Full Judgment Text
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PETITIONER:
ABHAY SINGH SURANA
Vs.
RESPONDENT:
INDIAN RAYON & INDUSTRIES LTD.
DATE OF JUDGMENT03/08/1988
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
SHARMA, L.M. (J)
CITATION:
1988 AIR 1870 1988 SCR Supl. (2) 204
1988 SCC (4) 358 JT 1988 (3) 458
1988 SCALE (2)770
ACT:
Letters Patent of 1865 of Calcutta High Court: Clause
13-Extraordinary original jurisdiction-Exercise of by High
Court-Conditions requisite -Ejectment suit under W.B.
Premises Tenancies Act, 1956 and title suit transferred to
High Court by consent of parties-But retransferred to trial
court-Held disposal of suit by High Court would serve
purpose of justice.
%
Constitution of lndia-Art. 136-Proceeding at a
preliminary stage-Interference-When called for.
Practice and Procedure: Disposal of suits by High Court
would serve purpose of justice-Lesser number of appeals and
possibility of settlement.
HEADNOTE:
The appellant let out his godown to a Textile company,
which was subsequently amalgamated with the respondent
Company, under a scheme of amalgamation approved by the High
Court.
On August 29, 1985 the appellant issued a notice to the
erstwhile company under s. 106 of the Transfer of Property
Act read with s. 13(6) of West Bengal Premises Tenancy Act,
1956 to quit and hand over vacant possession of the godown.
Thereafter he filed a suit for eviction in the City Civil
Court against the erstwhile Company and the respondent
Company. The respondent also filed a suit under Order 39(I)
and (2) of the Civil Procedure Code for temporary injunction
restraining the appellant from disconnecting electricity in
the said premises.
The appellant filed an application in the High Court
under clause 13 of the Letters Patent for transfer of the
two suits on the ground that the respondent had adopted
dilatory tactics and had taken several adjournments to file
written statement, and that the original records relating to
amalgamation were available in the High Court. By consent of
the parties, the High Court transferred these suits to
itself for trying in its extraordinary original civil
jurisdiction.
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When the suits appeared before the Single Judge, it was
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represented that the suits were transferred to the High
Court only on the understanding that the suits would be
settled and that the efforts to settle the suit had failed.
Hence,the Judge fixed a date for hearing of the two suits.
On February 17, l9S8 the respondent filed an application for
recalling the order of transfer.
Accordingly, the High Court recalled its earlier order
and retransferred them to the City Civil Court.
Aggrieved, the appellant filed an appeal by special
leave, contending that there was simply an agreement to have
the suits transferred to the High Court for quick and
expeditious disposal, in view of the long delay in filing
written statements.
The Respondent, however, contended that the agreement
was that the suits would be settled in the High Court.
Disposing of the appeal,
HELD: 1.1 Clause 13 of the Letters Patent enables the
High Court to exercise the extraordinary original civil
jurisdiction. The Letters Patent contemplates two
contingencies for the High Court to exercise extraordinary
jurisdiction, namely, on agreement of the parties to that
effect, the suits be transferred and, secondly, for the
purpose of justice. It further stipulates that the reasons
for so doing to be recorded on the proceedings in the High
Court. [209C-D)
1.2 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 than anywhere else. Suits are likely
to be more expeditiously disposed of under the supervision
of the High Court Judge than before the City Civil Court or
the Court subordinate to High Court. [2l0B]
1.3 The purpose of justice must be determined by
reference to the circumstances of each case and the balance
of convenience having regard to those circumstances, is one
of the matters for consideration. [2l0D]
In the instant case, even though initially the agreement
to transfer might have been on the basis that the suits
would be settled but the agreement to transfer was not
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unequivocal. The possibility of settlement might have been
the motivation. But the High Court has, undoubtedly, for
the purpose of justice, rightly power to dispose of the
suits. Having once transferred the suits, it would be just
and fair and would also serve the purpose of justice that
the suits should continue to be disposed of by the High
Court. [210C-D]
Though the suits are at a preliminary stage, but for the
purpose of justice, the Court must oversee the
administration of justice by different Courts and orders
passed High Court as well as City Civil Courts. [210E]
Therefore, the purpose of justice would be served by
directing expeditious disposal of the suits by the High
Court. [210F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2597 of
1988.
From the Judgment and Order dated 17.3.1988 of the
Calcutta High Court in Matter No. 2462 of 1987.
Soli J. Sorabji, R. Mahapatra, B.P. Singh and L.P.
Agarwala for the Appellant.
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S.K. Kapoor, S. Dube, Chatterji and Mrs. Indra Sawhney
for the Respondent.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. Special leave granted. The
appeal is disposed of by the judgment herein.
On or about 7th August, 1963 Jayshree Textiles &
Industries Ltd. (hereinafter called ’the Jayshree ’) was
inducted as a tenant in respect of a godown in Calcutta on
groundfloor at a monthly rent of Rs. 151 per month payable
according to the English calendar month w.e. f. 1.8. 1963
exclusive of electric charges. Such induction was by the
predecessor in title of the present appellant. The said rent
of Rs.151 p.m. was later enhanced from time to time and the
last rent was Rs.225
p.m.
On or about 21st July, 1975, the High Court at Calcutta,
in Company Petition No. 161/76 connected with company
application No. 70/76 filed by the Jayshree, approved the
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scheme of amalgamation whereby the Jayshree merged in the
respondent Company. It is alleged that on or about 4th July,
1985, the appellant for the first time came to know that the
said godown was in occupation of Indian Rayon Corporation
Ltd and, hence, a notice to quit was issued. On or about
11th July, 1985, the respondent by its letter intimated the
appellant. that Jayshree was amalgamated with the respondent
in accordance with the scheme sanctioned by the High Court
at Calcutta on 21st July, 1976.
On 29th August, 1985, a notice under Section 106 of the
Transfer of Property Act, read with Section l3(d) of the
W.B. Premises Tenancy Act, 1956 (hereinafter called ’the
Act’), to quit, vacate and hand-over vacant possession on
the last date of the following month,was issued to Jayshree.
Thereafter, on lst December, 1985 the appellant filed a suit
for eviction in the City Civil Court at Calcutta against the
Jayshree and the respondent herein. On 25th March, 1986, the
respondent filed a Title Suit No. 545/86 under Order 39(1)
and (2) of the Civil Procedure Code praying for temporary
injunction restraining the appellant from disconnecting
electricity in, the said premises.
It is alleged and was also alleged before the High Court
that the defendant No. 2 in the suit in the City Civil
Court, took 15 adjournments to file written statement
between March 1986 to May 1987. On about 6th July, 1987, the
appellant filed an application under Clause 13 of the
Letters Patent in the High Court at Calcutta, praying for
transfer of the two suits on the ground that the respondent
had adopted dilatory tactics and had taken several
adjournments and. furthers that the original records
relating to amalgamation are available in the High Court.
Rule nisi was issued by the High Court. On 10th October,
1987 the High Court passed the following order:
The Court: By consent of the parties, this application
for transfer of the suit under Clause 13 of the Letters
Patent is treated as on days’ list and is disposed of by the
following order:
By consent of the parties the title suit being Title
Suit No. 345 of 1986 between Indian Rayon Corporation Ltd.
and Abhay Singh Surana pending before the learned Judge’s
bench in the City Civil Court and the ejectment suit being
Ejectment Suit No. 1088 of 1985 between Abhay Singh Surana
and Jayshree Textiles & Industries Ltd. and another pending
in the City Civil Court are removed and transferred to this
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Court and to be entertained and tried by this Court in its
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extraordinary original civil jurisdiction, the records be
transferred to this Court by 16th September 1987. The
Registrar, Original Side, shall communicate order to the
Registrar, City Civil Court. If necessary, at the cost of
the petitioner a special messenger is to be deputed for the
purpose of transfer of the records from the City Civil Court
to this Court. Let the two suits appear in the for
settlement on 17th September, 1987. "
It appears that the suits appeared before the learned
Judge upon mentioning on 15th December, 1987. It was
represented that the suits were transferred to the High
Court only on the understanding that the suits would be
settled. It was further represented that the effort settle
the suits had failed and, hence, the learned Single judge of
the High Court fixed a date for hearing of the two suits.
On 17th February, 1988, the respondent filed an
application before the learned Trial Judge in Calcutta for
recalling the order of transfer dated 10.10.1987. On 17th
March, 1987, the court passed the following order:
"The Court: It appears that on 10th September, 1987, an
order was passed directing transfer of the suit to this
Court so that the parties could settle the matter in this
Court. It has been stated by Mr. Ranjan Dev, Advocate, that
there is no possibility of settlement and the suit should be
heard. In that view of the matter, let the suit be heard by
the appropriate Court. The order dated 10th September, 1987
is hereby recalled. Let there also be an order in terms of
prayer [b] of the petition. Since the suit is being re-
trans-ferred to the City Civil Court, this Court cannot pass
any order as to the prayers made for deposit of rent.
Liberty is given to the parties to make an appropriate
application before the appropriate Court for such a
direction."
Aggrieved thereby, the petitioner had filed a special
leave petition and leave was granted herein. That is
how,this appeal is here.
In order to appreciate the contentions urged in this
case, it is imperative to refer to Clause 13 of the Letters
Patent of 1865 of the High Court, which reads as follows:
"And we do further ordain, that the said High Court of
Judicature at Fort William in Bengal shall have power to
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remove, and to tr and determine, as a Court of extra-
ordinary original jurisdiction of any court, whether within
or without the Bengal Division of the Presidency of Fort
William. subject to its superintendence. when the said High
Court shall think proper to do so, either on the agreement
of thethe parties to that effect, or for,r purposes of
justice. the reasons for so doing being recorded on the
proceeding of the said High Court. "
The aforesaid clause has been the subJect-matter of
various adjudications and interpretations by the High Court.
It enables the High Court to exercise the extraordinary’
original civil jurisdiction. The Letters Patent
contemplates two contingencies for the High Court to
exercise extraordinary jurisdiction. namely. on agreement of
the parties to that effect. the suits be transferred and,
secondly, for the purpose of justice. It further stipulates
that the reasons for so doing to be recorded on the
proceedings in the High Court. In this case. apparently the
suits were transferred by agreement of the parties. There
is. however, great deal of difference as to what that
agreement was. On behalf of the appellant, it is contended
that there was simply an agreement to have the two suits
transferred to the High Court for quick and expeditious
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disposal. It was further, asserted that in view of the
long delay in filling the written statements, it was,
therefore, advisable to have the suits disposed by the High
Court.
On the other hand, it is seriously contended that the
agreement was that the suits would be settled in the High
Court. It appears that some such representations had been
made to the learned Judge that the suits would be settled.
This, however. the appellant disputes. The suits have been
transferred for settlement. As the agreement to settle the
suits has not fructified, the respondent does not want the
suits to be tried in the High Court. The appellant states
that there was no such agreement that the suits would be
settled. There was, undoubtedly, a possibility for the
suits being settled and the counsel for the appellant stated
that the suits could more easily be settled in the High
Court. On the basis that there was some such kind of
agreement and it is desirable that the suits should be tried
by an appropriate Court having jurisdiction, the High Court
has remitted the suits back to the City Civil Court. There
is no doubt that the City Civil Court is the appropriate
Court and that there existed the agreement which, as
recorded in the order of the Court, does not indicate that
it was on the basis that the suits would be settled. There
PG NO 210
are factors indicating that the purpose of justice would be
met if the suits are tried in the High Court. Undoubtedly,
the written statement has been long delayed in the suit in
1985 and the same has not yet been filed.
The disposal ot 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 than anywhere else. Suits are likely to
be 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. Hence, even
though initially the agreement to transfer might have been
on the basis that the suits should be settled but the
agreement to transfer was note unequivocal. The possibility
of settlement might have been the motivation. But the High
Court has, undoubtedly, for the purpose of justice rightly
power to dispose of the suits and in the facts of this case,
in our opinion, having once transferred the suits, it would
be just and fair and would also serve the purpose of justice
that the suits should continue to be disposed of by the High
Court. The purpose of justice must be determined by
reference to the circumstances of each case and the balance
of convenience having regard to those circumstances, is one
of the matters for consideration.
Counsel for the respondent contended under Art. 136 of
the Constitution that it is not an order which should be
interfered with. We are unab1e to agree. It is true that the
suits are at a preliminary stage but it is also true that
for the purpose of justice the Court, if possible, must
oversee the administration of justice by the different
Courts and the orders passed therein by the High Courts as
well as the City Civil Courts.
In that view of the matter we think that the purpose of
justice would be served by directing expeditious disposal of
these suits by the High Court. In the premises the order of
the High Court is set aside and let these two suits be heard
by the High Court one after the other. The written statement
as mentioned hereinbefore, has not been filed. The written
statement, if any, by the respondent may be filed within
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four weeks from today and further directions for expeditious
disposal may be obtained from the learned Judge taking these
suits. Let these suits appear before the appropriate Bench
in the High Court of Calcutta.
The appeal is disposed of as aforesaid. No order as to
costs.
N,P.V.
Appeal disposed of.
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