@JUDGMENTTAG-ORDER
P.S. Narayana, J.@mdashHeard the counsel on record.
2. The C.R.P. is filed as against an order in O.P.No.1252 of 2000 on the file of the Chief Judge, City Civil Court, Hyderabad.
3. The revision petitioner is the petitioner in O.P.No.1252/2000 on the file of the Chief Judge, City Civil Court, Hyderabad. It is the case of the revision petitioner that he is the owner and is in absolute possession of the property in premises bearing No.1-2-265, Corner Cottage, S.D.Road, Secunderabad, and he had instituted a suit in O.S.No.125/2000 on the file of III-Additional Senior Civil Judge, Secunderabad, for declaration and injunction. The first respondent had filed a suit in O.S.No.1097/96 on the file of the I-Additional Junior Civil Judge, Secunderabad, and the said suit became part heard already. Since both the aforesaid suits substantially involve same questions of fact and law and they being substantially between the same parties, the petitioner had filed O.P.No.1252/2000 on the file of the Chief Judge, City Civil Court, Hyderabad, for a direction to withdraw O.S.No.1097/96 on the file of the I-Additional Junior Civil Judge, Secunderabad and make over the same to the Court of III-Additional Senior Civil Judge to be tried along with O.S.No.125/2000, in the interest of justice.
4. The O.P. was opposed by respondent No.1 by filing a detailed counter.
5. The Court below by an order 23.2.2001 had dismissed the said O.P. and aggrieved by the same, the present C.R.P. was filed by the revision petitioner.
6. Sri R. Chandrasekhar Reddy, the learned counsel representing the revision petitioner had taken me through the pleadings of the parties in both the suits and also the issues framed and had contended that inasmuch as the parties are substantially the same and the subject matter of the suits being same, in the interest of both the parties, the Court below should have ordered the O.P. as prayed for instead of dismissing the said O.P. The learned counsel also had contended that the ground on which the O.P. was dismissed is to the effect that the entire evidence in O.S.No. 1097/96 was over and that it is not a fact. The learned counsel also had placed reliance on KANURU BASAVA PUNNARAO v. PUTTAGUNTA NAGESWARA RAO AND OTHERS (1), ROSAMMA JOSEPH v. P.C.SEBASTIAN (2) and also SILVER GRANITES v. MURUGAN AND OTHERS (3).
7. Sri T. Surya Kiran, the learned counsel representing the first respondent had raised a preliminary objection that the very O.P. and also the C.R.P. are to be dismissed on the ground of non-impleading of all the parties. The learned counsel had pointed out that Dr. I. Fernes, who is impleaded as second defendant had not been impleaded as a party in the O.P. and hence, on this ground alone the dismissal of the O.P. itself is justified and hence, the impugned order does not warrant any interference. The learned counsel also had pointed out that there will be delay in disposal of the suit instituted by the revision petitioner and as far as his suit is concerned, already the suit is a part-heard matter and in the facts and circumstances of the case, the Court below had arrived at a correct conclusion in dismissing the O.P. The learned counsel also had pointed out that withdrawing the case for the purpose of being tried by another Court, when the other side is very particular that, common evidence should not be recorded in both the suits, will serve no purpose and hence, the prayer was rightly rejected by the Court below.
8. Section 24 of the CPC deals with ''general power of transfer and withdrawal''. Sub-section (1) of Section 24 of the CPC reads as follows:
(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) re-transfer the same for trial or disposal to the Court from which it was withdrawn.
9. The words expressed are "after hearing such of them as desired to be heard", "of its own motion, without such notice".These words clearly go to show that, no doubt, notice to parties is contemplated u/s 24 of the Code of Civil Procedure, but as far as hearing is concerned, the hearing is confined to such of them as desired to be heard or it can be of its own motion without such a notice. It is, no doubt, true that the learned counsel for the petitioner had confined himself only to a portion of the relief i.e., transferring of the suit and not trying of the suit along with other suit by way of joint trial or by recording common evidence. It is for the parties to adopt any method either at the appropriate stage, as far as recording of common evidence is concerned. In the present case, the suit in O.S.No.1097/96 is a part-heard matter whereas the other comprehensive suit in O.S.No.125/2000 is yet to be commenced. However, it is properly noticed that the pleadings are complete and issues have also been settled and even O.S.No.125/2000 is ripe for trial. The contention of the learned counsel for the respondent that there is further delay if O.S.No.1097/96 is transferred, cannot be said to be a sustainable contention in the light of the facts and circumstances of the case. In KANURU BASAVA PUNNA RAO v. PUTTAGUNTA NAGESWARA RAO AND OTHERS (1 supra), it was held that normally the plaintiff has the right to choose the place of suing and the mere convenience of the defendant or his witnesses cannot be a valid ground for the transfer of the suit, but where the defence in all the suits is practically one and the same and common questions of fact and law arise for decision, to secure the ends of justice and to prevent multiplicity of proceedings and also the possibility of conflicting judgments, courts have generally held that it is better to have all such suits tried at one place only by the same Court and ultimately, the question depends on the interests of justice and not the convenience of one party or the other. In ROSAMMA JOSEPH v. P.C.SEBASTIAN (2 supra) it was held where the litigating parties in both the suits were one and the same and the subject-matter also is one and the same and in view of the common nature, facts being intertwined and overlapped, the possibility of conflicting decisions, if the suits were tried separately could not be totally ruled out, transfer and joint trial was hence ordered. In SILVER GRANITES v. MURUGAN AND OTHERS (3 supra) it was held that in the case of suits relating to the same subject matter, High Court suo motu transferred the matter to Principal Judge in exercise of powers under Article 227 of the Constitution of India and Section 24 of the Code of Civil Procedure.
10. It is, no doubt, true that the counsel for the revision petitioner had confined himself only seeking transfer of O.S. No.1097/96 to the Court of III-Additional Senior Civil Judge. But, however, in the relief portion for in the O.P., joint trial also was prayed for. Since O.S.No.1097/96 on the file of the I-Additional Junior Civil Judge, Secunderabad, is already a part-heard matter, the parties are at liberty to file an independent application, if they are so advised, before the III-Additional Senior Civil Judge, for joint trial. Hence, in the interest of justice, the suit in O.S.No.1097/96 on the file of the I-Additional Junior Civil Judge, Secunderabad, is withdrawn and made over to the III-Additional Senior Civil Judge. The C.R.P. is accordingly allowed. But, however, as already observed, the parties are at liberty to move an independent application seeking their relief of joint trial, if they are so advised. The C.R.P. is accordingly allowed. But, in the facts and circumstances of the case, no order as to costs.
