Back
2009 Supreme(Guj) 279
2009 (3) GCD 2489 (Guj)
Hon’ble Mr. Justice H.K. Rathod
Piyush @ Girish Umedbhai Patel
Versus
Shushilaben Umedbhai Patel & Anr.
Misc. Civil Application - for Transfer No. 98 of 2009—Decided on 01/05/2009
Appearance :
Party-in-Person, for the Applicant No. 1.
Mr. M.B. Gandhi, for the Opponents No. 1 - 2.
Mr. Chinmay M. Gandhi, for the Opponents No. 1 - 2.
Point in Issue :
Whether in the facts application for transfer of pending case is maintainable?
Headnote:Head Note :
Civil Procedure Code, 1908 — Section 24 — Transferring of pending suit — For consolidation with another suit pending in another Court — Scope and considerations indicated — And held that in the case applicant has failed to justify the request because there are different parties and different cause of action — Besides both parties are located in same city and no inconvenience is pointed out and no bias against the Judge is alleged — Also respondent has objected substantive ground that it shall create further complication and confusion in deciding both suits together — Considering the matter entirely Court finding no justification for transfer refused to interfere.
Held :
Considering General Power of this Court transferring matter pending before one Court to other Court in State is very wide but this Court has to consider that by transferring matter from one Court to other Court will make inconvenience to parties or it will cause inconvenience to respondents, in respect to transfer matter, genuine cause must have to be proved by applicant. In this case, applicant has failed to justify request of transfer because different parties, different cause of action are there and both parties are situated in same City no inconvenience has been pointed out and no bias against Judge has been pointed out and respondent has objected substantive ground that it creates further complication and confusion in deciding both suits together. [Para 8]
Considering matter entirely, there is no scope or any justification to exercise power under Section 24 of CPC for transferring pending suit from City Civil Court, Bhadra to Civil Court, Mirzapur, Ahmedabad. The party in person is not having any legal right to make such application unless compelling circumstances is to be justified otherwise it cause great injustice, prejudice and inconvenience to respondents. The party in person has filed this application as if that he is having legal right to make request to this Court to transfer proceeding from one Court to other Court but he failed to justify his request on logical (legal) ground. The party in person who is acquaintance for legal fight filed one application by another filing before different Court upto Apex Court and by this method, he is delayed matter pending before City Civil Court, Bhadra because he is deliberately make efforts to see that suit pending in City Civil Court, Bhadra may not be finalized.
[Para 9]
Law Laid Down :
In matter of transfer of a pending case from one Court to another, Court has to consider convenience and inconvenience to parties and applicant has to justify the request.
Case Law Analysis :
Shilpa Hargovinddas Patel vs. Dr. Vishnubhai Chaturbhai, 199. (sic) (3) GLR 2438 [Para 7];; Jitendra Singh vs. Bhanu Kumari & Ors., 2008 AIR SCW 5038 [Para 7];; Durgesh Sharma vs. Jayshree, 2008 (9) SCC 648 [Para 7];; Kulwinder Kaur alias Kulwinder Gurucharan Singh vs. Kandi friends Eduction Trust & Ors., 2008 AIR SCW 748 [Para 7];; Maneka Sanjay Gandhi vs. Rani Jethmalani, 1979 (2) SCR 378 [Para 7];; Subramaniam Swamy vs. Ramakrishna Hedge, 1990 (1) SCC 4 [Para 7].—Relied on
H.K. Rathod, J.—Heard Party in person Piyush @ Girish Umedbhai Patel and learned advocate Mr. CM Gandhi on behalf of respondents.
2. The present application is filed by Party in person Piyush @ Girish Umedbhai Patel on 22/8/2008 before Trial Court and same was not accepted and advised to applicant to file transfer application before High Court. Therefore, application is filed before this Court. The opponents have filed a Probate Case being No. 2959/2002 before City Civil Court, Ahmedabad. The subject matter of suit No. 234/2000 which is also pending before Civil Court, (Rural) Ahmedabad. Therefore, prayer is made to transfer Civil Suit No. 2959/2002 from City Civil Court, Bhadra to Civil Court, Mirzapur, Ahmedabad wherein Civil Suit No. 234/2000 is pending and both suits to be consolidated for hearing in the interest of justice. The party in person is present read his written arguments and pointed out to this Court that if this both suits are not decided together then it creates further complication which also wasting time of Court as well as party and almost contentions raised in both suits are covered main issue as legal fight is between family members. Therefore, in the interest of justice suit pending before City Civil Court is to be transferred to Civil Court (Rural), Mirzapur, Ahmedabad.
3. The party in person has produced copy of Civil Suit No. 234/2000 with amended copy of plaint as well as copy of interim order passed in Special Civil Suit No. 234/2000 below Exhibit 5 dated 30/11/2002. The injunction application stands partly allowed and injunction is granted against defendant to the effect that they should not sell, gift, mortgage, transfer, assign, hand over, alliniate suit property to another person in any manner whatsoever either personally or even through any of agencies made available to them and also they should not create any right, lien etc over suit properties till final disposal of suit in accordance with law. This interim order was passed on 30/11/2002.
4. In Civil Suit No. 234/2000 Hiraben wd/o Umedbhai Chhotabhai, party in person Piyush @ Girishbhai Umedbhai Patel and Ashokbhai Umedbhai Patel are plaintiff and Smt. Sushilaben Ratilal Patel, Minesh Ratilal Patel, Smt Bhumiben Kalpitbhai Patel (Zariwala) are defendant. Thereafter, parties have been added by way of amendment Exhibit 200 on 15/7/2000 one Hiraben Umedbhai Patel and Ashok Umedbhai Patel by order dated 25/1/2001 Exhibit 104 and vide Exhibit 200, Zamzam None Trading Association, Ahmedabad and Chairman of AUDA. Thereafter, party in person has produced number of documents before Civil Court, Mirzapur. The copy of plaint in respect to Spl Civil Suit No. 2959/2002 pending before City Civil Court, Bhadra where party is Shushilaben Umedbhai Patel and Minesh Umedbhai Patel as plaintiff and Piyush @ Girish Umedbhai Patel, Shri Kasim Yasin Noor, Shah Mommaeed Noormahammed Kureshi, Farhan Yasin Noor, Sidique Ismile Mansuri, Mukhtyar Abdul Had Shaikh, Shahnawaz Noormohammed Kureshi and Ismile Ahmed Makwana are defendant.
5. Initially, application was filed u/s 278 of Indian Succession Act, 1925 which has been subsequently converted in Civil Suit No. 2959/2002 and Succession application was filed being No. 55/2001. This application was filed on 5/1/2001 presented amendment of plaint on 14/11/2003. The party in person has filed one application Annexure 4 page 71 where some relief to transfer proceeding is repeated on the basis of affidavit. The written argument was also placed on record by party in person on 30/1/2009 along with certain decisions of various High Court and Apex Court. The Schedule 1 is also annexed as Annexure 7 at page 104 which was produced in Succession application No. 55/2001 and copy of 7/12 form and also affidavit in rejoinder by party in person on record dated 6/3/2009. One additional affidavit is also filed by party in person on 10.2.2009. The amended application of Civil Suit No. 2959/2002 also produced on record where defendan
