Mohit
Kumar & Ors Vs. Dato Mohan Swami & Ors [2004] Insc 184 (23 March 2004)
R.C.
Lahoti & Dr. Ar. Lakshmanan.
ORDER R.C. Lahoti, J.
By
these petitions under Section 25 of the Code of Civil Procedure, 1908, the
petitioners herein seek Original Suit No.865 of Vikram Singh and Ors."
pending in the Court of Addl. District Judge- II/FTC, Dehradun, Uttaranchal,
being transferred to a court of competent jurisdiction at Delhi. F.A.O. 52
(D)/2002 pending at High Court of Uttaranchal at Nainital titled "Himalayan
Institute Hospital be transferred to the High Court of Delhi at New Delhi.
F.A.O. 52 (D)/2002 is an offshoot of other pending litigation between the
parties.
The
prayer for transfer has been opposed on behalf of the respondents.
It is
noteworthy that vide Order dated 24.11.03 passed in S.L.P. (c) Nos.11517-11518
of 2003, on the learned counsel for the parties agreeing for this Court
exercising its jurisdiction under Section 25 of the CPC for transferring two
other proceedings pending in two courts between the parties for hearing and
decision in one court, this Court has directed Testamentary Case No.1 of 2002
pending in the High Court of Uttaranchal at Nainital and Letter of
Administration Case No.26 of 2002 pending in High Court of Delhi (Original Side)
at Delhi, to be transferred for hearing and decision to the High Court of
Judicature at Allahabad, Bench seat at Lucknow. The said order of transfer has
been carried out and the two matters are now before the High Court of
Judicature at Allahabad, Bench seat at Lucknow, for hearing and decision in its
Original Jurisdiction.
Though
the prayer for transfer has been opposed on behalf of the respondents, having
heard the learned counsel for the parties we are of the opinion that the suit
which is now sought to be transferred is definitely associated with the two
matters already ordered to be transferred. Although initially we were reluctant
to accede to the present prayer for transfer, however, at the end, we have
formed an opinion that the ends of justice demand such transfer being ordered.
Accordingly,
Original Suit No.865 of 1997 titled as "Lt. Gen. M.L. Dar Addl. District
Judge-II/FTC, Dehradun, Uttaranchal and F.A.O. 52 (D)/2002 pending in the High
Court of Uttaranchal at Nainital titled Singh and Ors.", are directed to
be transferred for hearing and decision at Lucknow Bench Seat of the High Court
of Judicature at Allahabad.
So far
as the suit is concerned we are conscious that already over-burdened High Court
shall have another original suit added to its pendency and the learned
Presiding Judge shall have to record evidence. We, therefore, feel inclined to
make an observation that the learned Presiding Judge now seized of the hearing
of the suit pursuant to this order of transfer, may liberally exercise his
power of permitting recording of evidence on commission excepting for such
witnesses who are very material and who the learned Judge, in his discretion,
feels necessary must appear before him that the demeanour of any witness may
need to be watched and so on.
The
transfer petitions stand disposed of. The learned Additional District
Judge-II/FTC, Dehradun, Uttaranchal and the Registrar (Judicial) of the High
Court of Uttaranchal at Nainital shall, soon on communication of this order,
transmit the records to the Registrar (Judicial) of the High Court of
Judicature at Allahabad, Bench Seat at Lucknow. The parties shall appear before
the Registrar (Judicial) at Lucknow on
26.04.2004 for the purpose of ascertaining if the records have reached there
and obtaining the date of hearing before the court.
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