AI Structured Summary
Not yet generated for this judgment
Judgment
Ruma Pal, J.—This is an application under Clause 13 of the Letters Patent and Section 24 of the CPC for transfer of Title Suit No. 23 of 1992 (Dover Park Builders Pvt. Ltd. and Ors. v. Mahabir Prasad Jalan) pending in the Court of the 2nd Assistant District Judge at Alipore to this Court.
The suit has been filed by the Respondent No. 1 company (hereinafter referred to as the company) and the Respondents Nos. 2 to 5 (hereinafter referred to as the Plaintiffs) against the Petitioner and the Respondents 6 and 7 herein (hereinafter referred to as the Defendants Nos. 1, 2 and 3 respectively). The Plaintiffs claim to be the major shareholders of the company. The Defendants 2 and 3 are the directors of the company. The case in the plaint relates to an agreement stated to have been entered into by the Defendant No. 1 and the company by which it is alleged that the Defendant No. 1 had agreed to assign his right, title and interest in premises No. 12, Dover Park, P.S. Ballygunge (referred to as the premises) to the company on certain terms and conditions. It is further alleged in the suit that the Defendant No. 1 did not execute the deed of assignment and after obtaining a sanctioned plan surreptitiously commenced construction on the premises from February 19, 1990.
The Plaintiffs have also claimed in the alternative that the premises is and was the family dwelling house of the Plaintiff No. 2 and his family members together with the Defendant No. 1 although the Respondent No. 1 is shown as the holder of a long term lease in respect thereof. On the basis of these facts the suit was initiated in the Alipore Court for a decree for specific performance of the agreement said to have been entered into in July 1987 between the company and the Defendant No. 1 for assignment of the Defendant No. 1''s right, title and interest in the premises to the company, for a perpetual injunction restraining the Defendants from carrying out any construction work in the premises or from dealing with disposing of, selling or encumbering the premises to any person whatsoever.
A written statement was filed in the suit by the Defendant No. 1 in which the existence of the agreement has been denied. According to the Defendant No. 1, in brief, he had obtained the lease of the premises on June 1, 1966. The further case is that the Plaintiff No. 2 was residing in 14, Dover Park with his family. In 1985-86 the Defendant No. 1 decided to develop the premises and towards this end between 1986 and 1989 had the soil tested for such development, appointed architects for development of a residential complex, obtained a no objection certificate from the Competent Authority of the Calcutta Municipal Corporation within the Land Ceiling (Development) Act, 1976 as well as obtained clearance from the Department of Telecommunications and West Bengal Fire Services. The plan which was submitted for development of the premises to the Calcutta Municipal Corporation was sanctioned on April 17, 1989. Work was commenced on the premises on February 19, 1990. The Defendant No. 1 along with his family had shifted from the premises in 1991 whereafter the building on the premises was demolished.
It has been alleged that the Plaintiff Nos. 2, 3 and 4 had filed various suits and proceedings against the Defendant No. 1 in which the case of the alleged agreement had never been made out. It was also disputed that the Plaintiffs Nos. 2 to 5 had the right to file a suit in the name of the company. It was affirmed that the Defendant No. 1 had obtained a long term lease in respect of the premises from the owner and that the Defendant No. 1 had never agreed to assign his right, title and interest thereto as alleged by the Plaintiffs Nos. 2 to 5 or at all. In the written statement several earlier proceedings between the parties have been referred to in which the issues relating to the development of the premises had been raised. These were company actions as well as suits which were pending in this High Court. The Defendant No. 1 denied that the premises was the family dwelling house.
The Defendant Nos. 2 and 3 in their written statement have also disputed the claim of the Plaintiff Nos. 2 to 5 and have referred to previous proceedings pending before this Court between the parties with regard to the right to represent the company.
Before me, it is the Defendant No. 1''s case that the object of filing the suit was to defeat the Defendant No. 1''s his right to develop the premises. With this end in view, it is contended, the Plaintiffs Nos. 2 to 5 were deliberately delaying the hearing of the suit so that the validity of the sanctioned plan would expire. In support of this submission it is said that although the suit was filed on April 1, 1992, the appropriate requisites and Court fees were not put in till July 1992. An application was filed under Order 39 Rules 1 and 2 of the CPC on July 15, 1992 by the Plaintiffs but no ad interim order was passed as prayed. An exparte appeal was preferred to this Court from such refusal. On July 18, 1992 the Division Bench granted a temporary injunction till the application under Order 39 heard and disposed of by the Trial Judge. The SLP filed from this Order by the Defendant was dismissed. The application of the Respondents 2 to 5 under Order 39 was dismissed upon contest with costs on January 29, 1993. A second appeal was preferred by the Plaintiffs from this order to the appeal Court. In the meanwhile an application was made by one Marut Developers for being added as a party to the suit. The application was dismissed. A revision application was also filed before this Court on July 5, 1993 and an order of stay of further proceedings of the suit was obtained. On August 17, 1994 the second appeal preferred by the Plaintiffs from the dismissal of the application under Order 39 was disposed of. After a lengthy judgment the Appellate Court passed an order of injunction allowing the construction in the premises to be proceeded with but restraining the Defendants from creating any third party interest without the permission from the Court below. The judgment concludes with the following order:
The suit is directed to be heard out by the Learned Assistant District Judge within a period of three months from today with utmost expedition, continuing the hearing for day to day immediately after the pleadings are complete and issues are framed which must in the facts and circumstances of the present case be done within one month from this date. In case there is any impediment in the matter of early disposal of the suit, the parties would be at liberty to take appropriate steps in accordance with law.
Incidentally a SLP was filed from this order by the Plaintiffs. This was dismissed on March 31, 1995.
On September 20, 1994 the revisional application preferred by Marut Developers was withdrawn and the interim order staying further proceedings in the suit was vacated.
The three month period specified by the Appellate Court in its order dated August 17, 1994 expired in November 1994. However, the suit was not at all heard by the Lower Court during this period presumably because the order of the High Court was not made available to it. In November 1994 the Defendant No. 1 herein filed an application before the Alipore Court for disposal of the suit expeditiously in keeping with the directive of the High Court in the order dated August 17, 1994. The application was allowed on November 30, 1994 and the suit was fixed for peremptory hearing on January 2, 1995. On January 2, 1995 the Plaintiffs did not appear and the suit was dismissed for default with costs. The application for restoration made by the Plaintiff was allowed and the examination of the Plaintiff''s witnesses started on February 16, 1995.
The cross-examination of the Plaintiff No. 2 (being P.W.1) by the Defendant No. 1 took place on May 8, 1995, June 12 1995, June 23, 1995, August 8, 1995, September 4, 1995, September 12, 1995, September 20, 1995, January 8, 1996, February 1, 1996 and February 6, 1996. The cross-examination of P.W. 1 by the Defendant Nos. 2 and 3 commenced on February 8, 1996 and continued on February 15, 1996 February 28, 1996, March 8, 1996, April 9, 1996, April 26, 1996 and was concluded on May 6, 1996. On or about seven of these occasions after the cross-examination of the P.W. 1 had been done in part a prayer was made for adjournment by the Defendant no, 1. Similar prayers were made by Defendant Nos. 2 to 3 after cross-examination in part on three occasions. On June 3, 1996 the Plaintiffs 2 to 4 also asked for adjournment. On June 19, 1996 they produced a second witness being P.W. 2. He was examined and cross-examined on the same date. On June 19, 1996 an application was made by the Plaintiffs Nos. 2 to 4 in the suit for re-examination of the Plaintiff No. 2 (W.P.1). This was objected to by the Defendants.
On August 2, 1996 the Plaintiffs produced a third witness (P.W. 3) whose evidence was concluded on the same date. On August 20, 1994 the evidence of the Plaintiffs was closed as no one appeared on behalf of the Plaintiffs. The examination of the Defendant No. 1 began.
On August 27, 1996 the Plaintiffs 2 to 4 made an application for recalling the order dated August 20, 1996 closing the evidence of the Plaintiffs. This was allowed on August 30, 1996 and on August 30, 1996 the application for re-examination of the Plaintiff No. 2 was allowed subject to certain limitations.
Or, September 26, 1996 the Plaintiffs 2 to 4 made an application under Order 11 or 14 of the CPC for production of the following documents:
B.P. Jalan''s petition without annexures in FMAT No. 2266 of 1992.
M.P. Jalan''s affidavit in opposition dated... July, 1992 in FMAT No. 2266 of 1992.
B.P. Jalan''s affidavit in reply dated 27th July, 1992 in FMAT No. 2266 of 1992.
M.P. Jalan''s supplementary affidavit dated 30th July, 1992 in FMAT No. 2266 of 1992.
B.P. Jalan''s supplementary affidavit dated 30th July, 1992 in FMAT No. 2266 of 1992.
Order/judgment dated 28th August, 1992 passed by Justice Shamsuddin Ahmed and Justice Amal Kumar Chatterjee in FMAT No. 2266 of 1992.
Full records of FMAT No. 119 of 1993 (Dover Park and Ors. v. M.P. Jalan) including the following:
i) Petition of B.P. Jalan without the Annexures.
ii) Affidavit in opposition of M.P. Jalan and H.K. Jalan together with their annexures.
iii) Affidavit in reply of B.P. Jalan without the annexures.
iv) Order/judgment of Justice Mukul Gopal Mukherjee and Justice N.K. Bhattacharjee dated 17th August, 1994.
All the documents are records of proceedings in this Court. On December 6, 1996 Defendants objected in writing to the questions being put to the Plaintiff 2 on re-examination. However, the objection was overruled. On December 19, 1996 the Plaintiffs 2 to 4 and 5 filed a second application for re-examination of the Plaintiff No. 2 without the limitations set down by the order dated September 3, 1996. Hearing of this application was ultimately concluded on April 8, 1997 and on April 11, 1997 the Trial Court allowed the second application of the Plaintiffs Nos. 2 to 4. The P.W. 1 was accordingly again reexamined on May 12, 1997 and the matter was adjourned till June 17, 1997. Thereafter the matter was adjourned at the instance of the Plaintiffs on June 10, 1997 and June 17, 1997. According to the Defendant No. 1 the adjournment on June 17, 1997 was sought for from the Trial Court on the basis of the illness of the P.W. 1 and yet on June 19, 1997 P.W. 1 had attended and remained present in the Calcutta High Court during the hearing of a pending appeal between the parties.
The last order relied upon by the Defendant No. 1 is an order dated July 2, 1997-where P.W. 1 was further re-examined ''in part at length'' and the matter was adjourned till July 16, 1997 on the ground that the Court had no time to hear the suit.
This application was filed by the Defendant No. 1 on July 14, 1997. The matter is now coming up after filing of affidavits. The grounds on which transfer of the suit to this Court has been sought are basically two namely, delay in the disposal of the suit before the All pore Court and that the balance of convenience was in favour of the suit of being heard and tried in this Court Delay.
According to the Defendant No. 1 the Trial Court had not abided by the direction given by the Division Bench of the High Court to it to dispose of the suit within three months. Almost three years had expired since the passing of the directive of the High Court. It is further submitted that the onus was on the Plaintiffs to have the suit heard and disposed of expeditiously. It is said that if the suit were not expeditiously disposed of the validity of sanctioned plan obtained in 1989 by the Defendant No. 1 for development of the premises would expire. It is submitted that the suit was a frivolous one and filed mala fide to prejudice and cause him loss by depriving the Defendant No. 1 of his lawful right to develop the premises. The Defendants Nos. 2 and 3 have supported the Defendant No. 1 and have said that the suit itself would become infructuous if it were not heard and disposed of expeditiously.
The Plaintiffs have said that the Defendant were equally guilty of the delay and referred to the several occasions when adjournments had been sought for by the Defendant No. 1 or by the Defendants Nos. 2 and 3. It is submitted that the High Court was no longer in a position to dispose of suits more expeditiously than a subordinate Court and that the principles enunciated in this respect in the earlier decisions of this Court no longer held good.
In my view the Plaintiffs who have the carriage of proceedings were obliged to see that the suit was expeditiously disposed of particularly in view of the order of the Appellate Court dated August 17, 1994. The prayers for adjournment were made by the Defendants after cross-examination had continued for some time. In any event, it is no answer to say that the Defendants were equally guilty of the delay. There was no attempt made by the Plaintiffs to expedite matters. Indeed even the order dated August 17, 1994 was not placed before the Trial Court by the Plaintiffs. It was left to the Defendant No. 1 to do that.
From the narration of the aforesaid facts it is clear that the trial Court did not complete the herein within three months even after the High Court''s order was placed before it. Furthermore, it is also patent from the order sheet that apart from the times when adjournments were granted on the prayer of either party the hearing of the suit was deferred repeatedly either on the ground that the Learned Trial Judge had no time or on the ground that ''P.O. was absent''. There is no denying that the practice and procedure which has been evolved in the Original Side of this Court is geared towards the expeditious hearing of suit''s and the reference by the Plaintiffs to the current cause list of the Judge taking suits is without significance. It can also not be shown on a comparison with the cause list of the Additional District Judge at Alipore that there is a lesser congestion of the list in the Alipore Court than in the High Court. A litigant in the High Court is rarely, it at all, faced with a situation where hearing of a suit is adjourned on the ground of lack of any officer of Court.
It has been contended on behalf of the Plaintiffs that this application is itself grossly delayed and no explanation had been given by the Defendant No. 1 as to why he had not asked for the suit to this Court earlier. Reliance has been placed on the decision of the Division Bench in Umatul Mehdi v. Kulsoom 10 C.L.J. 208 in support of this submission. That was a case which dealt with transfer of a suit by the District Judge from the Subordinate Judge at Patna to a Subordinate Judge at Monghyr. The High Court held that the jurisdiction of a superior Court to transfer a suit from a subordinate Court to another ought to be exercised with extreme caution as the choice of forum given to a Plaintiff by the legislature should not be lightly interfered with except in special circumstances. The Court, however, recognised that the convenience of necessary witness and the ends of justice would be good grounds for transfer.
The decision of the Supreme Court in Abhay Singh Surana Vs. Indian Rayon and Industries Ltd., indicates that expedition of the hearing, which in this case is imperative by reason of the possibility of expiry of the sanctioned plan, is for the ends of justice and would be achieved if the suit were transferred to the High Court. The Supreme Court said:
The disposal of the suits by the High Court would serve the purpose of justice. It would shorten litigation in the sense that there would be lesser number of appeals to the higher Court and the possibility of settlement is there in the High Court more expeditiously disposed of under the supervision of the High Court Judge than before the Learned City Civil Court or the Court subordinate to High Court.
(v) Length of hearing: On this head: think the balance is in favour of the High Court. The trial in this Court would be more speedy. I do not mean any disrespect to the Learned Judges who preside over the Mofussil Courts. But in the Original Side of our Court there is a better machinery for speedy trial e.g. one set of lawyers devote themselves entirely to the preparation of the papers and evidences for the trial; another set devote themselves entirely to the preparation of the case and the argument to be placed before the Court in a concise manner stenographers are employed to take down the deposition of witnesses ; Counsel in important cases often agree to documents that are exhibited ; and there are various other things which help to shorten the duration of the trial in this Court. Soon this head the balance of convenience is in favour of the High Court.
The Defendant No. 1 has waited long enough to have the issue relating to his right, if any to develop the premises decided. In my view the Defendant No. 1 has been able to sufficiently establish this ground to justify the exercise of discretion in his favour by transferring the suit as prayed.
Balance of convenience.
It is the defendant No. 1''s case, which is not disputed by the Plaintiffs, that there are as many as 29 separate litigations between the parties pending in this Court. In many of the litigations issues touching some of the issues of the suit sought to be transferred have been raised.
The company with which the Defendant No. 1 is stated to have entered into the agreement to assign has its registered office within the jurisdiction of this Court. The other Plaintiffs base their main claim in the suit qua share-holders of the company. The Defendant Nos. 2 and 3 as directors of the company also work for gain within this Court''s jurisdiction.
Besides the pleadings filed in the suit clearly show that the records of this Court will be required to be produced at the trial of the suit. The application of the Plaintiffs themselves for production of diverse pleadings and other records in this Court conclusively establishes this. It has been held that where the records of the Court are required to be produced as evidence, this was sufficient ground for transfer of a suit to this Court See: Kalidas Roy and Others Vs. University of Calcutta and Others, This was also recognised in the case of Kumar Rupendra Raikut v. Ashrumati Devi and Ors. 84 C.L.J. 313 cited by the Plaintiffs themselves where S.N. Banerjee-J. considered the convenience of production of documents as a ground for transfer of a suit from Jalpaiguri to this Court.
For the reasons aforesaid I am of the view that the application of the Defendant No. 1 must be allowed. The rule is accordingly made absolute. The Registrar, Original Side is directed to ensure that the records of T.S. No. 23 of 1992 pending before the Second Assistant District Judge, Alipore are transferred to this Court expeditiously and in any event within 2 weeks from date.
Costs in the cause.
Let a xerox copy of the judgment duly signed by the Assistant Registrar of this Court be given to the parties. Upon their undertaking to apply for certified copy of the judgment and on payment of usual charges.