1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD MISCELLANEOUS CIVIL APPLICATION NO. 8 OF 2009 Badridas s/o Banshidas Bairagi, deceased and others ...Petitioners VERSUS The State of Maharashtra & ors. ...Respondents ..... Shri S.S.Choudhary, advocate for the petitioner Shri S.R.Kedar holding for Shri Vivek Bhavthankar, advocate for respondent no.3 Shri M.L.Dharashive, A.G.P. For respondent nos. 1, 2 and 4. ..... CORAM : SHRIHARI P. DAVARE, J. DATED : 6 th July, 2009. ORAL ORDER : 1 Perused. 2 The petitioner has filed the present petition requesting 2 to transfer Regular Civil Suit No. 266 of 1978 filed by the petitioners pending before Civil Judge, Senior Division, Beed to the court of Civil Judge, Senior Division, Ambajogai for trial according to law, under Section 24 of the Code of Civil Procedure. 3 The petitioners contend that they filed Regular Civil Suit No. 266 of 1978 before Civil Judge, Senior Division, Beed for perpetual injunction. However, the same was dismissed. Hence, the petitioners herein preferred Regular Civil Appeal against the said judgment and decree before the District Court, Beed. The said appeal was partly allowed and case was remanded back to the court of Civil Judge, Senior Division, Beed for disposal, in accordance with law. However, the judgment and decree passed by the District Judge, Beed in the said appeal was challenged by filing Second Appeal before this court. The said Second Appeal came to be dismissed on the ground that L.Rs. of applicant nos. 1 to 5 were brought on record within the prescribed period of limitation. Hence, Civil Application No. 7684 of 2008 was filed in Civil Application/Review Petition St. No.12587 of 2008. However, the said Civil Application No. 7684 of 2008 in Review Application St. No. 12587 of 2008 in Second Appeal No. 158 of 1998 were heard together by this court and this court disposed of Civil Application No. 7684 of 2008 holding that Civil Application/Review Petition St. No. 12587 of 2008 did not survive. 3 Resultantly, the remand order passed by the District Court, Beed was maintained and accordingly the matter was sent to the court of Civil Judge, Senior Division, Beed. 4 The petitioners contend that they filed an application in Regular Civil Suit No. 266 of 1978 at Exh.140 before Civil Judge, Senior Division, Beed requesting to transfer the said case to the court of Civil Judge, Senior Division,Ambajogai, contending that the applicants and non-applicants belong to Ambajogai as well as the property in dispute also is situated at Ambajogai and also contending that applicant no.6 – Chagandas s/o Mohandas Bairagi is an old and aged person. 5 The learned Civil Judge, Senior Division, Beed referred the said application for transfer to the District Judge, Beed. However, thereafter the communication was made by the Registrar of District Court on 21.2.2009 stating, “that since it was decided at Beed court cannot seek transfer”. A copy of the said order is annexed with the present compilation at Exh.A-3. 6 The petitioners submit that when Regular Civil Suit No. 266 of 1978 was filed in the year 1978 before the Civil Judge, Senior Division, Beed, there was no court of Civil Judge, Senior Division at Ambajogai at that time. Now the court of Civil Judge, 4 Senior Division is established at Ambajogai as well as the property is situated at Ambajogai, parties also reside at Ambajogai and, therefore, it is submitted that the said suit be transferred to the court of Civil Judge, Senior Division, Ambajogai under Section 24 of the Code of Civil Procedure. 7 Heard the learned respective counsel for the parties. 8 At the out set Regular Civil Suit No. 268 of 1978 was instituted by the petitioners herein before the court of Civil Judge, Senior Division, Beed, as mentioned herein above. It was dismissed and the said judgment was challenged in the appeal before the District Judge, Beed and the matter came to be remanded to the court of Civil Judge, Senior Division, Beed for disposal in accordance with law. True it is that since the Civil Judge, Senior Division, Beed has decided the said suit, after remand, the said suit was again sent back to the same court for disposal in accordance with law. However, on the afore said background, the learned counsel for the petitioners pointed out that when the petitioner filed Regular Civil Suit No. 266 of 1978, there was no court of Civil Judge, Senior Division, at Ambajogai and, therefore, the petitioners were required to file the said suit before the Civil Judge, Senior Division, Beed. Subsequently the court of Civil Judge, Senior Division, came to be established at 5 Ambajogai and, therefore, in view of the said subsequent development, the said suit is required to be transferred to the court Civil Judge, Senior Division, Ambajogai. 9 Besides, my attention was invited to the fact that the parties also belong to Ambajogai as well as the property in dispute is also situated at Ambajogai. Hence, in view of the said position, it is convenient for the parties to attend the court of Civil Judge, Senior Division, Ambajogai, if the afore said suit is transferred to the said court. Moreover, since the property is also situated at Ambajogai, it would be appropriate to transfer the afore said suit to the court of Civil Judge, Senior Division, Ambajogai for disposal, in accordance with law. 10 In the circumstances, it is necessary to exercise the powers under Section 24 of the Code of Civil Procedure and to transfer Regular Civil Suit No. 266 of 1978 from the court of Civil Judge, Senior Division, Beed to the court of Civil Judge, Senior Division, Ambajogai for the purpose of trial and disposal in accordance with law in the interest of justice. 11 In the result, present Miscellaneous Civil Application No. 8 of 2009 is allowed in terms of prayer clause ‘B’ thereof and it is directed that Regular Civil Suit No. 266 of 1978 pending before 6 the court of Civil Judge, Senior Division, Beed be withdrawn from the said court and be transferred to the court of Civil Judge, Senior Division, Ambajogai for the purpose of trial and disposal in accordance with law, under Section 24 of the Code of Civil Procedure. In the circumstances, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) dbm/mca8.09