IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY EIGHTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.6183 of 2009 Between: Smt. Medisetty Jayasri and another. ... PETITIONERS AND Taste Hotels Private Limited. ...RESPONDENT Counsel for the Petitioners : MR. M.V.S. SURESH KUMAR Counsel for the Respondent: MR. Y.V. RAVI PRASAD The Court made the following: ORDER: This revision is preferred by the respondents in Tr.OP.No.69 of 2009 on the file of the District Judge, Ongole dated 04.12.2009. The petitioners are plaintiffs in O.S.No.4 of 2008, which is filed by them against the respondent herein, before the Additional Senior Civil Judge, Ongole. Under the impugned order dated 04.12.2009 the said suit is now transferred to the Court of VII Additional District Judge, Ongole. 2. Facts, in brief, are as follows: (a) The petitioners herein are landlords while the respondent herein is their tenant. Allegedly, under an unregistered lease deed dated 16.09.2005, the respondent herein was inducted into the suit schedule property and later the respondent executed a registered lease deed dated 13.11.2006. It appears that there were disputes between the parties, which led to the respondent sending a registered notice dated 06.11.2007 to the petitioners together with cheques, which was, however, returned undelivered for want of door number. The said registered notice was again sent by the respondent and ultimately served on the petitioners on 21.12.2007. Meanwhile, a notice of termination of tenancy dated 14.12.2007 was sent by the petitioners through their lawyer, which was replied by the respondent under reply notices dated 17.12.2007 and 18.01.2008. However, the petitioners filed O.S.No.4 of 2008, inter alia, seeking relief of eviction and other reliefs. While filing the written statement, the respondent herein filed a counter claim for Rs.21,09,000/-, which was, however, returned by the learned Additional Senior Civil Judge, Ongole, on the point of pecuniary jurisdiction. Thereupon, the respondent represented the counter claim before the District Judge, but as no suit was pending before the District Judge’s Court, the counter claim was returned on 19.08.2009. It was again represented by the respondent before the same Additional Senior Civil Judge on 03.09.2009 and once again returned on 07.09.2009 on the ground that it exceeds pecuniary limits of the jurisdiction of the Senior Civil Judge. (b) Accordingly, the respondent filed Tr.O.P.No.69 of 2009 seeking the learned District Judge, to withdraw the suit O.S.No.4 of 2008 from the file of the Additional Senior Civil Judge, Ongole and transfer it to the District Court, Ongole to try along with the counter claim. The petitioners herein filed a counter resisting the said transfer application on various grounds including that the unregistered lease deed cannot be looked into and is inadmissible and that counter claim has no basis and that when the suit for eviction is pending before the competent Court there is no reason to transfer it to the District Court to enable the respondent to file counter claim. The petitioners also contended that the attempt of the respondent is only to delay the disposal of eviction suit by resorting to the said transfer application including intention to delay I.A.No.42 of 2008 filed by the petitioners under Section 15- A of the Code of Civil Procedure, 1908 requiring the respondent to deposit arrears of rent. (c) Leaned District Judge, on consideration of the said transfer application, was of the view that to avoid multiplicity of proceedings and needless protraction of litigation, it would be just and proper to withdraw the petitioner’s suit O.S.No.4 of 2008 from the Court of Additional Senior Civil Judge, Ongole and transfer it to the learned VII Additional District Judge’s Court, Ongole, for disposal in accordance with law. The said order is questioned by the petitioners in the present revision. 2. During the hearing, the learned counsel for the petitioners has placed reliance upon the proviso to Order 8 Rule 6-A CPC to contend that no counter claim could have been filed by the respondent as such counter claim shall not exceed the pecuniary limits of the jurisdiction of the Court where it is filed. Learned counsel submits that the suit filed by the petitioners was perfectly maintainable and within the jurisdiction of the learned Senior Civil Judge and no ground for transfer existed except that the respondent wanted to file a counter claim, which was beyond the jurisdiction of the learned Senior Civil Judge. He, therefore, submits that the said counter claim was rightly returned more than once by the Court of Senior Civil Judge and the said counter claim also could not have been entertained by the District Court, as no suit was pending before the District Court. He, further, submits that if at all the respondent is very keen of raising a counter claim against the petitioners; there is no impediment for the respondent to file a separate suit. The filing of transfer OP by the respondent is, therefore, not bonafide and it is resorted to only for the purpose of enabling the respondent to file his counter claim. The learned District Judge, therefore, committed error in ordering the transfer when no ground exists to support the said application for transfer. 3. Learned counsel relied upon a Division Bench decision of this Court in MUNNANGI RAMAKRISHNA RAO v. VANAKURU VENKATA SIVA RAMAKRISHA PRASAD[1] in support of his contention that this civil revision petition is maintainable against the order of transfer under the amended provision of Section 115 as held by the Division Bench in the above decision. Another unreported decision of this Court in AKBER v. T. VENKATA RANGAIAH (CRP.No.3072 of 2005 dated 06.07.2005) is also relied upon for the proposition that under the proviso to sub-rule (1) of Rule 6- A of Order 8 CPC if the counter claim exceeds the pecuniary jurisdiction of the Court, the same cannot be maintained. 4. Learned counsel for the respondent, however, submits that the learned Senior Civil Judge has taken a pragmatic view of the matter and in order to avoid multiplicity of proceedings has rightly withdrawn the suit of the petitioners from the Court of Senior Civil Judge and transferred it to the Court of District Judge. He submits that no prejudice is caused to the petitioner by the said order of transfer and on the contrary, the said order saves filing of one more suit by the respondent and filing a further application for transfer of the suit for joint trial of petitioners’ suit with respondent’s suit and the said multiplicity can be avoided if the petitioners’ suit is tried by the District Court where the respondent also gets an opportunity to file counter claim, which was not entertained by the learned Senior Civil Judge’s Court. 5. On the basis of above, the following points arise for consideration in this revision: 1. Whether this revision is maintainable under Section 115 CPC? 2. If so, whether the impugned order is liable to be interfered with under revisional jurisdiction of this Court? 6. The jurisdiction of this Court under Section 115 CPC is invoked by the petitioners against the order of transfer impugned herein. I had entertained a doubt as to whether the order of transfer can be said to be a case decided under Section 115(1) CPC in view of the ratio of the decision of the Supreme Court in ASRUMATI DEVI v. RUPENDRA DEB[2]. In the above decision, the Supreme Court considered as to whether an order of transfer can be said to be a ‘judgment’ under the Letters Patent and was of the opinion that since rights of the parties are not decided, such order of transfer would not amount to judgment. The said ratio of the above decision would also apply to the words ‘case decided’ under sub-clause (1) of Section 115 CPC, particularly, in the light of the explanation thereof. For the sake of convenience Section 115(1) CPC together with explanation is extracted hereunder: 115.Revision. – (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears – (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Proviso… (2)… (3)… Explanation. – In this section, the expression, “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. 7. Learned counsel for the petitioner has relied upon a Division Bench judgment of this Court in MUNNANGI RAMAKRISHNA RAO’s case (1 supra) wherein it is held that the revision petition is maintainable. 8. With great respect, the decision of the Supreme Court in ASRUMATI DEVI’s case (2 supra) was not placed before the Division Bench of this Court nor the Division Bench had an occasion to consider as to whether the order of transfer would amount to ‘case decided’ under Section 115(1) CPC and the consequential scope for interference in a revisional jurisdiction. Thus, though I am not satisfied with respect to the said aspect of the maintainability of CRP, I have also considered this revision on merits under point No.2 framed above. In view of my conclusions, as detailed, while answering point No.2 arising in this revision, I am of the view that point No.1 does not require to be finally answered on the facts and circumstances of this case, as revision petition can be decided on the basis of the conclusions reached on point No.2. 9. So far as the second point framed, as above, is concerned, it is, no doubt, true that the respondent could not have filed a counter claim as it exceeded the pecuniary jurisdiction of the Senior Civil Judge’s Court, the same was, therefore, rightly returned by the said Court. It is relevant to extract Section 24(1)(a)(b) of CPC 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 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. 10. In view of the above, it cannot be disputed that this Court or the District Court, which exercises concurrent jurisdiction, any suit, appeal or other proceeding pending trial or disposal before any Court subordinate to it can be withdrawn for trying and disposing of the same or for transferring the same for trial or disposal of the same to any Court subordinate to it, which is competent. The impugned order shows that the learned District Judge was conscious of the fact that even if this transfer petition is disallowed, the respondent can always file a suit, which is subject matter of the counter claim and such a suit will invariably have to be instituted in a Court, which has pecuniary jurisdiction viz. District Court. In such an event, therefore, the respondent’s suit would be before the District Court while the petitioners’ suit will remain in the Senior Civil Judge’s Court and another transfer application will have to be moved for consolidation of both the suits and invariably the petitioners’ suit, which is in a lower jurisdiction will have to be transferred to the District Court, which has higher jurisdiction. The learned District Judge, therefore, was of the opinion that in order to avoid all this multiplicity of proceedings and needless protraction of litigation, the order of transfer would subserve the ends of justice and accordingly, has withdrawn the petitioners’ suit from the Senior Civil Judge’s Court to be tried by the learned VII Additional District Judge’s Court. 11. It is well settled that rules of procedure are handmade and are intended to subserve the end of justice and are not to be interpreted so as to raise technicalities to defeat the object of the provision. As mentioned above, even without the counter claim by the respondent, even on administrative side, the suit of the petitioners pending before the Senior Civil Judge’s Court could have always been withdrawn and tried and disposed of by the superior jurisdiction viz. District Court. The transferee Court also is at same place, in this case. By the impugned order, it cannot be said that any prejudice is caused to the petitioners. Under the revisional jurisdiction, therefore, I am not inclined to interfere with the impugned order. 12. So far as the apprehension of the petitioners with regard to delay and protraction by the respondent is concerned, the same can be redressed by directing the transferee Court to expeditiously hear and dispose of the suit O.S.No.4 of 2008 transferred to it under the impugned order. Since the disposal of the suit itself would involve sometime, in the mean while, the transferee Court shall hear and decide the interlocutory application I.A.No.42 of 2008 filed by the petitioners and said to be pending before the original Court, as expeditiously as possible. Subject to the above directions, the civil revision petition is dismissed. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J April 28, 2010 DSK [1] 2003 (4) ALD 56 [2] AIR 1953 SC 198