This is an application under Section 24 of the Code of Civil Procedure seeking transfer of Title Suit No.204 of 2014 pending in the Court of the learned Civil Judge (Senior Division) at Uluberia, to any of the learned Court of Civil Judges (Senior Division) at Howrah.

Mr. Kushal Chatterjee, learned Advocate appearing for the opposite party/defendant, has made a preliminary objection about the maintainability of the application. He has drawn attention of this Court to an order passed on 25th April, 2017 in Misc. Case No.59 of 2016 filed by the present petitioner before the Court of the learned District Judge at Howrah. Mr. Chatterjee also submitted that once an application under Section 24 of the Code of Civil Procedure has been decided by the District Court on a given fact, the petitioner, on being refused by the District Court, cannot maintain a separate application under Section 24 of the Code of Civil Procedure before this Court on the selfsame fact.

Seeking transfer of the suit the petitioner filed an application under Section 24 of the Code of Civil Procedure in the District Court and made out the following grounds for transfer :-

1) That the opposite party, Sourav Sasaru, is a practicing Lawyer at Uluberia Court and Amta Court. He has a huge influence at Uluberia Court. He has lot of manpower and money. The wife of the said opposite party, namely, Smt. Piyali Sasaru, is also a practicing Advocate of Uluberia Court. The two uncles of the opposite party, Sri Arun Sasaru and Sri Barun Sasaru, both are also Lawyers of Uluberia Court attached to the same Sheristha of the opposite party.

2) That the petitioner was facing inconvenience in attending the Court for the purpose of day-to-day tadbir as well as taking necessary steps as per instructions of her learned Advocate, more importantly, it would be inconvenient for her to get any practicing Advocate.

Such prayer was opposed by the present opposite party by filing written objection. The allegations and counter-allegations made by the parties have been dealt with by the learned Judge in his order dated 25th April, 2017 and came to a conclusion that the petitioner and the opposite party are brother and sister and their uncles, as referred to in the petition, are also uncles common to both the parties. Prior to her marriage the petitioner also used to reside in the said house where the opposite party/defendant and their uncles are residing now. That apart, the opposite party/defendant and his two uncles are Advocates of Uluberia Court. At the same time, the petitioner and her father was also a renowned Lawyer of Uluberia Court. Once upon a time, the husband of the petitioner was also an Advocate of Uluberia Court and now he has been serving in the Haldia Dock Complex and used to commute his journey from his own house. It has been pointed out in the order that, although, the petitioner is residing in her in-laws house with two children about 10 years and 7 years of age, but both of them are studying in Kolkata. The petitioner is managing her family from her in-laws house in Chatterjeehat.

That the petitioner never disclosed that the opposite party/defendant is her full-blooded brother and that she is a Law Graduate having registration number with the Bar Association of Uluberia Court. Therefore, the petitioner suppressed the material fact.

Although, the learned Advocate for the opposite party/defendant filed a certified copy of order no.10 dated 15/01/2015 of the learned Civil Judge (Senior Division), Uluberia, Howrah, wherefrom it would transpire that the petitioner, Monalisa Koley, is also a practicing Advocate of the then Bar Association and was appointed as Advocate Commissioner for local inspection in T.S. No.89/14 but the learned Advocate for the petitioner filed another certified copy of T.S. No.89/14 which would reveal that the plaintiff of that Title Suit filed a petition praying for changing the Advocate Commissioner as the learned Commissioner is not a member of Bar Association of Uluberia and on being heard both sides the name of the petitioner was substituted by another practicing Advocate.

Learned Additional District Judge, while disposing of the petitioners application under Section 24 of the Code of Civil Procedure, disbelieved the cause of hardship of the petitioner and rejected the application under Section 24 of the Code of Civil Procedure on merit. Mr. Chatterjee submitted that once an application under Section 24 has been decided by the learned District Judge on merit on the selfsame fact and on the selfsame cause, second application cannot be maintained. According to him, this application is not maintainable in law and should be dismissed without going into the merit of the case at all.

Mr. Tanmoy Mukherjee, learned Advocate appearing for the petitioner, has strenuously argued before this Court that Section 24 of the Code of Civil Procedure gives concurrent jurisdiction to both District Court and the High Court. According to him, even on a given fact the application under Section 24 of the Code has been dismissed by the learned District Judge, there is no bar under Section 24 of the Code of Civil Procedure to file a separate application under the said provision before this Court even on the selfsame cause and selfsame fact. In this regard provisions of Section 24 of the Code of Civil Procedure are quoted below :-

"24. 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 desire 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 is thereafter to try or dispose of such suit or proceeding 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, -

a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

b) "proceeding includes a proceeding for the execution of a decree or order.

(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."

From a plain reading of Section 24 of the Code of Civil Procedure it appears that the Legislature intended to say that the High Court OR the District Court may, at any stage, a) transfer any suit ... b) withdraw any suit ... etc.

According to Mr. Mukherjee, High Court and District Court both have jurisdiction to hear an application under Section 24 of the Code of Civil Procedure. It has been argued by Mr. Mukherjee that even after dismissal of the application under Section 24 of the Code of Civil Procedure by the District Court on the selfsame fact without any change of circumstances, similar prayer under Section 24 of the Code can be maintained before the High Court. In support of his submission he has referred to a decision in the case of Gorachand Das - Vs. - Dipali Das, reported in 80 CWN 777 by a Honble Division Bench of this Court. While going through the said decision it appears, firstly, that Their Lordships exercised a jurisdiction not only under Section 24 of the Code of Civil Procedure but also under Section 115 of the Code of Civil Procedure for transfer of the suit. Therefore, while exercising a jurisdiction under Section 115 of the Code of Civil Procedure, it was quite amenable before Their Lordships to criticise the order passed by the learned District Judge in an application under Section 24 of the Code of Civil Procedure and had an opportunity to substitute the said order by a fresh order under Section 24 of the Code of Civil Procedure.

Secondly, the decision is based on a totally different fact situation. In that case, bias of Court was apparent from the order passed by the learned District Court. If bias of a Court is complained of before a higher forum, naturally, it is the duty of the High Court or District Court to withdraw the proceeding from the subordinate Court whose bias is complained of. In the present application, however, the petitioner has not at all ventilated anything about such bias of the Court. Therefore, the submission that the proposition laid down in the said decision is sacrosanct to be followed, that a second application under Section 24 of the Code of Civil Procedure is always maintainable, cannot be the absolute Rule. It requires further elucidation.

So far the decision referred to by Mr. Mukherjee in the case of Diptendu Nayek & Ors. - Vs. - State of West Bengal, reported in 93 CWN 119 [LQ/CalHC/1988/356] , the judgment has been delivered by a Special Bench of our High Court. The Special Bench was constituted to solve the question as to whether an application for anticipatory bail would lie to the High Court after the Court of Session rejects it. Question arose before Their Lordships in the Special Bench, when two learned Judges of our Court differed, one preferring to follow the earlier Division Bench decision in the case of Amiya Kumar Sen - Vs. - State, reported in 1979 Criminal Law Journal 288 [LQ/CalHC/1978/405] and the other declining to follow it. While drawing an analogy to the provisions of Section 438 of the Code of Civil Procedure, 1973, dealing with "directions for grant of bail to person apprehended arrest" with that of the provisions of Section 397(3) and so also Section 399(3), even though the expression "High Court or the Court of Session" is used in it indicating that under the Section a person can move only one Court or the other but not both, one after another.

While giving answer to the question on reference, the Honble Special Bench also made a commentary in respect of the power of High Court to entertain an application under Section 24 of the Code of Civil Procedure of a petitioner, who unsuccessfully moved an application under Section 24 of the Code in the District Court. While dealing with the provisions of Section 438 where it has said "when any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this Section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail." Their Lordships tried to draw an analogy on the provisions of Section 24 of the Code of Civil Procedure with the word or which has been used in Sections 438(1) and 438(2) with that of the expression "the High Court or the District Court" used in Section 24 of the Code of Civil Procedure. Their Lordships were of the view that a party may apply afresh to the High Court under Section 24 of the Code even after moving to District Court without success. In such a situation, regard being had to the principle of law laid down in the aforesaid decision in Diptendu Nayek (supra) which also considered the ratio decided by a Division Bench of our Court in Gorachand (supra). There is no dispute that even an unsuccessful party moving an application under Section 24 of the Code can also move an application under Section 24 of the Code again in the High Court.

Therefore, on a very careful scrutiny of the referred judgments and the propositions laid down therein, I am of the clear view that the present petition under Section 24 of the Code of Civil Procedure, at the instance of Mr. Mukherjees client, cannot be held to be not maintainable for the sole reason that he moved previously before the District Court under Section 24 of the Code of Civil Procedure.

While hearing the question of maintainability of the application under Section 24 before this Court, I also invited the parties to address the Court on the merit of the petition before this Court keeping the question on maintainability open for decision. Parties agreed and advanced their argument on the merits of the case.

Now, the question arises whether the selfsame petition which has been rejected by the District Court can again be placed before the High Court only after making a change in the title page meaning thereby that the grounds which were agitated before the District Court on which the party was found unsuccessful, can again agitate those very grounds in moving an application under Section 24 of the Code before the High Court. This is to be answered by this Court.

While arguing the case, Mr. Mukherjee pointed out before this Court that there is yet another decision of Andhra Pradesh, copy of which could not be furnished, which decided the point in issue in this application under Section 24 of the Code of Civil Procedure. I have gone through the said judgment in the case of Munnangi Ramakrishna Rao - Vs. - Dr. Vanakuru Venkata Siva Ramakrishna Prasad & Ors., reported in (2003) 4 ALT 570. [LQ/APHC/2003/131] The decision in Munnangi (supra) is a decision of Division Bench where a matter was referred to the Division Bench on two questions -

a) In view of the language of Section 115 of the Code, a revision as against an order passed by the District Court under Section 24 of the Code, whether can be maintained

b) Whether a party who was unsuccessful before the District Court in a transfer O.P. without questioning the same either in Section 115 of the Code or under Article 227 of the Constitution of India can again invoke the jurisdiction of this Court under Section 24 of the Code on the ground of concurrent jurisdiction

The issue in our case is absolutely identical with this second question in the decision of Munnangi (supra). The Honble Division Bench of the Andhra Pradesh considering the decisions of our Court in Gorachand (supra) and Diptendu Nayek (supra) held that a petition under Section 24 of the Code of Civil Procedure is maintainable even without the order of dismissal of such order passed by the District Court being questioned either under Section 115, C.P.C., or under Article 227 of the Constitution of India. But yet, the petitioner has to overcome the hurdle of the question whether he can be directed to move an application under Section 24 of the Code on the selfsame ground without there being any change of circumstances.

On perusal of the petition filed before the District Court in Misc. Case No. 59 of 2016 (application under Section 24 of the Code of Civil Procedure) it appears that the petitioner placed the following facts in paragraphs 5, 6 and 7 thereof. Those are set out below:

"5. That the opposite party Sri Sourav Sasaru is a practising lawyer at Uluberia Court and Amta Court. He has a huge influence at Uluberia Court. He has lot of manpower and lot of money power. The wife of the opposite party Smt. Piyali Sasaru is also practising Advocate of Uluberia Court. The two uncle of the opposite party Arun Sasaru and Sri Barun Sasaru both are also lawyers at Uluberia Court attached with the same sherishta of the opposite party.

6. That your petitioner is facing extreme inconvenience in attending the Court for the purpose of day to day to tadbir as well as taking necessary steps as per instructions of the Ld. Advocate of your petitioner, most importantly it would have been very much convenient for your petitioner, if your petitioner could have engaged any advocate practicing at Uluberia Court but on account of state of affairs, as stated hereinabove your petitioner could not appoint any advocate on her behalf practising at Uluberia Court as they refused to accept brief.

7. That your petitioner begs to submit that in order to allowing your petitioner to conduct the case justly and properly and also with a view to avoid change of defeat not on the ground of no merit of the case but for other reasons, which has strong probability as apprehended by your petitioner and such apprehension is based on practical experience, the suit pending before the Ld. Civil Judge Sr. Divn., at Uluberia is to be withdrawn and to transfer the same to any of the Civil Judge Sr. Divn. At Howrah Court, otherwise the justice will be denied to your petitioner resulting irreparable loss and injury."

In paragraphs 15 and 17, similar grounds have been agitated in the present petition under Section 24 of the Code. Only difference in the petition has been added by the petitioner is that in order to attend Uluberia Court, firstly, she has to reach from her residence Ramrajatala Railway Station which will take 15 minutes and thereafter from Ramrajatala to Fuleswar Station by train she has to travel 45 minutes. Apart from those taken in the District Court, in this application petitioner has not taken any other new grounds and the circumstances remain unaltered.

Even without considering the question whether the District Court has rightly or wrongly rejected the petitioners application under Section 24 of the Code, this Court also independently is not convinced about the grounds which have been made for seeking transfer of the title suit pending in the Court of the learned Civil Judge (Senior Division) at Uluberia. The petitioner cannot claim transfer of a suit as a matter of right. In the petition no reasonable ground has been made which can convince this Court to exercise jurisdiction under Section 24 of the Code. In the petition, nowhere it is stated that because of the influence of a practicing Advocate on the other side either there is a chance of the Court becoming bias or that the other practicing Advocates have refused to accept brief on her behalf. Then simply by making an allegation against some practicing Lawyers or apprehending bias of a Court the petitioner cannot seek transfer of declaratory suit from the Court of a competent jurisdiction.

In this case, no element of bias can be found in the petition filed by the petitioner. Therefore, simply at the bar if such submission is made that two lawyers on the opposite side are members of the Bar and that is the sole reason for the petitioners apprehension not to get justice from that Court, cannot be accepted. Accordingly, I am unable to accept the prayer made by the petitioner for transfer of the suit and this Court declines to exercise jurisdiction under Section 24 of the Code of Civil Procedure, as a result thereof, the application stands dismissed.

There will, however, be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.