Jurisdiction of Civil Court to transfer cases u/s 24, CPC.

This application is filed under section 24, Civil Procedure Code, for the transfer of the proceedings in M.C.No. 8 of 1957 on the file of the District Munsif’s Court, Periakulam, to the Sub-Court, Dindigul, to be tried along with O.S. N0.35 of 1958 on its file. The petitioners who are the sons of the 3rd respondent, and respondents 1 and 2 are descended from a common ancestor. The former claimed that they were members of a joint Hindu family with the latter. Respondents 1 and 2, however, state that the 3rd respondent had been taken in adoption by a divided paternal grand uncle of theirs, and that there is no such coparcenary as claimed. Some time ago disputes ensued between the parties in regard to the possession of certain properties, and they assumed such proportions as to threaten a breach of the peace. The police, thereupon, initiated proceedings under section 145, Criminal Procedure Code, against both the parties before the Executive First Class Magistrate, Usilampatti, in M.C. No. 8 of 1957. The Magistrate attached the properties and forbade either party from entering them. After examining a few witnesses, the Magistrate felt that the matter was one where the questions involved could only be decided by a civil Court, and, accordingly, by his order, dated 1st December, 1958, directed the parties to establish their respective rights in a suit. Even before the disposal of that case, the petitioners had instituted O S. No. 35 of 1958 in the Sub-Court, Dindigul, for partition of the disputed properties.

While that suit was pending, there was a change in the personnel of the Executive First Class Magistrate, Usilampatti. The Magistrate who succeeded the one who passed the order, dated 1st December, 1958, was of the view that the disposal of the proceedings under section 145, Criminal Procedure Code was not in accordance with the Code of Criminal Procedure as amended: he, therefore, revived the case. Finding however, that it was difficult to decide as to which of the parties was in possession on the material date, he referred the matter to the District Munsif, Periakulam, for a decision under section 146, Criminal Procedure Code. This order was passed on 6th Novermber, 1959.

In the present petition, it is prayed that M.C No. 8 of 1957, now pending decision in the District Munsif’s Court, Periakulam, should be transferred to the Sub-Court, Dindigul, to be tried along with O.S. No. 35 of 1958.

There can be no doubt that, having regard to the questions involved, it would be convenient if not desirable that both should be tried together. The only question to be considered is whether it would be competent to a superior Court, acting under section 24, Civil Procedure Code, to transfer M.C. No. 8 of 1958 to a civil Court other than the one to which the Magistrate referrred the case.

Before applying to this Court, the petitioners approached the District Judge, Madurai, for a transfer of the proceedings so as to enable a disposal of the two matters by the same Court. The learned District Judge, while he realised that it would be convenient to have both the matters disposed of together, declined to grant the application, as in his view section 24, Civil Procedure Code, would not authorise the transfer of a quasi criminal proceeding, namely, the reference under section 146, Criminal Procedure Code, from the Court, in which it was pending to another civil Court.

Section 24, Civil Procedure Code, confers a power on the High Court, and the District Court to transfer any suit, appeal or other proceeding pending in a Subordinate Court, to another Court subordinate to it, which would be competent to try and dispose of the matter. The competence referred to in the section is with reference to pecuniary and not territorial jurisdiction. In a case where a dispute relating to possession is referred under section 146, Criminal Procedure Code, to a civil Court, no question of valuation might perhaps arise. Therefore, if it were found that the case w