IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON BLE MR. JUSTICE B.MANOHAR. W.P.Nos.46210/2014 & /2014(GM-CPC)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28 TH DAY OF JANUARY 2015 BEFORE THE HON BLE MR. JUSTICE B.MANOHAR W.P.Nos.46210/2014 & /2014(GM-CPC) BETWEEN: Sri.A.Sudhakar Reddy, S/o.A.Venkatasubba Reddy, Aged about 44 years, Residing at No.10/4-1, Park Road, Jeevanahalli Cox Town, Bangalore Petitioner (By Sri.S.V.Giridhar, Advocate) AND: 1. M/s.BEML (HQRS & MKTG) SC/ST Employees Welfare Association, No.36, 5 th Floor, Unity Building, J.C.Road, Bangalore Represented by its President/Secretary. 2. Sri.B.Ravi, S/o.Bhyregowda, Aged about 51 years, R/at Mallamachanahalli Village, Shidlaghatta Taluk, Kolar District.

2 2 3. Smt.Mala Tony W/o I.S.Rack Tony, Aged about 45 years, Residing at No.B-2, Officers Quarters, BEML Nagar, Kolar Gold Field (KGF) Sri.N.Murthy S/o.Narayanaswamy, Aged about 61 years, Residing at No.101/2, Goutham Nagar, 8 th Cross, Robertsonpet, KGF. 5. Smt.P.Ramani, D/o.Late P.Parameshwaraiah, Aged about 59 years, Residing at Parameshwaran Nilaya 2 nd Main, 11 th Cross, Amaravathi Layout, Bangarpet Sri.P.Uday Kumar, S/o.Late V.Perumal, Aged about 57 years, Residing at No.214, New Oriental Lane, K.G.F Sri.K.C.Rajasekaran, S/o.K.Chinnappa, Aged about 65 years, Residing at No.11, Marappa Road, Joku Palya, Ulsoor, Bangalore

3 3 8. Smt.Mala, W/o.Sri.S.Gokul, Aged about 51 years, Residing at No.B 144, Bharat Nagar, BEML Nagar Post, Kolar Gold Field (KGF) Sri.R.Jayamuthuraj, S/o.Sri.M.Rama Swamy, Aged about 67 years, Residing at No.230, 2 nd Main, 6 th Cross, Dr.Ambedkar Nagar, Oorgaum P.O , Kolar Gold Field (KGF). 10. Smt.G.Banumathi, W/o.Sri.V.S.Panduranga, Aged about 57 years, Residing at No.119, 3 rd Block, Parandahalli, Robertsonpet to Parandahalli Road, K.G.F Sri.M.Janardhan Rao, S/o.Late K.Buddaji Rao, Aged about 49 years, Residing at No.B-181, Office Quarters, BEML Nagar , Kolar Gold Field (KGF). 12. Sri.R.Rudramurthy, S/o.Late Venkatasubba Reddy, Aged about 62 years, Residing at No.1190, Vighnesh Nivas, Vivek Nagar,

4 4 Robertson Pet , Kolar Gold Field (KGF). 13. Sri.G.R.Surya Prakash, S/o.G.K.Ramachandran, Aged about 65 years, Residing at No.994, 9 th Cross Road, Swarn Nagar, Robertsonpet, Kolar Gold Field (KGF). 14. Sri.R.Balachandran, S/o.N.Rathnavelu, Aged about 50 years, Residing at No.B-181, Office Quarters, BEML Nagar , Kolar Gold Field (KGF). 15. Sri.Murali.S.A., S/o.T.C.Shanmugam, Aged about 47 years, Residing at No.6, Vasanth Nagar, Near Canara Bank, BEML Nagar Post, Kolar Gold Field (KGF) , 16. Smt.T.K.Sathyavathi, W/o.A.S.Vidyanandan, Aged about 51 years, Residing at No.182/3, Madavi Parandahalli Extension, Robertsonpet, Kolar Gold Field. Respondents (By Smt.Ashika.K.S., Advocate for R1, Smt.Sheetal Soni, Advocate for R3, 4, 5, 6 to R16, R2 is served and unrepresented)

5 5 These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to call for records on the file of the Principal District and Sessions Judge, Bangalore Rural District, Bangalore in Misc.P.No.98/2014 dated culminating the order impugned as at Annexure A and quash the order impugned at Annexure A passed on by the Principal District and Sessions Judge, Bangalore Rural District, Bangalore in Misc.P.No.98/2014 at Annexure A and consequently allow the Misc.Petition for transfer all the suits in O.S.Nos.563/2011, 565/2011, 567/2011, 569/2011, 571/2011, 573/2011, 587/2011 and 589/2011 pending before the Principal Civil Judge and JMFC, Devanahalli, and O.S.Nos.564/2011, 566/2011, 568/2011, 570/2011, 572/2011, 588/2011, pending before the Additional Civil Judge and JMFC, Devanahalli to any one Court, which is competent to try and dispose of these suits, in accordance with law by clubbing the said suits and etc., These Writ Petitions are coming on for Preliminary Hearing in B Group this day, the Court made the following:- O R D E R Petitioner in these writ petitions challenging the order in Misc. Petition No.98/2014 passed by the Principal District and Sessions Judge, Bangalore Rural District rejecting the Miscellaneous Petition filed under Section 24 of CPC, filed these writ petitions.

6 6 2. Petitioner is the defendant in the suit filed against him. He filed Miscellaneous Petition seeking for transfer of the suit pending before two courts to one court, so that it will be helpful for both the parties to give evidence and cross-examine the parties and also to avoid conflicting decisions by two courts. 3. In elaborating his contention, the advocate appearing for the petitioner contended that respondents 3 to 16 herein filed various suits seeking for permanent injunction restraining the defendants 1 to 4 therein from interfering with their peaceful possession. Petitioner is the 4 th defendant in the said suit. In the plaint, it was contended that the plaintiffs are the members of BEML of SC/ST Employees Welfare Association. The Society formed the layout with the assistance of other defendants. Thereafter, the Society allotted the sites and the sale deeds were executed in favour of the plaintiffs. However, the 4 th defendant was interfering with the peaceful

7 7 possession and destroying the layout formed by the Society. Hence, the plaintiffs filed an application under Order 39 Rules 1 and 2 of CPC seeking for injunction. The contesting 4 th defendant in the suit, who is the petitioner before this court filed written statement denying the averments made in the plaint and also contended that the plaintiffs are not entitled for temporary injunction. The Trial Court rejected the applications filed under Order 39 Rules 1 and 2 of CPC in respect of 14 suits. Being aggrieved by the said order, the plaintiffs filed Miscellaneous Appeals before the First Appellate Court challenging the said order. The First Appellate Court set aside the order passed by the Trial Court and granted an order of temporary injunction restraining the defendants from interfering with the possession. 4. Being aggrieved by the said order, the 4 th defendant/petitioner filed W.P.No.48742/2012 and other connected matters before this Court. This Court by its

8 8 order dated dismissed the said writ petitions. Being aggrieved by the said order, the 4 th defendant preferred Special Leave Petition (SLP) before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the SLP with a direction to the Trial Court to dispose of the matter within a period of one year from the date of its order. In the meanwhile, the Trial Court proceeded with the matter and the plaintiffs were examined. The case was posted for cross-examination of defendants. However, 4 th defendant has not cross-examined the plaintiffs. Instead of that, he has filed Miscellaneous Petition under Section 24 of CPC seeking for transfer of all the cases pending before two different courts to one court. 5. The District Judge after considering the status of the cases and also the fact that the suits have been filed in the year 2011, written statement has been filed thereafter. The Trial Court rejected the interim prayer. The said order was set aside by the First Appellate Court. However,

9 9 this Court as well as the Hon'ble Supreme Court confirmed the order passed by the First Appellate Court and directed to dispose of the suit within one year. After a lapse of three years, in the month of June 2014, the application is filed seeking for transfer of all the matters to one court. The District Judge held that though the petitioner is fully aware of the fact that the subject matter in all the suits is same, he ought to have made the application much earlier. At the fag end, that too after commencement of trial, the application has been filed and there is no bonafide in the said application and the direction issued by the Hon'ble Supreme Court has to be followed. Hence rejected the same. Being aggrieved by the said order, the present writ petitions have been filed. 6. Sri.S.V.Giridhar, learned counsel appearing for the petitioner contended that the order passed by the District and Sessions Judge, Bangalore Rural District, Bangalore is contrary to law. In the transfer petition, a specific

10 10 averment has been made to the effect that if all the cases are clubbed together and posted before one court, there will not be conflicting decisions. Further, it will be helpful for the parties to lead the evidence. The petitioner has not sought transfer of all the cases from two different courts to one court, whereas the cases are before two different courts in the same building i.e. the Court of Principal Civil Judge and the Court of Additional Civil Judge. If all the 14 suits are posted before one Court, it will be helpful for the parties. However, the District Judge has not taken into consideration the said prayer in proper spirit and lost sight of intention of Section 24 of CPC and the order passed by the Trial Court cannot be sustained. In support of his contention, he relied upon the following judgments:- (i) 1990(1) SCC 4 (DR.SUBRAMANIAM SWAMY v/s RAMAKRISHNA HEGDE; (ii) (2008) 3 SCC 659 (KULWINDER KARU ALIAS KULWINDER GURCHARAN SINGH v/s KANDI FRIENDS EDUCATION TRUST AND OTHERS; (iii) (1979) 4 SCC 358 ( INDIAN OVERSEAS BANK,

11 11 MADRAS v/s CHEMICAL CONSTRUCTION COMPANY AND OTHERS. (iv) (v) ILR 2010 KAR 252 (M.V.REKHA v/s SRI.SATHYA ALIAS SURAJ; and AIR 1993 KAR 87 (SMT.NANDA KISHORI v/s S.B.SHIVAPRAKASH. 7. On the other hand, Smt.Sheetal Soni, learned counsel appearing for the respondents 3 to 16 argued in support of the order passed by the Principal District Judge and contended that the respondents are the members of the first respondent-society. The Society had formed the layout and allotted sites to its members and thereafter executed sale deeds. They have been in peaceful possession of the sites allotted to them. However, the 4 th defendant who is the petitioner herein was interfering with their peaceful possession. In view of that, the plaintiffs filed suits and obtained an interim order. Similarly situated more than 800 site holders have filed the suits. The said suits are pending consideration before two courts. Further the suits having even numbers are

12 12 allotted to the Court of Additional Civil Judge and JMFC, Devanahalli and the suits having odd numbers are allotted to the Court of Principal Civil Judge and JMFC, Devanahalli. The parties have already lead evidence and the cases are posted for cross-examination of D.W.1. At this stage, instead of cross-examining the parties, the petitioner has filed Miscellaneous petition under Section 24 of CPC seeking for transfer of cases. Apart from that the Hon'ble Supreme Court in SLP filed by the petitioner challenging the order passed by this Court had issued directions to the Trial Court to dispose of the matters within one year from the date of receipt of a copy of the order dated In order to drag on the matter, the petitioner has filed Miscellaneous petition. The learned District Judge, taking into consideration all these aspects of the matter has rejected the application. There is no infirmity or irregularity in the order passed by the District and Sessions Judge, Bangalore Rural District, Bangalore. If any Court passes any order, the said order

13 13 can be followed by another court. There cannot be any conflicting decisions. The petitioner cannot seek transfer of cases at his convenience. The plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The District Judge has passed discretionary order and the same is not liable to be interfered with by this Court and sought for dismissal of the writ petitions. 8. I have carefully considered the arguments addressed by the learned counsel for the parties, perused the order passed by the District Judge, Bangalore Rural District, Bangalore and other relevant records. 9. The records clearly disclose that the first respondent-society allotted sites to its members. Respondents 3 to 16 are some of the members. The defendants were interfering with their peaceful possession of the suit schedule property. In view of that, they filed

14 14 suits for permanent injunction. In that suit, they filed an application under Order 39 Rules 1 and 2 of CPC seeking for temporary injunction. The suits have been filed in the year The contesting 4 th defendant entered appearance and filed written statement. Initially the Trial Court rejected the interim order sought in the said application. The said order was set side by the first Appellate Court and granted temporary injunction and the said order was confirmed by this Court in W.P.No.48742/2012 and connected cases as well as the Hon'ble Supreme Court in SLP No /2014. The 4 th defendant was fully aware of the fact that the suits filed by respondents 3 to 16 have similar issues and in some cases pleadings are same, except change in the parties name and sites numbers. The defense of 4 th defendant is also common. However he has not taken any steps to make an application under Section 24 of CPC to transfer the cases before one court and allowed the Trial Court to pass interim order and went for trial. It was

15 15 reported that the matters before the Principal Civil Judge and JMFC, Devanahalli are posted for cross-examination of the plaintiffs since from The contesting defendants are taking time to cross-examine the plaintiffs. In the court of Additional Civil Judge and JMFC, Devanahalli the matters are posted for trial. In the written statement, the first defendant-society has contended that more than 800 suits have been filed by the employees who have been allotted with sites. The said 800 suits are pending before two courts at Devanahalli. The plaintiffs are different and they have to prove their case that they are the members of the Society; a site has been allotted to each of them and they are the absolute owners of the suit schedule properties. Common evidence cannot be recorded for all the plaintiffs. All the plaintiffs are to be examined individually and they have to be crossexamined, though defendants have common evidence to lead. If all the matters are posted before one court, it is impossible for one court to dispose of all 800 suits. If the

16 16 cases are equally distributed between two courts, they can dispose of the matters as expeditiously as possible. Apart from that, the Hon'ble Supreme Court has issued a direction to dispose of the suits within a period of one year from the date of receipt of a copy of the order. 10. In the present situation, out of 14 cases, 8 cases are pending before the Principal Civil Judge and JMFC, Devanahalli and the remaining 6 cases are before the Additional Civil Judge and JMFC, Devanahalli. Both the courts are situated in the same building. If large number of cases are posted before one Court, it is very difficult to record the evidence of plaintiffs. Apart from that the Trial Court is bound by the direction of the Hon'ble Supreme Court and has to dispose of all the suits within one year. The learned District Judge was of the view that suit are filed in the year 2011, though the defendants are fully aware of the fact that common facts and law are involved in these suits, no steps have been taken seeking for

17 17 transfer of all the matters to one court. The defendants allowed the court to pass interim order. When the cases were posted for trial, the present application was filed seeking transfer of cases to one court on the ground that posting of cases before two courts would lead to conflicting decisions and it will be helpful for the defendants to lead their evidence only in the year The learned District Judge rejected the said application for more than one reasons. The first reason is that delay of more than 3 years in filing transfer petition. The second reason is that the suits are already in progress, the parties have lead their evidence; common evidence of the plaintiffs cannot be lead and on the ground that the Hon'ble Supreme Court has issued a direction to the Trial Court to dispose of all the suits within a period of one year. It is the discretionary order passed by the Trial Court and that cannot be interfered with by this Court while exercising its power under Article 227 of the Constitution of India.

18 Some of the judgments relied upon by Sri.S.V.Giridhar, learned counsel for the petitioner are not disputed i.e. the principle laid down by the Hon'ble Supreme Court and various High Courts, with regard to transfer of cases from two courts to one court. In the instant case, large number of cases have been filed before two courts of Devanahalli. If all the 800 suits are to be posted before one Presiding Officer, it is impossible for him to dispose of the matters. In view of that, the matters have been equally divided between two Presiding Officers. In respect of the present 14 cases where the Hon'ble Supreme Court has issued a direction to dispose of the matters within a period of one year, they have been distributed between two Presiding Officers and the parties have already lead their evidence. At this point of time, it is not advisable to transfer all the matters to one Presiding Officer and ask to decide the same within a period of one year from the date of Supreme Court order. Hence, the order passed by the Trial Court cannot be interfered with.

19 19 I find no infirmity or irregularity in the order passed by the Trial Court. Accordingly, the writ petitions are dismissed. Sd/- JUDGE mpk/-*