Sunday, 5 March 2017

Whether application for breach of injunction order can be filed in transferee court if case is transferred?

 I squarely fall in line with the view taken by Punjab and Haryana High Court and on the foregoing analogy hold that whenever a suit, after passing an interlocutory order, is transferred to a subordinate Court, the business of the transferring Court will be deemed to have been transferred to the subordinate Court and any motion for disobedience of an order passed by the transferring Court can lie before the Court to which the matter has been transferred.
9. It is Rule 2-A of Order 39 which makes provision for disobedience of an ad interim injunction passed in terms of Rule 2. Therefore, an application projecting disobedience can be safely termed to be an offshoot of the action taken under Rule 2. After the transfer of business to the transferee Court, it will be the latter Court which will have jurisdiction to try this application. This is particularly so when Rule 2-A expressly makes it clear that "the Court to which the suit or proceeding is transferred may pass orders" in a particular mode.
 Citation : AIR 1997 J and K 34
IN THE HIGH COURT OF JAMMU AND KASHMIR
C.O.A. No. 5 of 1988
Decided On: 22.02.1996
Arjan Khajuria
Vs.
 Parkash Chand and Ors.
Hon'ble Judges/Coram:
A.M. Mir, J.


1. The point that falls for determination of the Court in this C.M.P. is, as to whether, after transfer of a civil suit from this Court to a District Court, an application alleging violation of an order of this Court, is necessarily to be tried by this Court only.
2. Objections have been filed. I have heard the learned counsel for the parties.
3. In my opinion Section 150 of the Code of Civil Procedure answers the question. Same reads as under :--
"150. Transfer of business -- Save as otherwise provided, where the business of any Court is transferred to any other, the Court to which the business is so transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred."
4. This provision of law, by virtue of a legal fiction, empowers the transferee Court to adjudicate upon all matters arising out of the proceedings and enables the transferee Court to perform the same duties and exercise the same powers as imposed by or conferred upon the transferring Court under the scheme of Code of Civil Procedure. In the present case order of status-quo was passed by this Court on 5-9-1995. Subsequently the suit was transferred to the Court of District Judge, Kathua. The status-quo order was alleged to have been disobeyed. The plaintiff filed the present petition. This petition obviously is covered by the Code itself. The contention raised here is that the District Judge, Kathua will not be competent to try this petition.
5. The test laid down by a Full Bench of Orissa High Court in AIR 1971 Ori 89 (at page 91) for determining as to whether or not transfer of business in a case was effected, was as to whether or not business of adjudicating upon all the matters and control of files is removed from one Court to the other. In the present case there is no disagreement on the point that the whole case has been transferred for adjudication to the transferee Court. It is the District Court only which has the exclusive control over the matter and the files of the case. Therefore, the business of the matter will admittedly be deemed to have been transferred to that Court.
6. The point came up for adjudication before a Division Bench of Punjab & Haryana High Court in case Kalian Chand v. , FakiV Chand MANU/PH/0082/1968. Punjab and Haryana High Court was also dealing with a contempt petition, after transfer of the case to a subordinate Court. The Court laid down the following proposition of law (at page 376) :--
"The transferee Court should have powers co-extensive with the transferor Court, Section 150 specially provides that. But if transfer is of a particular case from the file of one Court to another under Section 24, there is no reason in principle that the transferee Court should not be held to have the same power as the Court from which the case has been transferred. The disobedience of the order of a Court under Order 39, Rule 1, cannot be punished by the transferee Court. Such a view will necessarily lead to bifurcation of the proceedings in the event of a transfer under Section 24, the transferor Court to retain the proceedings arising out of Order 39, Rules 1 and 2(3) and the remaining proceedings in the suit to be conducted by the transferee Court. In a conceivable case similar proceedings may have to be taken in the transferee Court as well. Confusion will considerably be added if the suit has to be transferred again under Section 24. The view which found favour with the High Courts of Patna and Allahabad appears to me to be in consonance with reason and the real intention of the legislature."
7. Prior to this MANU/BH/0024/1957, also had laid down that the transferee Court has the jurisdiction to try such an application. Patna view was taken note of and followed by the Punjab and Haryana High Court.
8. I squarely fall in line with the view taken by Punjab and Haryana High Court and on the foregoing analogy hold that whenever a suit, after passing an interlocutory order, is transferred to a subordinate Court, the business of the transferring Court will be deemed to have been transferred to the subordinate Court and any motion for disobedience of an order passed by the transferring Court can lie before the Court to which the matter has been transferred.
9. It is Rule 2-A of Order 39 which makes provision for disobedience of an ad interim injunction passed in terms of Rule 2. Therefore, an application projecting disobedience can be safely termed to be an offshoot of the action taken under Rule 2. After the transfer of business to the transferee Court, it will be the latter Court which will have jurisdiction to try this application. This is particularly so when Rule 2-A expressly makes it clear that "the Court to which the suit or proceeding is transferred may pass orders" in a particular mode.
10. I, therefore, transfer this petition to District Judge Kathua for disposal under law.
11. In the present case, during the pendency of this petition, respondent filed C.M.P. No. 132/95 in which notice was issued on 5-9-1995 and again status-quo order was passed on the same day. Perhaps at that time the Court did make up its mind with regard to the legal position as laid down above. Anyhow, the two orders do not find themselves to be at variance. The intention of the Court while passing the second order also has been to preserve the suit property in the same position which existed on the date of passing of the order. Therefore, I dispose of C.M.P. No. 132/95, after observing that the same is superfluous . However, in case Mr. Sharma has any grievance with regard to a change in the nature of the subject matter, that I feel is fully covered by these proceedings and for that matter survival of C.M.P. No. 132/95 is not necessary.
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