Sunday, 3 July 2016

Whether case can be transferred from one court to another on ground that Judge has dismissed 45 appeals in three days?

As stated in the first paragraph, the only ground on which
the petitioners seek transfer is that the VI Additional Fast Track
Court Judge had dismissed 45 appeals in a span of three days.  As
we have pointed out at the threshold, this cannot be a ground for an
apprehension, much less a reasonable apprehension, that the
petitioners may not get justice.  When Courts, which move at snails
pace, are ridiculed, we do not know how Courts that proceed on fast
track could also be condemned. These petitions are completely
devoid of merits. Therefore, they are dismissed. 
ANDHRA PRADESH HIGH COURT
Tr.C.M.P.Nos.704of 2014 

Dated:21-06-2016 

Tadikonda Surya Venkata Satyanarayana Murthy . Petitioner   
Vs
Tammana Seethamahalakshmi and 3 others.Respondents       


HONBLE SRI JUSTICE V. RAMASUBRAMANIAN           
AND  
HONBLE SRI JUSTICE A. SHANKAR NARAYANA           



Brief facts leading to the transfer petitions
        
        The unsuccessful plaintiffs in two different suits on the file of
the Senior Civil Judge, Narsapur of West Godavari District, who had
filed regular appeals under Section 96 of the Code of Civil
Procedure (for short the Code), which are pending on the file of VI
Additional Fast Track Court at Narsapur of West Godavari District,
have come up with the present transfer petitions seeking transfer of
the appeals from the VI Additional Fast Track Court, Narsapur to any
other Court only on the specious plea that the VI Additional Fast
Track Court Judge had dismissed 45 appeals in a span of three
days without taking up final hearing in a proper manner and that
therefore, there is a reasonable apprehension in the minds of the
petitioners herein that they may not get justice from the VI Additional
Fast Track Court, Narsapur.
      2. As a matter of fact, the transfer petitions are completely
devoid of merits and were liable to be thrown out without much ado,
on the short ground that the dismissal of 45 appeals in a span of
three days can hardly give rise to an apprehension of the nature
pleaded by the petitioners. But, when these transfer petitions were
posted before a learned Judge, the learned counsel for the
respondents took exception to the maintainability of the transfer
petitions on the file of this Court, on the ground that the transfer
petitions ought to have been filed on the file of Principal District
Judge, under Section 24 (1) of the Code.  But the learned counsel
for the petitioners relied upon a judgment of a learned Single Judge
of this Court in Manchukonda Venkata Jagannadham v.  
Chettipalli Bullamma (AIR 2011 AP 104) to the effect that the
District Court has no power to transfer a case pending on the file of
one Additional District Judge to the file of another District Judge.
The respondents relied upon the decision of another learned Judge
in T. Niranjan v. Ch. Ramesh Chander Reddy (2013 (3) ALT 150),
wherein it was held that in view of the express language of Section
24 (3) (a) of the Code, the ratio decidendi in Manchukonda Venkata
Jagannadham v. Chettipalli Bullamma was incorrect.
        3. Finding that there was a conflict of opinions between 2
Benches of co-ordinate jurisdiction, the learned single Judge before
whom the present transfer petitions came up for hearing has referred
the matter to the Division Bench.
Order of Reference
     4. The operative portion of the order of the learned Judge, by
which these petitions stand referred to us, reads as follows:
In the light of conflicting decisions of this Court in
Manchukonda Venkata Jagannadhams case (1 supra) and in T.   
Niranjas case (2 supra), the point that is to be answered is whether the
District Court has jurisdiction to exercise power under Section 24 to
withdraw and transfer any suit, appeal or other proceeding pending on
the file of one Additional District Court to another Additional District
Court or from/or to the District Court.
8.      Article 141 of the Constitution of India stipulates that law
declared by the Supreme Court shall be binding on all Courts within the
territory of India. But as regard the application of precedents of the High
Court there is no direct constitutional provision as Article 141.  But a
three Judges Bench of the Supreme Court in M/S. EAST INDIA   
COMMERCIAL COMPNAY LIMITED, CALCUTTA vs.           
COLLECTOR OF CUSTOMS, CALCUTTA (AIR 1962 SC 1893) at           
para 14 held thus:
       It is implicit in the power of supervision conferred on a
superior tribunal that all the tribunals subject to its supervision should
conform 
to the law laid down by it.  Such obedience would also be conducive to their
smooth working: otherwise, there would be confusion in the administration of
law and respect for law would irretrievably suffer. We, therefore, hold that the
law declared by the highest court in the State is binding on authorities or
tribunals under its superintendence.

9.      There is no dispute and there cannot be any dispute that a larger
Bench decision will prevail over a smaller Bench decision. But the
conflicting judgments on a particular point by co-equal benches cause
enormous difficulty to lower Court Judges who are bound by the ratio of
the law enunciated by the superior Courts.  In DELHI
DELVELOPMENT AUTHORITY vs. ASHOK KUMAR BAHELs              
case (AIR 2002 SC 2940) the Supreme Court emphasized the need to   
refer the case to a larger bench when conflicting views of the coordinate
benches are noticed and held that inconsistency and contradiction in the
orders passed by the same Court on the same point regarding the same 
scheme cannot be allowed to be continued or perpetuated.   It was
further observed that the cardinal principle of rule of  law that
inconsistency and contradiction in the orders has to be avoided at all
costs to bring about a certainty in the mind of the Subordinate courts and
the litigant public. This principle would stand violated in case two
binding principles on the same point of the same Court are allowed to
operate simultaneously.  In view of the above facts and circumstances, I
am of the opinion that conflict of law in the judgments in Manchukonda
Venkata Jagannadhams case (1supra) and in T. Niranjas case (2 supra)
is required to be resolved by an authoritative pronouncement by Division
Bench. 
10.     There is no impediment to decide the instant transfer petitions,
but the judicial discipline demands that the decision in the matter shall
have to await the authoritative pronouncement by the Division Bench of
this Court.
11.     For the reasons stated above, Registry is directed to place the
papers before Honble the Acting Chief Justice for appropriate
orders...

        5. We have heard Sri G. Simhadri, learned counsel for the
petitioner and Sri Dasari S.V.V.S.V. Prasad, learned counsel for the
respondents. 
How the conflict arose
        6. In Manchukonda Venkata Jagannadham v. Chettipalli 
Bullamma {AIR 2011 A.P. 104}, an order of transfer passed by the
Principal District Judge, Visakhapatnam, transferring a suit from the
file of the VII Additional District Judge to the file of the II Additional
District Judge, was challenged in a revision, on the ground that the
Additional District Judges were not subordinate to the Principal
District Judge.
      7. Finding that the power to withdraw and transfer a suit,
appeal or other proceeding is conferred only upon the High court
and the District Court, in relation to any matter pending in a court
subordinate thereto, the learned Judge thought that Additional
District Judges who are of equal rank and status cannot be treated
as subordinate to the Principal District Court. In so far as the
Explanation provided under clause (a) of sub-section (3) of Section
24 is concerned, the learned Judge opined that the same does not
use the expression Additional District Judge or Assistant District
Judge, but merely uses the expression Additional and Assistant
Judges. The absence of the word District after the words
Additional and Assistant was taken by the learned Judge to be an
indication that the deeming fiction created under clause (a) of sub-
section (3) would be applicable only to the City Civil Courts and not
to the Courts of Additional District Judges.  When it was brought to
the notice of the learned Judge that under Sections 6 and 11 (2) of
the Andhra Pradesh Civil Courts Act, 1972, the District Judge enjoys
the power of distribution among and allotment of work to Additional
Judges, the learned Judge opined that these powers are completely
different from the power of the District Court under Section 24 of the
Code. When the decision of the Karnataka High Court in Sathya 
Shree v. M. Kumreshan (1999 AIHC 3366), was brought to the  
notice of the learned Judge, he disagreed with the same on the
ground that the expression Additional and Assistant Judges cannot
be read as Additional District Judges and Assistant District
Judges, as no Court can read anything into a statutory provision,
which is unambiguous. 
      8. In T. Niranjan v. Ch. Ramesh Chander Reddy {2013 (3)
ALT 150} another learned Judge took note of the definition of the
expressions District and Judge under Section 2 (4) and 2 (8) of
the Code and held that the power of transfer is inherent in the power
of assignment of work. Though the decision in Manchukonda was  
brought to the notice of the learned Judge in T.Niranjan, the learned
Judge ignored the same on the ground that it was contrary to the
statutory scheme. As a result, we have 2 conflicting opinions on
hand.
Scheme of section 24 and the nature of the power conferred
      9. Section 24 of the Code is extracted for the purpose of easy
reference as follows:
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) retransfer the same for trial or disposal to the Court from which it was
withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn
under sub-section (1), the Court which thereafter tries such suit may,
subject to any special directions in the case of an order of transfer, either
retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this section, Courts of Additional and Assistant
Judges shall be deemed to be subordinate to the District Court.
(4) The Court trying any suit transferred or withdrawn under this section
from a Court of Small Causes shall, for the purposes of such suit, be
deemed to be a Court of Small Causes. 
(5) A suit or proceeding may be transferred under this section from a
Court which has no jurisdiction to try it.

        10. The salient features of sub-section (1) of Section 24 are as
follows:
1)      the general power of transfer and withdrawal vests both with
the High Court as well as the District Court;
2)      the power could be exercised either suo motu or on an
application of any of the parties;
3)      if the power is exercised suo motu, no notice is required to be
served on the parties, but, if the power is sought to be
exercised on the application of any of the parties, it can be
done only after notice to the other party and after hearing such
of them as desired to be heard;
4)      the power may be exercised at any of stage of the proceeding;
5)      the principal condition for the exercise of the general power of
transfer and withdrawal is that the Court from whose file the
suit, appeal or other proceeding is sought to be transferred,
should be a Court subordinate to the Court seeking to
exercise the general power of transfer and withdrawal.

      11. The power conferred upon the High Court and the District
Court by sub-section (1) of Section 24 is of three types. They are,-
1)      the power to transfer a suit, appeal or other proceeding
pending before the very Court ordering the transfer, for
trial or disposal to any other court subordinate to it and
which is also competent to try and dispose of the same;
2)      the power to withdraw a suit, appeal or other proceeding
pending in any Court subordinate to the Court ordering
the transfer, for the purpose of trial and disposal by the
very Court ordering the transfer; and
3)      the power to withdraw any suit, appeal or other
proceeding pending in any court subordinate to the
court ordering the transfer, and to transfer the same for
trial or disposal to any other court subordinate to it and
which is also competent to try and dispose of the same.
Deeming fictions created in section 24

      12. Sub-sections (3) and (4) of Section 24 create two deeming
sections. Clause (a) sub-section (3) creates one deeming fiction by
holding that for the purpose of Section 24, the Courts of Additional
and Assistant Judges shall be deemed to be subordinate to the
District Court. Sub-section (4) creates another deeming fiction by
providing that if a suit is transferred from a Court of Small Causes to
any other Court, the transferee Court will be deemed to be a Court of
Small Causes. 
Purport of clause (a) of sub-section (3) of section 24
      13. As we have indicated above, the nature of the power
conferred upon the High Court and the District Court is of three
types, the first of which is found in clause (a) of sub-section (1).
Interestingly, the power under Section 24 (1) (a) is akin to the power
of distribution and allocation of work. Under this provision, a suit,
appeal or other proceeding pending before the High Court or
the District Court itself can be transferred for trial and disposal
to any other Court subordinate to it, if that other Court is
competent to try and dispose of the same.  What is provided in
Sections 6 and 11 (2) of the A.P. Civil Courts Act, 1972, is similar to
what is provided in sub-section 24 (1) (a). Therefore, the opinion
expressed in Manchukonda Venkata Jagannadham v. Chettipalli   
Bullamma that the distribution and allocation of work under Sections
6 and 11 (2) of the A.P. Civil Courts Act, 1972 is completely different
from the power conferred by Section 24 of the Code, does not
appear to be correct.
Difference in the language employed
      14. Another important aspect that has not been taken note of
in Manchukonda Venkata Jagannadham that in the entirety of 
Section 24, which contains five sub-sections, there is only one part
viz., clause (a) of sub-section (3), where the word Judge is used.
In all other parts of Section 24, the statute uses only the expression
Court and not Judge. Therefore, let us see what a District Court
is.
      15. Section 2 (4) of the Code defines District to mean the
local limits of the jurisdiction of a principal Civil Court of original
jurisdiction. It includes the local limits of the ordinary original civil
jurisdiction of a High Court. The expression District court, though
not directly defined, is indirectly defined in Section 2 (4) itself to
mean the principal Civil Court of original jurisdiction of a District.
      16. Therefore, the expression District Court always denotes
the principal Civil Court of original jurisdiction of a District.  All other
civil Courts of original jurisdiction, even if presided over by officers of
the very same rank and status, will not be treated as District Courts
within the meaning of Section 2 (4), if they do not happen to be the
principal Civil Court of the district.
      17. The expression Judge is defined in Section 2 (8) of the
Code to mean the presiding officer of a Civil Court. Therefore, to be
a judge within the meaning of Section 2 (8), the person concerned
need not be the presiding officer of a principal Civil Court of original
jurisdiction.
      18. If we keep in mind the distinction between the expressions
District Court and Judges, it will be clear that the general power of
withdrawal and transfer conferred under Section 24 (1) is upon 2
courts namely:-
      (i) the High Court and
      (ii) the principal Civil Court of original jurisdiction of a district,
which satisfies the definition under Section 2 (4).
      19. From this, if we go to clause (a) of sub-section (3) of
Section 24, it will be clear that the deeming fiction created therein
is about the Courts of Additional and Assistant Judges vis--vis
the District Court. Once this is clear, there is no difficulty in
concluding that the absence of the word district after the
words additional and assistant is of no consequence. The
emphasis in clause (a) of sub-section (3) is not simply on
Additional Judges and Assistant Judges, but is actually on
Courts of Additional and Assistant Judges vis--vis District
Court. This important aspect has not been taken note of in
Manchukonda Venkata Jagannadham.     
      20. A careful look at clause (a) of sub-section (3) of section 24
would show that the phrase courts of additional and assistant
judges appearing therein, is ejusdem generis with what
follows, namely the phrase District court. When clause (a)
speaks of the courts of additional and assistant judges with specific
reference to the District court, it can be construed only as a
reference to the Additional and Assistant District Judges, irrespective
of whether the word District is used or not in between the words
Additional Judges and Assistant Judges.
      21. A few decisions are cited by the learned counsel for the
petitioner in support of his contention that the courts are not
empowered to supply words into a statutory provision. We do not
think that we need to refer to any of them, as the principle of
causus omissus is too well recognised. We are not, in this case,
supplying the word District in clause (a) of sub section (3), when it
is conspicuous by its absence. We are just pointing out that the word
already exists in the statutory provision, but it is more visible when
we apply the rule of ejusdem generis.
Principle of subordination
      22. In Manchukonda, the learned Judge appears to have been
perturbed by the fact that if the power to transfer a case from the file
of one Additional District Judge to the file of another Additional
District Judge is recognised as available to the Principal District
Judge, the general principles of judicial hierarchy and subordination
of courts, will suffer a severe jolt. That is why the learned Judge
drew a reference to Section 3 of the Code, which speaks about
subordination of Courts.
      23. Section 3 of the Code reads as follows:
Subordination of Courts:- For the purposes of this Code, the District Court
is subordinate to the High Court, and every Civil Court of a grade inferior to
that of a District Court and every Court of Small Causes is subordinate to the
High Court and District Court.

        24. As per Section 3, a Civil Court will be treated as
subordinate to the District Court, only if that Civil Court happens to
be of a grade inferior to the District Court. Since in terms of judicial
powers, all District Judges enjoy the same status, the learned Judge
thought in Manchukonda that the presiding officer of an Additional
District Court cannot be treated as a grade inferior to the Presiding
Officer of the Principal District Court.
        25. But, insofar as this aspect is concerned, it must be pointed
out that Section 3 does not speak either about the hierarchy of the
Judges or about the subordination of one or more Judges to
another. Section 3 speaks only about the subordination of
Courts and not subordination of Judges.
        26. Section 24 (1) (a) empowers the District Court to transfer a
case pending before it, to any Court subordinate to it, provided such
a Court has jurisdiction to try and dispose of the same. If the
interpretation given in Manchukonda is correct, a Principal District
Court cannot transfer any case pending on its file to the Court of an
Additional District Judge, because the Additional District Judge
cannot be treated as subordinate to the Principal District Judge.  The
Principal District Judge cannot also transfer a regular appeal
pending before him to the Court of a Junior Civil Judge, since such a
Judge, though subordinate to the Principal District Judge, will have
no jurisdiction to try and dispose of an appeal. These consequences
arising out of such an interpretation, would make the provision, a
dead letter.
        27. To put it differently, two conditions are to be satisfied for
the exercise of the power under Section 24 (1) (a). The first is that
the Court to which the case is to be transferred should be
subordinate to the Court ordering the transfer. The second is that the
transferee Court should also be competent (have jurisdiction) to try
and dispose of the same.
        28. Both the conditions laid down in Section 24 (1) (a) will
stand satisfied only when the transfer is made from the Principal
District Court, to any one of the Additional District Courts. Therefore,
Section 24 (1) (a) itself contains a clue as to how we should resolve
the problem on hand.
Contention based on the distinction between administrative power
and judicial power

        29. Interestingly, the learned counsel for the respondents had
no option but to agree that the Principal District Court, upon receipt
of a case, would have the power to distribute, allocate or assign any
suit, appeal or other proceeding to any of the Additional District
Courts. But, his contention was that the distribution and allocation of
work on the administrative side by a Principal District Judge stands
on a different footing from the exercise of a general power of
withdrawal and transfer on judicial side. In other words, his
contention is that what a Principal District Judge can do in exercise
of the administrative powers conferred upon him, cannot be done by
him in the exercise of judicial powers, as the Courts of the Additional
District Judges are not subordinate to the Court of the Principal
District Judge.
        30. The answer to the above contentions is two fold. The first
is that it is only because the Courts of Additional District Judges are
not judicially subordinate to the Court of the Principal District Judge,
that a deeming fiction is created by Section 24 (1) (a). The second is
that an order transferring a suit, appeal or other proceeding from one
Court to another cannot be treated as a judgment.
Order of transfer not a judgment
      31. Section 2 (9) of the Code defines the word judgment to
mean the statement given by the Judge of the grounds of a decree
or order. The three segments of a judgment as propounded by the
Supreme Court in Omprakash Verma v. State of Andhra Pradesh   
(Scale 2010 (10) 707) are:
(i) facts and points in issue;
(ii) reasons for decision and
(iii) find order containing decision.
      32. A declaration of final determination of the rights of the
parties in a matter before the Court is what a judgment is.  An order
of transfer of a case from one Court to another does not bring to an
end to any dispute between the parties. The order would not also be
a decision on the respective claims.
        33. The fact that the Principal District Judge cannot sit in
Judgment or appeal over the judgment of an Additional District
Judge, is not a ground to hold that the Principal District Judge
would not even have a power to transfer a case pending on the
file of one Additional Judge to another. While ordering the
transfer of a case from the file of one Additional Judge to that of
another, the District Court (or the Principal District Judge) neither
pronounces a judgment on the merits of the case nor exercises the
power of judicial review over any decision rendered by the Additional
District Judge.  Therefore, the expression subordinate need not be
a cause for worry.
      34. In Asrumati Debi Kumar V. Rupendra Deb Raikot (AIR
1953 SC 198), the Supreme Court held that an order of transfer of a
suit made under clause 13 of the Letters Patent is not a judgment
within the meaning of clause 15 of the Letters Patent. The said
decision was followed by a Division Bench of the Madras High Court
in K.V. Govindarajulu Mudaliar v. Devar and Co. (AIR 1954
Madras 248). The decision in K.V. Govindarajulu Mudaliar was
rendered on 06-07-1953. Therefore, by virtue of the decision of the
Full Bench of this Court in M. Subbarayudu v. the State (AIR 1955
AP 87), the decision in K.V. Govindarajulu Mudaliar is good as a
binding precedent.
        35. Apart from the fact that an order of transfer is not a
judgment, it must also be noted that in a petition for transfer of a
case from one Court to another, no order or decision of the
subordinate Court is called in question. It is only when the decision
or order of a Court is called in question before another Court, the
former should be subordinate to the latter, in terms of judicial
hierarchy. This is why Section 3 of the Code carefully uses the
expression of a grade inferior.
Answer to the reference:
      36. Therefore, in the light of foregoing discussion, we are of
the considered view that the Principal District Judge would have the
power to withdraw a suit, appeal or other proceeding pending on the
file of one Additional District Judge and transfer the same to the file
of another District Judge. As a corollary, we are also of the
considered view that the decision of the learned single Judge in
Manchukonda Venkata Jagannadham does not reflect the true spirit 
of Section 24 (3) (a) of the Code and does not reflect the correct law
on the point.
      37. Incidentally, we may also clarify that the general power of
withdrawal and transfer is available to the High Court as well as the
District Court concurrently as indicated by the Supreme Court in
Kuluvinder Kaur v. Kandi Friends Education Trust (C.A.No.338
of 2008 dated 11-1-2008). Therefore, the availability of the power
for the Principal District Court to transfer a case from the file of one
Additional District Court to another, does not operate as a bar for the
High Court to exercise the jurisdiction.
Fate of the present petitions:
        38. Having pronounced our opinion on the conflicting views,
we shall now take up the present petitions for consideration.  We do
so in view of the fact that the learned Judge upon whose order these
petitions are placed before us, has not merely placed a question for
reference but also placed both the transfer petitions themselves for
an adjudication before a Bench.
        39. As stated in the first paragraph, the only ground on which
the petitioners seek transfer is that the VI Additional Fast Track
Court Judge had dismissed 45 appeals in a span of three days.  As
we have pointed out at the threshold, this cannot be a ground for an
apprehension, much less a reasonable apprehension, that the
petitioners may not get justice.  When Courts, which move at snails
pace, are ridiculed, we do not know how Courts that proceed on fast
track could also be condemned. These petitions are completely
devoid of merits. Therefore, they are dismissed. There shall be no
order as to costs.
_______________________    
V. RAMASUBRAMANIAN, J      
________________________    
A. SHANKAR NARAYANA, J      
Date: 21-06-2016

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