IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 OP(C).No. 2712 of 2011(O) ------------------------------------- [O.P.(T).NO.43/2011 OF DISTRICT COURT, WAYANAD, O.P.NO.9/2005 OF SUB COURT, SULTHAN BATHERY] .................... PETITIONER: ------------------- K.PHOULAD, S/O.N.ABDUL KHADER, PROPRIETOR, N.A.TRADING COMPANY, B.STREET, MANANTHAVADY, WAYANAD DISTRICT. BY ADV. SRI.M.P.ASHOK KUMAR. RESPONDENT: ---------------------- BHARATH SANCHAR NIGAM LIMITED, REP. BY ITS GENERAL MANAGER, MARKETING CELL, MOBILE SERVICES, BHARATH SANCHAR NIGAM LIMITED, KERALA TELECOMMUNICATIONS, LUKE'S LANE, NEAR CPO, THIRUVANANTHAPURAM, PIN: 695 001. BY SRI.MATHEWS K.PHILIP,S.C, B.S.N.L. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2712/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE AWARD DTD. 08/07/2005 PASSED BY THE ARBITRATOR. EXT.P.2: COPY OF THE O.P.9/05 BEFORE THE SUB COURT, SULTHAN BATHERY. EXT.P.3: COPY OF THE OBJECTION FILED BY THE PETITIONER IN O.P.9/05 BEFORE THE SUB COURT, SULTHAN BATHERY. EXT.P.4: COPY OF THE O.P(T) 43/11 FILED BEFORE THE DISTRICT COURT, WAYANAD. EXT.P.5: COPY OF THE OBJECTION FILED BY THE PETITIONER IN OP(T).43/11 BEFORE THE DISTRICT COURT, WAYANAD. EXT.P.6: COPY OF THE ORDER IN O.P.43/11 DTD. 06/04/2011 OF THE DISTRICT JUDGE, WAYANAD. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE pvr. “C.R.” THOMAS P.JOSEPH, J. ==================================== O.P(C) No.2712 of 2011 ==================================== Dated this the 29th day of August, 2011 J U D G M E N T Question urged for a decision in this proceeding is whether a proceeding instituted under the Arbitration and Conciliation Act, 1996 (for short, “the Act”) in a court having no jurisdiction to entertain it could be withdrawn by the District Court in exercise of the power under Section 24 of the Code of Civil Procedure (for short, “the Code”) and try the proceedings by itself or make over the same to another court having jurisdiction to try it? 2. The Arbitrator appointed under provisions of the Act passed an award in favour of petitioner. Respondent, in challenge of that award filed O.P. No.9 of 2005 in the court of learned Sub Judge, Sulthan Bathery under Sec.34(2)(iii) of the Act on 01.10.2005. Petitioner contended that the said court has not jurisdiction to entertain a petition under Sec.34 of the Act. O.P. No.9 of 2005 remained on the file of learned Sub Judge for quite some time. While so, respondent filed Ext.P4 (O.P(T) No.43 of 2011) before learned District Judge, Wayanad, at Kalpetta under O.P(C) No.2712 of 2011 -: 2 :- Sec.24 of the Code requesting to withdraw O.P. No.9 of 2005 to that court. That petition was resisted by the petitioner contending that learned District Judge has no jurisdiction to pass an order in the matter under Sec.24 of the Code and at any rate, it is after six years that the request for transfer is made. It was contended that the only course open to the learned Sub Judge was to return the Original Petition for presentation in the court having jurisdiction to entertain it. Learned District Judge by Ext.P6, order allowed O.P. No.43 of 2011 and withdrew the case to the District Court. The said order is under challenge in this proceeding. 3. Learned counsel for petitioner has contended that learned Sub Judge, Sulthan Bathery having no jurisdiction to entertain a petition under Sec.34 of the Act, proceeding before the learned Sub Judge was without jurisdiction and hence not maintainable. In such a situation learned District Judge could not have exercised power under Sec.24 of the Code to withdraw the proceedings to the District Court. It is contended that the said power at any rate could have been exercised only by the High Court. It is also contended by learned counsel that sub- sec.(5) of Sec.24 has no application since that provision relates O.P(C) No.2712 of 2011 -: 3 :- to ‘transfer’ of a proceeding from a court having no jurisdiction to another court and does not pertain to withdrawal of the case to the District Court itself. Learned counsel has placed reliance on the decisions in Durgesh Sharma v. Jayasree ([2008] 9 SCC 648), Seema v. Jayagopal (2010 [3] KLT 878) and Neha Arun Jugadar v. Palak Diwan Ji (2011 [1] KLT 770). 4. In response it is contended by learned counsel for respondent that a proceeding under the Act is also a “proceeding” as understood in Sec.24 of the Code and hence it was within the power of the District Court to withdraw the case from a court having no jurisdiction to entertain such proceeding. Learned counsel has placed reliance on the decision of the Allahabad High Court in Shahab Uddin alias Munnan v. District judge, Muzaffarnagar & Another (AIR 2009 [NOC] Allahabad 1145). 5. So far as the power of learned Sub Judge to entertain the Original Petition under the Act is concerned, there is no dispute between the parties and having regard to the definition of “court” occurring in Sec.2(e) of the Act it has to be held that O.P(C) No.2712 of 2011 -: 4 :- the said court had no jurisdiction to entertain the Original Petition. Now the question is whether it was within the power of the District Court to withdraw the proceeding to the District Court invoking Sec.24 of the Code. 6. Section 24 of the Code deals with the general power of transfer and withdrawal to the High Court and District Court. The High Court and the District Court have concurrent power under Sec.24 of the Code. 7. Section 24 of the Code reads as under: 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 O.P(C) No.2712 of 2011 -: 5 :- same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and’- (i) try or dispose of the same, or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court form which it was withdrawn. 2. ………….. 3. ………….. (a) …………. (b) “proceeding” includes a proceeding for the execution of a decree or O.P(C) No.2712 of 2011 -: 6 :- order. 4. ……………… [(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]” Argument of learned counsel for petitioner is that power to withdraw any suit, appeal or other proceeding pending in a subordinate court and, try or dispose of the same by itself is conferred only on the High Court and not on the District Court. Further argument is that while clauses (a) and (b) of sub-sec.(1) of Sec.24 deals with ‘transfer’ and withdrawal of suits, appeal or other proceeding, sub-sec.(5) only deals with transfer and states that a suit, appeal or proceeding may be transferred under Sec.24 from a court which has no jurisdiction to try it. Precisely the argument is that at any rate sub-sec.(5) does not clothe the District Court with the power to withdraw a case from a court having no jurisdiction to the District Court itself for trial and disposal. 8. I shall refer to the decisions which learned counsel on O.P(C) No.2712 of 2011 -: 7 :- both sides have referred to. Durgesh Sharma's case (supra) dealt with the power under Secs.23 to 25 of the Code. Learned counsel for petitioner invited my attention to observations in paragraph 47 where it is stated that where several courts having jurisdiction are subordinate to the same High Court, an application for transfer may be made to, and action may be taken by the High Court to transfer a case from one court subordinate to it to any other court subordinate to that High court. Likewise where such courts are subordinate an application may be made and action may be taken by the High Court transferring a case from one court subordinate to that court. The said observations do not affect power of the High Court or the District Court to transfer a case from a court having no jurisdiction in view of sub- sec(5) of Sec.24 of the Code. In paragraph 23 of the said decision the Supreme Court has referred to the cleavage of opinion (prior to introduction of sub-sec.(5) of Sec.24) among various High Courts as to the general power of the High Court to direct transfer of a case from a court having no jurisdiction. The Law Commission came with its proposal and in the statement of Objects and Reasons for amendment of Sec.24 of the Code, the Law Commission said, O.P(C) No.2712 of 2011 -: 8 :- “There is a conflict of decision with regard to the question whether Section 24 applies in relation to a transfer of a suit from a court which has no jurisdiction to try it. The High court of Andhra Pradesh has held that the language of Section 24 is very wide and there are no restrictions or impediments in the way of the High Court exercising the power of transfer merely because there is a dispute regarding jurisdiction. Some other High courts have taken a contrary view. It is being clarified that a case may be transferred from a court which has no jurisdiction to try it”. 9. The Supreme Court pointed out in paragraph 26 of the decision (supra) that the newly added sub-sec.(5) of Sec.24 of the Code clarifies that a suit or proceeding can be transferred from a court which has no jurisdiction to try it. Seema's case (supra) relied on by the learned counsel for petitioner concerned the question whether after a case was decided in a wrong court when the matter came to the High court it was necessary for the O.P(C) No.2712 of 2011 -: 9 :- High Court to invoke Sec.24 and transfer the case to the proper court. That was a case where a suit which ought to have been filed before the Family Court was wrongly filed in the Sub Court and decreed. It was held that the proper course to be followed was not to order transfer of the case and that recourse could only be to Order VII Rule 10 of the Code and order return of the plaint for presentation before the proper forum. In considering that decision I must also bear in mind the decision in Sherly v. Sukumari Amma (2011 [3] KLT 200) where it was held that the Family Court gets jurisdiction to entertain a proceeding under Sec.7 of the Family Courts Act and that those cases are beyond the jurisdiction of other courts and hence a suit which the civil court has jurisdiction to try cannot be transferred to the Family Court. The other decision which learned counsel for petitioner relied on is Neha Arun Jugadar's case (supra). The Supreme Court was considering whether a petition under the Motor Vehicles Act is required to be transferred under Sec.24 of the Code. In paragraph 3 it is observed that an order of transfer of a case can be passed where both the courts, namely, transferor court as well as transferee court having jurisdiction to hear the case. I must bear in mind that while observing so, the Supreme O.P(C) No.2712 of 2011 -: 10 :- Court was not considering the implication of sub-sec.(5) of Sec.24 of the Code. The contention that a case could not be transferred from a court having no jurisdiction does violence to sub-sec.(5) of Sec.24 of the Cod which was introduced by amendment bearing in mind the cleavage of opinion between various High Courts as to the power to transfer a case from a court having no jurisdiction. In view of sub-sec.(5) of Sec.24 of the Code it is within the power of the High Court and the District Court to transfer a case from a court having no jurisdiction to try it to a court having such jurisdiction. Then the question is whether power under Sec.24 could be exercised with respect to a proceeding under Sec.34 of the Act. Clauses (a) and (b) of Sec.24 of the Code relate to suit, appeal or “other proceeding”. Sub-sec. (3)(b) of Sec.24 says that “ proceeding ” includes a proceeding for the execution of a decree or, order. The word “include” is generally used to enlarge the meaning of the words and phrases occurring in the body of the Statute. The expression “other proceeding” has been understood in Ram Chandra v. Stateof U.P. (AIR 1966 SC 1888) as “something going on in a court in relation to the adjudication of a dispute other than a suit or an appeal”. In R v. West Minister Rent Officer O.P(C) No.2712 of 2011 -: 11 :- ([1973] 3 All England Report 119) it is held: “the word “proceedings” covers any proceedings of a legal nature, even though they do not take place in court of law”. The application to a rent officer to fix fair rent was held, in that case to be a proceeding. Therefore, the expression “proceeding” referred to in Sec.24 of the Code can relate to some action going on in a court in relation to the adjudication of a dispute other than a suit or appeal. Hence a petition under Sec.34 of the Act pending in a court is a “proceeding” as understood in Sec.24 of the Code. 10. It is then argued that while clause (b) of sub-sec.(1) of Sec.24 deals with power of the High Court and the District court to “withdraw” any suit, appeal or other proceeding from a court which has no jurisdiction to try and dispose of the same, sub-sec. (5) does not use the expression “withdraw” but only states that a suit or a proceeding may be “transferred under this section from a court which has no jurisdiction to try it”. The argument is that since the expression “withdraw” is not mentioned in sub-sec.(5) O.P(C) No.2712 of 2011 -: 12 :- it is not open to the District Court to withdraw the proceeding from a court having no jurisdiction to the District Court itself and try the same. 11. To appreciate that argument it is necessary to refer to clauses (a) and (b) of sub-sec.(1) of Sec.24 of the Code which I have extracted above. Clause (a) refers to the transfer of any suit or appeal or the proceeding pending before the High Court or the District Court for trial and disposal to any court subordinate to it and competent to try or dispose of the same while clause (b) refers to withdrawal of any suit, appeal or other proceeding pending in any court subordinate to it and try or dispose of the same or transfer the same for disposal to any court subordinate to it and competent to try or dispose of the same. Under clause (b) of sub-sec.(1) of Sec.24 of the Code what is involved when the suit, appeal or other proceeding is pending in a court subordinate to the High Court or the District Court is withdrawal and transfer. It is after 'withdrawal' of the suit, appeal or other proceeding from the subordinate court that it is 'transferred' to a court having jurisdiction to try or dispose of the same. Therefore when sub-sec.(5) says that a suit or other proceeding may be transferred under the section from a court which has no O.P(C) No.2712 of 2011 -: 13 :- jurisdiction to try it, it involves withdrawal of the suit or other proceeding before it is transferred to a court having competence to try or dispose of the same. Hence merely for the reason that the expression “withdraw” is not mentioned in sub-sec.(5) of Sec.24 of the Code it cannot be contended that the District Court has no power to withdraw the suit or other proceeding from a court having no jurisdiction, to itself and try or dispose of the same. That power is implicit in sub-sec.(5) of Sec.24 of the Code. The decision in Shahab Uddin alias Munnan’s case (supra) is supportive of that view. There, the proceeding was under Sec.36 of the Act instituted in a court having no jurisdiction. It was held that District Court has power and jurisdiction to transfer the application under Sec.36 of the Act (in that case) from a court which had no jurisdiction to decide it at the first instance to a court having jurisdiction. 12. In the view of the above discussion the question raised is answered as follows: “It is within the power of the District Court under Sec.24 of the Code to withdraw a proceeding under the Act pending in a court having no O.P(C) No.2712 of 2011 -: 14 :- jurisdiction to the District court and try or dispose of the same”. 13. The next question is whether on the facts of the case learned District Judge was justified in ordering withdrawal of the case to the District Court for trial and disposal. Learned counsel for petitioner submitted that the Original Petition was filed in the Sub Court on 01.10.2005 and for the last six years the case was pending in a court having no jurisdiction notwithstanding the objection raised by the petitioner and in the circumstances withdrawal of the case affected the right of petitioner. Learned counsel for respondent submitted that the original petition was intended to be filed in the District Court but there was an oral direction to present the same in the Sub Court and accordingly it happened that the proceeding was instituted in the Sub Court, Sulthan Bathery. 14. I found that it is within the power of the District Court to withdraw the proceeding from a court which had no jurisdiction to entertain, try and dispose of the said proceeding. Having regard to the circumstances stated, I am not inclined to think that the District Court should have refused to exercise the power O.P(C) No.2712 of 2011 -: 15 :- conferred on it under Sec.24 of the Code for the mere reason that the proceeding was pending in the court having no jurisdiction since 2005 onwards. Since the order suffers from no infirmity or illegality, I am not inclined to think that this Court should interfere under Article 227 of the Constitution with the said order. I find no reason to interfere. Original Petition is dismissed. THOMAS P. JOSEPH, JUDGE. vsv