SCA/5698/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5698 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GUJARAT STATE SOCIAL WELFARE ADVISORY BOARD & 1 - Petitioner(s) Versus ASHOKKUMAR JAYANTILAL CHAUHAN & 2 - Respondent(s) ========================================================= Appearance : MR MANOJ N POPAT for Petitioner(s) : 1 - 2. MR GIRISH K PATEL for Respondent(s) : 1, None for Respondent(s) : 2, MR. VIPUL MISTRY ASST. GOVERNMENT PLEADER for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 05/08/2008 ORAL JUDGMENT 1. Rule. Shri Girish Patel, learned advocate for the respondent No.1 and Shri Vipul Mistry, learned AGP, for the respondent No. 3 wavies service of notice of SCA/5698/2008 2/6 JUDGMENT admission on behalf of the respondents. With the consent of the learned advocate appearing for the respective parties, the matter is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners-original defendants have prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned oder passed by the learned Civil Judge, (S.D.), Palanpur below Exh. 1 in Regular Civil Suit No. 112 of 1995 rejecting the said application and not transferring the said suit to the Civil Court at Patan which would be having the territorial jurisdiction. 3. Respondent No.1 herein had instituted the Regular Civil Suit No. 112 of 1995 in the Court of learned Civil Judge (S.D.), Palanpur for declaration and consequential relief. It appears that the cause of action had arisen at Varahi, Tal: Santalpur, Dist. Banaskantha. At the relevant time, Varahi was in Tal: Santalpur, Dist. Banaskantha and, therefore, the said suit was instituted in the Court at Palanpur. It appears that subsequently new District Patan is established and all the suits came to be transferred as per the new territorial SCA/5698/2008 3/6 JUDGMENT jurisdiction, however, at the relevant time by mistake the present suit in question was not transferred to the Court of learned Civil Judge (S.D.), Patan and, therefore, petitioners submitted an application before the learned trial Court to transfer the said suit to the learned Civil Judge (S.D.), Patan. However, the said application came to be dismissed by the learned trial Court by holding that the said Court has no jurisdiction to transfer the suit from one District to another District and the said powers are only with the High Court and also on the ground that earlier the High Court has directed to treat the issue with respect to the jurisdiction as a preliminary issue. Being aggrieved with the order passed below Exh. 1 dated 27.12.2007 passed in Regular Civil Suit No. 112 of 1995, petitioners-original defendants No.1 have preferred present Special Civil Application under Article 227 of the Constitution of India. 4. Shri Popat, learned advocate appearing for the petitioners has submitted that the cause of action had arisen in Varahi which was at the relevant time in Tal: Santalpur, Dist. Banaskantha and, therefore, the said suit was instituted in the Court at Palanpur. However, subsequently as per the Government Resolution/ SCA/5698/2008 4/6 JUDGMENT Notification dated 30.7.2002 on establishment of District Patan, the said suit was required to be transferred to the Court at Patan,however by mistake the same suit was not transferred to the learned Civil Court, Patan and, therefore, it is requested to transfer the suit from learned Civil Court, Palanpur to learned Civil Court (S.D.), Patan, who have the territorial jurisdiction. 5. Shri Girish Patel, learned advocate appearing for the respondent No.1 has submitted that as earlier the application of the petitioners was dismissed and even this Court has directed to decide the question with respect to jurisdiction as preliminary issue, the learned trial Court has rightly rejected the application and the said issue is required to be decided as a preliminary issue, therefore, it is requested to dismiss the present Special Civil Application. 6. Heard the learned advocate appearing for the respective parties. It is required to be noted that the cause of action had arisen in Varahi which was in Tal: Santalpur, Dist. Banaskantha and, therefore, the aforesaid suit came to be instituted in the Court at Palanpur, however subsequently due to the establishment of new Patan District, the cases were required to be SCA/5698/2008 5/6 JUDGMENT transferred at Patan having the jurisdiction and all other cases came to be transferred as per new territorial jurisdiction. It appears that by mistake the suit in question was not transferred and therefore, application was submitted by the petitioners to transfer the said suit to the learned Civil Court, Patan having the territorial jurisdiction. It is not in dispute that as per the Notification dated 30.7.2002 on establishment of Patan District for the suit in question only the Court at Patan would have the territorial jurisdiction and, therefore, the suit in question is required to be transferred to Court of learned Civil Judge (S.D.), Patan. Now, the learned Civil Judge (S.D.) would not have any jurisdiction to decide and dispose of the suit. It is true that in earlier proceedings, this Court directed to treat the issue with respect to jurisdiction as a preliminary issue but when on the face of it, it is found that the learned Civil Court, Palanpur would not have any jurisdiction now and only the Court at Patan would have jurisdiction, the said order cannot come in the way of transferring the suit to the Court having the jurisdiction. 8. Considering the above, the Regular Civil Suit No. 112 of 1995 requires to be transferred to the Court of SCA/5698/2008 6/6 JUDGMENT learned Civil Judge (S.D.) Patan, who will have territorial jurisdiction to decide and dispose of the controversy involved in the suit. 9. For the reasons stated above, petition succeeds. It is hereby ordered to transfer the Regular Civil Suit No. 125 of 1995 pending in the Court of learned Civil Judge (S.D.) Palanpur to the learned Civil Judge (S.D.), Patan. Rule is made absolute. In the facts and circumstances of the case, there shall be no order as to cost. (M.R. SHAH, J.) kaushik