IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.917 of 2008 SULTAN ALAM Versus AMIRUDDIN ----------- 3 8/7/2008 Heard counsel for the defendant petitioner. Petitioner is aggrieved by the order dated 17.1.2008, whereby and whereunder, the District Judge, Purnea has transferred the eviction suit No. 1 of 2007 from the Court of Munsif-II Kishanganj to the court of Sub.Judge-I, Kishanganj where Title Suit No. 18 of 2007 filed by the defendant-tenant was pending. Counsel for the petitioner placing reliance on section 24 of the Code of Civil Procedure (C.P.C.) has submitted that the impugned order has been passed in complete violation of the provisions made thereunder, in as much as, no notice was given to the petitioner nor he was heard before passing the said order. He, therefore, stressed on this aspect of the order which is not only bad in law but also against the mandate of law under section 24 of the Act. The said submission of the counsel for the petitioner on the first bela………….. appears to be attraction on a deeper probe lacks merit inasmuch as under section 24 C.P.C. the District Judge and the High Court has also been vested power to exercise such power of transfer suo-motu and without notice to the parties, which is very clear from the wordings of section 24 C.P.C., providing interalia- 2 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 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to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn. (underlining by this court for emphasis) That being so, this Court would hold that the procedure adopted by the District Judge in transferring the eviction suit without notice and/or affording opportunity of hearing to the petitioner is in keeping with the provisions of section 24 of the Act. Moreover on examining the ground of such transfer, this court would also find that the eviction suit filed by the plaintiff/opposite party is in respect of the same premises for which the petitioner, the tenant- 3 defendant in the eviction suit has filed his independent suit for Specific Performance of contract claiming that there was a inter-party agreement between the petitioner and the opposite party. The submission of the learned Counsel for the petitioner that the area of the suit property of the eviction suit is much smaller, whereas, suit filed by the petitioner for specific performance of contract is much bigger, and therefore, the District Judge on merit was not justified in transferring the said eviction suit to the court in the session of the suit scission of the suit for specific performance is to be only noticed for its being rejected. In the opinion of this Court, if the suit property, the house in question involved in eviction suit is also included in the title suit filed by the petitioner claiming specific performance of contract for any bigger area between the same parties, i.e, the petitioner and the defendant-opposite party, the court below has correctly exercised its discretion to transfer the eviction suit to the court of appropriate pecuniary jurisdiction which cannot be said to be vitiated on any account. Since the petitioner in capacity of defendant-tenant has set up his defence in eviction suit the basis of agreement for sale and seeks to enforce the same through a suit of specific performance of contract filed by him, for the same premises, the District Judge had rightly exercised his jurisdiction as vested in him under section 24 of C.P.C. which in 4 effect would lead to analogous hearing of the two suits involving the same premises avoiding the possibility of two conflicting result. It has to be kept in mind that upon acquiring knowledge of the aforesaid admitted facts, the District Judge could have exercised such power of transfer suo- moto without issuing notice to the petitioner. . This Court appreciating the aforesaid approach of the District Judge while taking into consideration the correctness of the order and the conclusion reached him would not interfere with such discretion exercised by him in the impugned order. In the present case, when the suit for eviction for the same house which is also subject matter of title suit filed by the petitioner was pending, the court below has committed no illegality much less any jurisdictional error in transferring the suit and directing hearing of both the suits by the court having pecuniary jurisdiction to try and decide both the cases. Consequently, there is no merit in this application and accordingly the same is dismissed. ( Mihir Kumar Jha, J.) Abhay Kumar