principle of res judicata does not apply when a previous suit is dismissed on technical grounds, allowing for a new suit to be filed based on a recurring cause of action for partition.
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