Jagdish Chandra, J.

( 1 ) IN this suit for possession and damages for use and occupation of the property in suit the entire evidence was recorded and concluded and the suit was set for final hearing. Instead of hearing the arguments of parties counsel on all the issues, arguments were heard only on issue No. 1 which dealt with the correctness of the valuation put in the plaint and vide order dated 11th January 1988 it was held that the market value of the property in suit was less then Rs. 100. 000 on the date of the filling of. the suit and consequently the High Court was not empowered to entertain and decide this suit. This fact was conceded by the learned counsel for both the parties. The plaint was, therefore, ordered to be returned to the plaintiff for presentation to the District Judge and for this purpose the plaintiff was directed to appear before the Deputy Registrar on 14th January 1988. On that day i. e. 14th January 1988 the plaintiff filed this application under section 24 read with section 151 of the Code of Civil Procedure who chose not to receive back the plaint for presentation to the court of the District Judge. Notice of this application was issued to the defendant s counsel and the defendant filed the reply.

( 2 ) IT was pointed out in this application and also contended by the learned counsel for the plaintiff that if only the plaint were to be returned to the plaintiff for presentation of the same to the court of the District Judge, de novo proceedings would have to be started by the court of the District Judge, which would put the plaintiff to unnecessaiy harassment culminating into unnecessary delay in the disposal of the suit, and that if the suit is transferred by the High Court to the court of the District Judge, the District Judge would not have to record the evidence afresh and would take up the case from the stage it reaches him and would thus be left only with the task of hearing the final arguments of the counsel for the parties and to decide the suit and in this manner the entire proceedings recorded for about four years since 18-2-1984, the date of the institution of the suit, would not go waste which would necessarily go waste if the suit is not transferred by the High Court and the plaintiff is simply made to receive back the plaint and present the same to the court of the District Judge who would have to start the proceeding de novo. In the face of this extraordinary and exiceptional difficulty, this application for the transfer of the suit from the High Court to the court of the District Judge has been made and it is pressed in that light by the learned counsel for the plaintiff.

( 3 ) THE relevant portion of section 24 of the Code of Civil Procedure is reproduced below :-

"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 XX XX XX XX XX XX XX XX XX (5) A suit or proceeding may be tansferred under this section from a Court which has no jurisdiction to try it. "

( 4 ) SUB-SECTION (5) of this provision was inserted by Civil Procedure Code (Amendment) Act, 1976 for the first time and its insertion was necessitated for the reason that some of the High Courts in India were of the view that suit/appeal/proceeding pending before a court must be understood in the sense that the same was duly pending meaning thereby that it was pending in a court of competent jurisdiction, and if it was pending in a court without jurisdiction, the same could not be transferred from that court to another court. In order to do away with the mischief caused by the time consumed in recording the evidence sub-section (5) was inserted i

Click Here to Read the rest of this document