The High Court
Case Details
THE HIGH COURT OF MEGHALAYA AT SHILLONG. CR(P) NO.(SH)28/2012 1. 2. 3. 4. 1. 2. 3. Sri. Haresh Vaswani, S/o Kishan Chand Vaswani, Hotel Broadway, Police Bazar, Shillong. Sri.Dilip Vaswani, S/o Kishan Chand Vaswani, Hotel Broadway, Police Bazar, Shillong. Shri.Manohar Vaswani, S/o S/o Kishan Chand Vaswani, Hotel Broadway, Police Bazar, Shillong.
Legal Reasoning
Shri.Jiwat Vaswani, S/o Kishan Chand Vaswani, Hotel Broadway, Police Bazar, Shillong. -Vs- Shri.Pishu Vaswani, S/o (L)Hasumal Vaswani, Laitumkhrah Main Road, Shillong-793003. Shri.Raju Vaswani, S/o (L)Hasumal Vaswani, Laitumkhrah Main Road, Shillong-793003. Shri.Iswar Vaswani, S/o (L)Hasumal Vaswani, Laitumkhrah Main Road, Shillong-793003. :::: Petitioners :::: Respondents BEFORE THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH For the Petitioners For the Respondents Date of hearing Date of Judgment & Order : : : : Mr. HS Thangkhiew, Sr.Adv. Mr. N Mozika, Adv Dr. ODV Ladia, Adv 24.06.2013 24.06.2013 CR(P) NO.(SH)28/2012 Page 1 of 6 (cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15)(cid:9)(cid:9)(cid:9)(cid:9) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3)(cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3) (cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) (cid:6)(cid:12)(cid:13)(cid:11)(cid:12)(cid:10)(cid:14)(cid:15) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3) (cid:1)(cid:2)(cid:3)(cid:4)(cid:5)(cid:6)(cid:7)(cid:8)(cid:9)(cid:10)(cid:7)(cid:3)(cid:9)(cid:11)(cid:12)(cid:3) Heard Mr. N Mozika, learned counsel appearing for the petitioners as well as Dr. ODV Ladia, learned counsel appearing for the respondents. After hearing Mr. N Mozika, learned counsel for the petitioners at some length, Mr. HS Thangkhiew, learned senior counsel continued to urge the case of the petitioners. 2. The facts leading to the filing of the revision petition in short compass are noted. The respondents/plaintiffs No.1-3 had instituted the T.S. No.5(H)2001 against the present petitioners in the Court of the Assistant District Judge, Shillong. The relief sought for in T.S.No.5(H)2011, reads as follows:- “A) Declaration that the Plaintiffs are legally entitled to ½ of the entire property as mentioned in the Schedules A, B, C, D, E and F etc. as assessed at the final stage. Declaration that mutation of the property done by the B) Defendant No.2 to 5 in respect of the property as mentioned in Schedule ‘A’ which is a joint family property is illegal and invalid in view of the Hon’ble Gauhati High Court’s order dated 30.09.1996 passed in M.A. (F) No.1(SH) of 1993. C) Declaration that the Defendant No.1 to 5 are bound to give ½ of the entire real estate and business capital with share of profits thereof derived out of the family business run directly under the care of the Defendant No.1-5 which are illegally held by them and any division of the same done and or any testamentary deposition has been attempted to behind the plaintiffs back will be subject to decision of the present suit being illegal. D) Preliminary decree in terms of 50 percent share of the plaintiffs in the proportion as described in the Schedule of A, B, C, D, E and F etc. Effecting partition in terms of the preliminary decree by E) commission to be appointed by the Court. Final decree on the basis of report of the Commissioner and F) the preliminary decree. Permanent injunction in terms of the prayer as made in the G) miscellaneous application that forms a part of this suit. CR(P) NO.(SH)28/2012 Page 2 of 6 H) Full cost of the suit. Such other relief or reliefs to which the plaintiffs may be I) found entitled and for which act of kindness, the plaintiffs as in duty bound shall every pray.” 3. It is an admitted fact of both the parties that the present respondents also filed Misc. Case No.3(H)2001 (reference:- T.S.No.5(H)2001) in the Court of the Assistant District Judge, Shillong, praying for an injunction restraining the defendants No.1-4 (the present petitioners) and their agents, employees and workmen from selling/alienating and/or defacing real estates as described in the Schedules A, C and D and manipulating of accounts and concealing stock-in-trade of the properties as mentioned in the Schedule F to the plaint etc. 4. While the said application i.e. Misc. Case No.3(H)2001 (reference:- T.S.No.5(H)2001) is still pending in the Court of the Assistant District Judge, Shillong, another application being Misc. Case No.4(H)2001 (reference:- T.S.No.5(H)2001) was also filed in the Court of the Assistant District Judge, Shillong for appointment of the receiver. The said two applications are still pending before the learned Assistant District Judge, Shillong. 5. It is an admitted fact that the Presiding Officer of the Court of the Assistant District Judge, Shillong was on medical leave w.e.f. October, 2011 to February, 2012. It appears that the said title suit i.e. T.S. No.5(H)2001 was not taken up for further proceedings because of the leave taken by the Presiding Officer of the Court of the Assistant District Judge, Shillong. The respondents filed an application being Misc. Case No.26(H)2011 under Section 11(1) of the Bengal, Agra, Assam and Shillong Civil Courts Act, 1983 read with Section 151 of the CPC for transferring the said T.S.No.5(H)2001 and Misc. Applications to any competent Court and also for passing the interim order restraining the CR(P) NO.(SH)28/2012 Page 3 of 6 opposite parties (i.e. present petitioners) from transferring the suit property i.e. the suit land of the said T.S.No.5(H)2001. 6. It is nobody’s dispute that the said Misc. Case No.26(H)2011, under Section 11(1) of the of the Bengal, Agra, Assam and Shillong Civil Courts Act,
Decision
1983, was to be taken up and disposed of by the District Judge only, inasmuch as, the District Judge is the competent Court to transfer the case from one subordinate court to another for the reasons mentioned in the Section itself i.e. Section 11(1) of the of the Bengal, Agra, Assam and Shillong Civil Courts Act, 1983. 7. The learned District Judge before whom the said Misc. Case No.26(H)2011 was pending passed an order dated 16.12.2011 for maintaining status-quo of the suit property. Again on 10.02.2012, the learned District Judge, Shillong, in the said Misc. Case No.26(H)2011 passed an order on 10.02.2012 that the Assistant District Judge, who was on leave had resumed her duties and transferred the case i.e. the said Misc. Case No.26(H)2011 to the Court of the learned Assistant District Judge, who have no jurisdiction to dispose of the case. A copy of the said order dated 10.02.2012 is available in the memo of the present revision petition. 8. A bare perusal of the order dated 10.02.2012, it is crystal clear that the learned District Judge had committed mistake while sending the said case i.e. Misc. Case No.26(H)2011 filed under Section 11(1) of the Bengal, Agra, Assam and Shillong Civil Courts Act, 1983 to the Court of the Assistant District Judge for disposal. It is a settled law that the case filed before the District Judge, cannot be transferred for disposal by the subordinate court, inasmuch as, the District Judge is the concerned Court to dispose of the said case for which the District Judge is the only competent Court under the Bengal, Agra, Assam and CR(P) NO.(SH)28/2012 Page 4 of 6 Shillong Civil Courts Act, 1983. For convenience, it will be profitable to quote Section 11(1) of the Bengal, Agra, Assam and Shillong Civil Courts Act, 1983, which reads as follows:- “11 : Transfer of proceedings on vacation of office of Subordinate Judge:- (1) In the event of the death, resignation or removal of a Subordinate Judge, or of his being incapacitated by illness or otherwise for the performance of his duties or of his absence from the place at which his Court is held, the District Judge may transfer all or any of the proceedings pending in the Court of the Subordinate Judge either to his own Court or to any Court under his administrative control competent to dispose of them.” 9. The learned Assistant District Judge, who has no jurisdiction and power to dispose of the said case i.e. Misc. Case No.26(H)2011 of the Court of the District Judge, Shillong had passed the impugned order dated 02.07.2012 and therefore, the impugned order dated 02.07.2012 is an order passed by the Assistant District Judge, Shillong, without any jurisdiction. In the result, the impugned order dated 02.07.2012 is hereby set aside. 10. Dr. ODV Ladia, learned counsel for the respondents contended that the said Misc. Case viz. Misc. Case No.3(H)2001 (reference:- T.S.No.5(H)2001) and Misc. Case No.4(H)2001 (reference:- T.S.No.5(H)2001), now pending before the Court of the Assistant District Judge, Shillong are required to be disposed of as expeditiously as possible. Mr. HS Thangkhiew, learned senior counsel for the petitioners is also of the same view. Accordingly, the learned Assistant District Judge, Shillong is directed to dispose of the said Misc. Case No.3(H)2001 (reference:- T.S.No.5(H)2001) and Misc. Case No.4(H)2001 (reference:- T.S.No.5(H)2001) as expeditiously as possible, but not later than three months from the date of receipt of a certified copy of this judgment and order. CR(P) NO.(SH)28/2012 Page 5 of 6 11. The revision petition is allowed with the above observations and directions. (cid:14)(cid:16)(cid:17)(cid:9) JUDGE CR(P) NO.(SH)28/2012 Page 6 of 6