ivil Appeal No 2597 of 1988
From the Judgment and Order dated 1731988 of the Calcutta High Court in Matter No 2462 of 1987
Soli J Sorabji R Mahapatra BP Singh and LP Agarwala for the Appellant
SK Kapoor section Dube Chatterji and Mrs Indra Sawhney for the Respondent
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
Special leave granted
The appeal is disposed of by the judgment herein
On or about 7th August 1963 Jayshree Textiles  Industries Ltd hereinafter called the Jayshree  was inducted as a tenant in respect of a godown in Calcutta on groundfloor at a monthly rent of Rs 151 per month payable according to the English calendar month we
f 18 1963 exclusive of electric charges
Such induction was by the predecessor in title of the present appellant
The said rent of Rs151 pm was later enhanced from time to time and the last rent was Rs225 pm
On or about 21st July 1975 the High Court at Calcutta in Company Petition No 16176 connected with company application No 7076 filed by the Jayshree approved the PG NO 207 scheme of amalgamation whereby the Jayshree merged in the respondent Company
It is alleged that on or about 4th July 1985 the appellant for the first time came to know that the said godown was in occupation of Indian Rayon Corporation Ltd and hence a notice to quit was issued
On or about 11th July 1985 the respondent by its letter intimated the appellant
that Jayshree was amalgamated with the respondent in accordance with the scheme sanctioned by the High Court at Calcutta on 21st July 1976
On 29th August 1985 a notice under Section 106 of the Transfer of Property Act read with Section l3d of the WB Premises Tenancy Act 1956 hereinafter called the Act  to quit vacate and hand over vacant possession on the last date of the following monthwas issued to Jayshree
Thereafter on lst December 1985 the appellant filed a suit for eviction in the City Civil Court at Calcutta against the Jayshree and the respondent herein
On 25th March 1986 the respondent filed a Title Suit No 54586 under Order 391 and 2 of the Civil Procedure Code praying for temporary injunction restraining the appellant from disconnecting electricity in the said premises
It is alleged and was also alleged before the High Court that the defendant No 2 in the suit in the City Civil Court took 15 adjournments to file written statement between March 1986 to May 1987
On about 6th July 1987 the appellant filed an application under Clause 13 of the Letters Patent in the High Court at Calcutta praying for transfer of the two suits on the ground that the respondent had adopted dilatory tactics and had taken several adjournments and
furthers that the original records relating to amalgamation are available in the High Court
Rule nisi was issued by the High Court
On 10th October 1987 the High Court passed the following order The Court By consent of the parties this application for transfer of the suit under Clause 13 of the Letters Patent is treated as on days  list and is disposed of by the following order By consent of the parties the title suit being Title Suit No 345 of 1986 between Indian Rayon Corporation Ltd and Abhay Singh Surana pending before the learned Judge s bench in the City Civil Court and the ejectment suit being Ejectment Suit No 1088 of 1985 between Abhay Singh Surana and Jayshree Textiles  Industries Ltd and another pending in the City Civil Court are removed and transferred to this PG NO 208 Court and to be entertained and tried by this Court in its extraordinary original civil jurisdiction the records be transferred to this Court by 16th September 1987
The Registrar Original Side shall communicate order to the Registrar City Civil Court
If necessary at the cost of the petitioner a special messenger is to be deputed for the purpose of transfer of the records from the City Civil Court to this Court
Let the two suits appear in the for settlement on 17th September 1987
 It appears that the suits appeared before the learned Judge upon mentioning on 15th December 1987
It was represented that the suits were transferred to the High Court only on the understanding that the suits would be settled
It was further represented that the effort settle the suits had failed and hence the learned Single judge of the High Court fixed a date for hearing of the two suits
On 17th February 1988 the respondent filed an application before the learned Trial Judge in Calcutta for recalling the order of transfer dated 10101987
On 17th March 1987 the court passed the following order The Court It appears that on 10th September 1987 an order was passed directing transfer of the suit to this Court so that the parties could settle the matter in this Court
It has been stated by Mr Ranjan Dev Advocate that there is no possibility of settlement and the suit should be heard
In that view of the matter let the suit be heard by the appropriate Court
The order dated 10th September 1987 is hereby recalled
Let there also be an order in terms of prayer b of the petition
Since the suit is being re trans ferred to the City Civil Court this Court cannot pass any order as to the prayers made for deposit of rent
Liberty is given to the parties to make an appropriate application before the appropriate Court for such a direction
 Aggrieved thereby the petitioner had filed a special leave petition and leave was granted herein
That is howthis appeal is here
In order to appreciate the contentions urged in this case it is imperative to refer to Clause 13 of the Letters Patent of 1865 of the High Court which reads as follows And we do further ordain that the said High Court of Judicature at Fort William in Bengal shall have power to PG NO 209 remove and to tr and determine as a Court of extra ordinary original jurisdiction of any court whether within or without the Bengal Division of the Presidency of Fort William
subject to its superintendence
when the said High Court shall think proper to do so either on the agreement of thethe parties to that effect or forr purposes of justice
the reasons for so doing being recorded on the proceeding of the said High Court
 The aforesaid clause has been the subJect matter of various adjudications and interpretations by the High Court
It enables the High Court to exercise the extraordinary  original civil jurisdiction
The Letters Patent contemplates two contingencies for the High Court to exercise extraordinary jurisdiction
namely
on agreement of the parties to that effect
the suits be transferred and secondly for the purpose of justice
It further stipulates that the reasons for so doing to be recorded on the proceedings in the High Court
In this case
apparently the suits were transferred by agreement of the parties
There is
however great deal of difference as to what that agreement was
On behalf of the appellant it is contended that there was simply an agreement to have the two suits transferred to the High Court for quick and expeditious disposal
It was further asserted that in view of the long delay in filling the written statements it was therefore advisable to have the suits disposed by the High Court
On the other hand it is seriously contended that the agreement was that the suits would be settled in the High Court
It appears that some such representations had been made to the learned Judge that the suits would be settled
This however
the appellant disputes
The suits have been transferred for settlement
As the agreement to settle the suits has not fructified the respondent does not want the suits to be tried in the High Court
The appellant states that there was no such agreement that the suits would be settled
There was undoubtedly a possibility for the suits being settled and the counsel for the appellant stated that the suits could more easily be settled in the High Court
On the basis that there was some such kind of agreement and it is desirable that the suits should be tried by an appropriate Court having jurisdiction the High Court has remitted the suits back to the City Civil Court
There is no doubt that the City Civil Court is the appropriate Court and that there existed the agreement which as recorded in the order of the Court does not indicate that it was on the basis that the suits would be settled
There PG NO 210 are factors indicating that the purpose of justice would be met if the suits are tried in the High Court
Undoubtedly the written statement has been long delayed in the suit in 1985 and the same has not yet been filed
The disposal ot the suits by the High Court would serve the purpose of justice
It would shorten litigation in the sense that there would be lesser number of appeals to the higher Court and the possibility of settlement is there in the High Court more than anywhere else
Suits are likely to be more expeditiously disposed of under the supervision of the High Court Judge than before the learned City Civil Court or the Court subordinate to High Court
Hence even though initially the agreement to transfer might have been on the basis that the suits should be settled but the agreement to transfer was note unequivocal
The possibility of settlement might have been the motivation
But the High Court has undoubtedly for the purpose of justice rightly power to dispose of the suits and in the facts of this case in our opinion having once transferred the suits it would be just and fair and would also serve the purpose of justice that the suits should continue to be disposed of by the High Court
The purpose of justice must be determined by reference to the circumstances of each case and the balance of convenience having regard to those circumstances is one of the matters for consideration
Counsel for the respondent contended under article 136 of the Constitution that it is not an order which should be interfered with
We are unab1e to agree
It is true that the suits are at a preliminary stage but it is also true that for the purpose of justice the Court if possible must oversee the administration of justice by the different Courts and the orders passed therein by the High Courts as well as the City Civil Courts
In that view of the matter we think that the purpose of justice would be served by directing expeditious disposal of these suits by the High Court
In the premises the order of the High Court is set aside and let these two suits be heard by the High Court one after the other
The written statement as mentioned hereinbefore has not been filed
The written statement if any by the respondent may be filed within four weeks from today and further directions for expeditious disposal may be obtained from the learned Judge taking these suits
Let these suits appear before the appropriate Bench in the High Court of Calcutta
The appeal is disposed of as aforesaid
No order as to costs
NPV Appeal disposed of


Summary:
The second respondent sold the properties to the appellant in 952 and the deed of sale recited that the properties were sold free of all encumbrances
The first respondent who had obtained a mortgage decree in respect of the properties in 1935 did not take any steps to have the decree drawn up as required under the Original Side Rules of the Calcutta High Court until 1954 when she commenced proceedings for sale of the mortgaged properties
The second respondent raised the objection that the execution of the decree was barred by limitation but that was overruled by a single judge of the High Court and an appeal against that order was preferred by the second respondent
Apprehending that the second respondent might enter into a collusive arrangement with the first respondent with a view to defeat her rights the appellant made an application in the High Court under 0 22 r 10 of the Code of Civil Procedure praying that she might be substituted in the place of the second respondent or in the alternative be brought on record as additional appellant
The High Court having dismissed the application the appellant brought the present appeal Held that the application could not be sustained under 0 22 r10 of the Code of Civil Procedure because i assuming that 1288 the suit was considered as having been pending until the decree was drawn up in 954 no application was made to the Court where the suit was pending as provided in 0 22 r 10 and ii the application made to the appellate Court was also not within 0 22 r 10 as the transfer in question was made prior to the filing of the appeal and not during its pendency
The application however falls within section I46 of the Code of Civil Procedure and the appellant is entitled to be brought on record since an appeal is a proceeding within the meaning of that section and the right to file an appeal carries with it the right to continue an appeal which had been filed by the person under whom the appellant claims
Jugalkishore Sayaf vs Raw Cotton Ltd 1955 I SCR 1369 Sitharamaswami vs Lakshmi Narasimha Mad
51O and Muthia Chettiar vs Govinddoss Kyishnadoss Mad
gig relied on