IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH JUNE 2010 / 4TH ASHADHA 1932 CRP.No. 329 of 2010() --------------------- OP(TR).54/2010 of DISTRICT COURT, ALAPPUZHA .................... REVN. PETITIONER(S): PETITIONER IN C.R.P.-CR.PETITIONER IN O.P. --------------------------------------------------------------- 1. V.GOPINATHA PANICKER, S/O. VASU VAIDYAN, KRISHNA VIHAR, CMC WARD NO.4, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA, ALAPPUZHA. 2. RAJAKUMARI, W/O. GOPINATHA PANICKER, RESIDING IN -DO- -DO-. BY ADV. SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENT(S): RESPONDENT IN C.R.P.-PETITIONER IN O.P. ------------------------------------------------------ PADMINI KUNJAMMA, W/O. M.N.GOPINATH @ GOPINATHA PANICKER, SANTHI NIKETHAN, CMC V, CHERTHALA NORTH MURI, CHERTHALA NORTH VILLAGE, CHERTHALA, ALAPPUZHA. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.329 of 2010 -------------------------------------- Dated this the 25th day of June, 2010. ORDER Petitioner challenges legality and regularity of the order passed by the learned District Judge, Alappuzha withdrawing O.S.No.681 of 2007 from the court of learned Munsiff, Cherthala and transferring the same to the court of learned Additional Munsiff,Alappuzha. The reason stated by the respondent/defendant for transfer is that petitioner No.1/plaintiff No.1 is one of the senior most lawyers practicing in the courts at Cherthala. Learned District Judge was of the view after hearing counsel on both sides that there is an apprehension for the respondent as to the outcome of the case if it continued in the court at Cherthala and in the circumstances it is only just and proper that the case is withdrawn from that court and made over to the court of learned Additional Munsiff, Alappuzha. 2. When this matter came up for admission I heard learned counsel for petitioners on the maintainability of the revision petition under Section 115 of the Code of Civil Procedure (for short, “the Code”) also in view of the decision of this Court in Dr.Wilson Paul and others v. Dr.P.P.Pathrose and others (2008 (3) ILR Kerala 284) which took the view that the order passed on a transfer petition is in the nature of an interlocutory order and such an order cannot be challenged in Revision under Section 115 of the Code. CRP No.329/2010 2 Learned Judge has placed reliance on the decision in Harshad Babubhai Amin v. Pravinnaben Chandrakant Patel (AIR 2003 Gujarat 236). Reference was also made to the Full Bench decision of this Court in Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust (2005 (4) KLT 865). Learned counsel contends that the view taken by this Court in Dr.Wilson Paul and others v. Dr.P.P.Pathrose and others (supra) requires reconsideration in that learned Single Judge has taken the view that an order on a transfer petition is in the nature of an interlocutory order and hence is not revisable under Section 115 of the Code. According to the learned counsel, an order on a petition for transfer finally disposed of that proceeding and hence cannot be called an interlocutory order. It is also pointed out by learned counsel that if the order of transfer is passed by the High Court in exercise of its original jurisdiction under under Section 24 of the Code, that order is subject to an appeal to the Division Bench under Section 5 of the High Court Act which also indicated that order on a transfer petition is not an interlocutory order. Learned counsel has referred me to the decision of Full Bench in Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust and the decision in Ariamma Sachariah v. Rose Elizabeth Kurian (2004(2) KLT 988). 3. In Ariamma Sachariah v. Rose Elizabeth Kurian and Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust what the Division Bench and Full Bench of this Court considered was not , as conceded CRP No.329/2010 3 by learned counsel in all fairness revisability of an order on a transfer petition under Section 115 of the Code. This Court was considering whether an order passed by a Single Judge of this Court under Section 24 of the Code in exercise of its original jurisdiction is appealable under Section 5 of the High Court Act. Section 5 of the High Court Act permitted an appeal to a Division Bench against order of a Single Judge in exercise of original jurisdiction. Going by Section 24 of the Code, power to transfer is conferred on the District Court as well as High Court concurrently. The High Court has original jurisdiction to entertain a petition for transfer under Section 24 of the Code. What the Division Bench and Full Bench held is only that when that original jurisdiction is exercised by a Single Judge, an appeal lay to the Division Bench. Those decisions have no application to the case on hand in that, I am considering whether order passed by the learned District Judge under Section 24 of the Code allowing or declining to transfer the case is revisable under Section 115 of the Code. In fact, even the decisions of the Division Bench and Full Bench referred to by the learned counsel state that if the District Court passed an illegal order (under Section 24 of the Code) it is open to the parties to approach this Court under Article 227 of the Constitution. That is an indication that order of learned District Judge under Section 24 of the Code is not revisable under Section 115 of the Code. 4. Learned counsel tried to draw a distinction in that going by Section 115 of the Code, proviso to Sub-section (1) and the explanation concerned orders passed in the course of a suit or other proceeding and according to the learned counsel proviso and explanation only affected revisability of an CRP No.329/2010 4 interlocutory order. Learned counsel asserts that an order on a transfer petition is not interlocutory in character in which case sub-section (1) of Section 115 of the Code should govern the situation. Learned counsel contends that an order passed by a subordinate court when such court exercised a jurisdiction not vested in it by law, failed to exercise jurisdiction so vested or has exercised the jurisdiction illegally, such orders are revisable under Sub-section (1) of Section 115 of the Code. But Sub-section (1) relates to “case which has been decided by any court subordinate to High Court” . I am unable to accept the contention that a disposal of transfer petition would amount to a 'case decided' as understood in Section 115 of the Code. May be, strictly speaking an order on a petition for transfer under Section 24 of the Code is not an interlocutory order but what this Court said in Dr.Wilson Paul and others v. Dr.P.P.Pathrose and others (supra) is not that the order is interlocutory but is in the nature of an interlocutory order. The expression ‘interlocutory order’ has to be distinguished from the expression ‘in the nature of interlocutory order’ in that the order which is in the nature of interlocutory order may have all the trappings of the interlocutory order. A disposal of the petition for transfer under Section 24 of the Code does not decide the case. The case continues to be pending either in the former court or the transferee court. Therefore, learned Single Judge is right in holding the view that order on a transfer petition is in the nature of an interlocutory order and hence in so far as that order does not determine the rights of the parties involved and is interlocutory in nature, is not revisable under Section 115 of the Code. Viewed in that line, I am unable to accept the CRP No.329/2010 5 contention that decision in Dr.Wilson Paul and others v. Dr.P.P.Pathrose and others (supra) requires reconsideration. I am in agreement with the view taken by the learned Single Judge . It follows that the revision petition preferred against the order transferring the case under Section 24 of the Code is not maintainable. Resultantly, this revision petition closed without prejudice to the other remedies if any available to the petitioners to challenge the impugned order. I.A.No.1576 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks