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CASE NO.: Transfer Petition (civil)  44-45 of 2004

PETITIONER: Mohit Kumar & Ors.

RESPONDENT: Dato Mohan Swami & Ors.

DATE OF JUDGMENT: 23/03/2004

BENCH: R.C. LAHOTI & DR. AR. LAKSHMANAN.

JUDGMENT: JUDGMENT

O R D E R

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  1997 titled as "Lt. Gen. M.L. Dar (Ret’d.) and Ors.  Vs.  Sri.  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  Trust and Ors.  Vs.  Sri Vikram Singh and Ors." is also sought to  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  (Ret’d.) and Ors.  Vs.  Sri. Vikram Singh and Ors." pending before  Addl. District Judge-II/FTC, Dehradun, Uttaranchal and F.A.O. 52  (D)/2002 pending in the High Court of Uttaranchal at Nainital titled  "Himalayan Institute Hospital Trust and Ors.  Vs.  Sri Vikram  Singh and Ors.", are directed to be transferred for hearing and  decision at Lucknow Bench Seat of the High Court of Judicature at  Allahabad.  

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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.