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PETITIONER: ABHAY SINGH SURANA

       Vs.

RESPONDENT: INDIAN RAYON & INDUSTRIES LTD.

DATE OF JUDGMENT03/08/1988

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) SHARMA, L.M. (J)

CITATION:  1988 AIR 1870            1988 SCR  Supl. (2) 204  1988 SCC  (4) 358        JT 1988 (3)   458  1988 SCALE  (2)770

ACT:     Letters  Patent of 1865 of Calcutta High  Court:  Clause 13-Extraordinary  original jurisdiction-Exercise of by  High Court-Conditions   requisite  -Ejectment  suit  under   W.B. Premises  Tenancies Act, 1956 and title suit transferred  to High Court by consent of parties-But retransferred to  trial court-Held  disposal  of  suit by  High  Court  would  serve purpose of justice. %     Constitution   of   lndia-Art.   136-Proceeding   at   a preliminary stage-Interference-When called for.     Practice and Procedure: Disposal of suits by High  Court would serve purpose of justice-Lesser number of appeals  and possibility of settlement.

HEADNOTE:     The  appellant let out his godown to a Textile  company, which  was  subsequently  amalgamated  with  the  respondent Company, under a scheme of amalgamation approved by the High Court.     On August 29, 1985 the appellant issued a notice to  the erstwhile  company under s. 106 of the Transfer of  Property Act read with s. 13(6) of West Bengal Premises Tenancy  Act, 1956 to quit and hand over vacant possession of the  godown. Thereafter  he filed a suit for eviction in the  City  Civil Court  against  the  erstwhile Company  and  the  respondent Company. The respondent also filed a suit under Order  39(I) and (2) of the Civil Procedure Code for temporary injunction restraining the appellant from disconnecting electricity  in the said premises.     The  appellant  filed an application in the  High  Court under  clause 13 of the Letters Patent for transfer  of  the two  suits  on the ground that the  respondent  had  adopted dilatory tactics and had taken several adjournments to  file written statement, and that the original records relating to amalgamation were available in the High Court. By consent of the   parties,  the High Court transferred  these  suits  to itself  for  trying  in its   extraordinary  original  civil jurisdiction.                                                    PG NO 205     When the suits appeared before the Single Judge, it  was

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represented  that  the suits were transferred  to  the  High Court  only  on the understanding that the  suits  would  be settled and that the efforts to settle the suit had  failed. Hence,the  Judge fixed a date for hearing of the two  suits. On February 17, l9S8 the respondent filed an application for recalling the order of transfer.     Accordingly,  the High Court recalled its earlier  order and retransferred them to the City Civil Court.     Aggrieved,  the  appellant filed an  appeal  by  special leave, contending that there was simply an agreement to have the  suits  transferred  to the High  Court  for  quick  and expeditious  disposal, in view of the long delay  in  filing written statements.     The  Respondent, however, contended that  the  agreement was that the suits would be settled in the High Court.     Disposing of the appeal,     HELD:  1.1 Clause 13 of the Letters Patent  enables  the High  Court  to exercise the  extraordinary  original  civil jurisdiction.   The   Letters   Patent   contemplates    two contingencies  for the High Court to exercise  extraordinary jurisdiction,  namely, on agreement of the parties  to  that effect,  the  suits be transferred and,  secondly,  for  the purpose  of justice. It further stipulates that the  reasons for  so doing to be recorded on the proceedings in the  High Court. [209C-D)     1.2  The disposal of the suits by the High  Court  would serve the purpose of justice. It would shorten litigation in the  sense that there would be  lesser number of appeals  to the higher Court and the possibility of settlement is  there in the High Court more than anywhere else. Suits are  likely to  be more expeditiously disposed of under the  supervision of the High Court Judge than before the City Civil Court  or the Court subordinate to High Court. [2l0B]     1.3  The  purpose  of  justice  must  be  determined  by reference to the circumstances of each case and the  balance of convenience having regard to those circumstances, is  one of the matters for consideration. [2l0D]     In the instant case, even though initially the agreement to  transfer  might have been on the basis  that  the  suits would  be  settled but the  agreement to  transfer  was  not                                                    PG NO 206 unequivocal.  The possibility of settlement might have  been the  motivation.  But the High Court has,  undoubtedly,  for the  purpose  of justice, rightly power to  dispose  of  the suits.  Having once transferred the suits, it would be  just and  fair and would also serve the purpose of  justice  that the  suits  should continue to be disposed of  by  the  High Court. [210C-D]     Though the suits are at a preliminary stage, but for the purpose   of   justice,   the   Court   must   oversee   the administration  of  justice by different Courts  and  orders passed High Court as well as City Civil Courts. [210E]     Therefore,  the  purpose of justice would be  served  by directing  expeditious  disposal of the suits  by  the  High Court. [210F]

JUDGMENT:     CIVIL APPELLATE JURISDICTION:  Civil Appeal No. 2597  of 1988.     From  the  Judgment  and Order dated  17.3.1988  of  the Calcutta High Court in Matter No. 2462 of 1987.     Soli  J.  Sorabji,  R. Mahapatra, B.P.  Singh  and  L.P. Agarwala for the Appellant.

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   S.K.  Kapoor, S. Dube, Chatterji and Mrs. Indra  Sawhney for the Respondent.     The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI,  J. Special  leave  granted.   The appeal is disposed of by the judgment herein.     On  or  about  7th  August,  1963  Jayshree  Textiles  & Industries  Ltd.  (hereinafter called ’the Jayshree  ’)  was inducted  as a tenant in respect of a godown in Calcutta  on groundfloor  at a monthly rent of Rs. 151 per month  payable according  to the English calendar month w.e. f.  1.8.  1963 exclusive  of  electric charges. Such induction was  by  the predecessor in title of the present appellant. The said rent of Rs.151 p.m. was later enhanced from time to time and  the last rent was Rs.225 p.m.     On or about 21st July, 1975, the High Court at Calcutta, in  Company  Petition  No.  161/76  connected  with  company application  No. 70/76 filed by the Jayshree,  approved  the                                                    PG NO 207 scheme  of amalgamation  whereby the Jayshree merged in  the respondent Company. It is alleged that on or about 4th July, 1985, the appellant for the first time came to know that the said  godown was in occupation of Indian  Rayon  Corporation Ltd  and,  hence, a notice to quit was issued. On  or  about 11th July, 1985, the respondent by its letter intimated  the appellant. that Jayshree was amalgamated with the respondent in  accordance with the scheme sanctioned by the High  Court at Calcutta on 21st July, 1976.     On 29th August, 1985, a notice under Section 106 of  the Transfer  of  Property Act, read with Section l3(d)  of  the W.B.  Premises  Tenancy Act, 1956 (hereinafter  called  ’the Act’),  to quit, vacate and hand-over vacant  possession  on the last date of the following month,was issued to Jayshree. Thereafter, on lst December, 1985 the appellant filed a suit for eviction in the City Civil Court at Calcutta against the Jayshree and the respondent herein. On 25th March, 1986, the respondent  filed a Title Suit No. 545/86 under Order  39(1) and  (2) of the Civil Procedure Code praying  for  temporary injunction  restraining  the  appellant  from  disconnecting electricity in, the said premises.     It is alleged and was also alleged before the High Court that  the  defendant  No. 2 in the suit in  the  City  Civil Court,  took  15  adjournments  to  file  written  statement between March 1986 to May 1987. On about 6th July, 1987, the appellant  filed  an  application under  Clause  13  of  the Letters  Patent in the High Court at Calcutta,  praying  for transfer of the two suits on the ground that the  respondent had   adopted  dilatory  tactics  and  had   taken   several adjournments   and.  furthers  that  the  original   records relating  to amalgamation are available in the  High  Court. Rule  nisi  was issued by the High Court. On  10th  October, 1987 the High Court passed the following order:     The  Court: By consent of the parties, this  application for  transfer  of the suit under Clause 13  of  the  Letters Patent is treated as on days’ list and is disposed of by the following order:     By  consent  of the parties the title suit  being  Title Suit  No. 345 of 1986 between Indian Rayon Corporation  Ltd. and  Abhay Singh Surana pending before the  learned  Judge’s bench  in the City Civil Court and the ejectment suit  being Ejectment  Suit No. 1088 of 1985 between Abhay Singh  Surana and Jayshree Textiles & Industries Ltd. and another  pending in the  City Civil Court are removed and transferred to this                                                    PG NO 208 Court  and to be entertained and tried by this Court in  its

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extraordinary  original civil jurisdiction, the  records  be transferred  to  this  Court by  16th  September  1987.  The Registrar,  Original  Side, shall communicate order  to  the Registrar,  City Civil Court. If necessary, at the  cost  of the petitioner a special messenger is to be deputed for  the purpose of transfer of the records from the City Civil Court to  this  Court.  Let  the  two  suits  appear  in  the  for settlement on 17th September, 1987. "     It  appears that the suits appeared before  the  learned Judge  upon  mentioning  on  15th  December,  1987.  It  was represented  that  the suits were transferred  to  the  High Court  only  on the understanding that the  suits  would  be settled.  It was further represented that the effort  settle the suits had failed and, hence, the learned Single judge of the High Court fixed a date for hearing of the two suits.     On   17th   February,  1988, the  respondent   filed  an application  before the learned Trial Judge in Calcutta  for recalling  the order of transfer dated 10.10.1987.  On  17th March, 1987, the court passed the following order:     "The Court: It appears that on 10th September, 1987,  an order  was  passed directing transfer of the  suit  to  this Court  so that the parties could settle the matter  in  this Court.  It has been stated by Mr. Ranjan Dev, Advocate, that there is no possibility of settlement and the suit should be heard.  In that view of the matter, let the suit be heard by the appropriate Court.  The order dated 10th September, 1987 is hereby recalled.  Let there also be an order in terms  of prayer  [b]  of the petition.  Since the suit is  being  re- trans-ferred to the City Civil Court, this Court cannot pass any  order  as  to the prayers made  for  deposit  of  rent. Liberty  is  given  to the parties to  make  an  appropriate application   before  the  appropriate  Court  for  such   a direction."     Aggrieved  thereby, the petitioner had filed  a  special leave  petition  and  leave was  granted  herein.   That  is how,this appeal is here.     In  order  to appreciate the contentions urged  in  this case, it is imperative to refer to Clause  13 of the Letters Patent of 1865 of the High Court, which reads as follows:     "And  we do further ordain, that the said High Court  of Judicature  at  Fort William in Bengal shall have  power  to                                                    PG NO 209 remove,  and  to  tr and determine, as  a  Court  of  extra- ordinary original jurisdiction of any court, whether  within or  without  the Bengal Division of the Presidency  of  Fort William. subject to its superintendence. when the said  High Court  shall think proper to do so, either on the  agreement of  thethe  parties  to that effect, or  for,r  purposes  of justice.  the  reasons for so doing being  recorded  on  the proceeding of the said High Court. "     The  aforesaid  clause has been  the  subJect-matter  of various adjudications and interpretations by the High Court. It  enables  the High Court to exercise  the  extraordinary’ original    civil   jurisdiction.    The   Letters    Patent contemplates  two  contingencies  for  the  High  Court   to exercise extraordinary jurisdiction. namely. on agreement of the  parties to that effect. the suits be  transferred  and, secondly, for the purpose of justice. It further  stipulates that  the  reasons  for  so doing  to  be  recorded  on  the proceedings in the High Court. In this case. apparently  the suits  were transferred by agreement of the  parties.  There is.  however,  great  deal of difference  as  to  what  that agreement  was. On behalf of the appellant, it is  contended that  there  was simply an agreement to have the  two  suits transferred   to  the High Court for quick  and  expeditious

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disposal.   It  was further, asserted that in view   of  the long  delay  in  filling the  written  statements,  it  was, therefore, advisable to have the suits disposed by the  High Court.     On  the other hand, it is seriously contended  that  the agreement  was that the suits would be settled in  the  High Court.   It appears that some such representations had  been made  to the learned Judge that the suits would be  settled. This, however. the appellant disputes.  The suits have  been transferred for settlement.  As the agreement to settle  the suits  has not fructified, the respondent does not want  the suits  to be tried in the High Court.  The appellant  states that  there  was no such agreement that the suits  would  be settled.   There  was, undoubtedly, a  possibility  for  the suits being settled and the counsel for the appellant stated that  the  suits could more easily be settled  in  the  High Court.   On  the  basis that there was  some  such  kind  of agreement and it is desirable that the suits should be tried by an appropriate Court having jurisdiction, the High  Court has remitted the suits back to the City Civil Court.   There is  no  doubt that the City Civil Court is  the  appropriate Court  and  that  there  existed  the  agreement  which,  as recorded  in the order of the Court, does not indicate  that it was on the basis that the suits would be settled.   There                                                    PG NO 210 are factors indicating that the  purpose of justice would be met  if the suits are tried in the High Court.  Undoubtedly, the  written statement has been long delayed in the suit  in 1985 and the same has not yet been filed.     The disposal ot the suits by the High Court, would serve the  purpose of justice. It would shorten litigation in  the sense  that there would be lesser number of appeals  to  the higher  Court and the possibility of settlement is there  in the High Court more than anywhere else. Suits are likely  to be  more expeditiously disposed of under the supervision  of the  High  Court Judge than before the  learned  City  Civil Court  or the Court subordinate to High Court.  Hence,  even though  initially the agreement to transfer might have  been on  the  basis  that the suits should  be  settled  but  the agreement to transfer was note unequivocal. The  possibility of  settlement might have been the motivation. But the  High Court  has, undoubtedly, for the purpose of justice  rightly power to dispose of the suits and in the facts of this case, in our opinion, having once transferred the suits, it  would be just and fair and would also serve the purpose of justice that the suits should continue to be disposed of by the High Court.  The  purpose  of  justice  must  be  determined   by reference to the circumstances of each case and the  balance of convenience having regard to those circumstances, is  one of the matters for consideration.     Counsel  for the respondent contended under Art. 136  of the  Constitution  that it is not an order which  should  be interfered with. We are unab1e to agree. It is true that the suits  are at a preliminary stage but it is also  true  that for  the  purpose of justice the Court,  if  possible,  must oversee  the  administration  of justice  by  the  different Courts  and the orders passed therein by the High Courts  as well as the City Civil Courts.     In that view of the matter we think that the purpose  of justice would be served by directing expeditious disposal of these suits by the High Court. In the premises the order  of the High Court is set aside and let these two suits be heard by the High Court one after the other. The written statement as  mentioned hereinbefore, has not been filed. The  written statement,  if  any, by the respondent may be  filed  within

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four weeks from today and further directions for expeditious disposal may be obtained from the learned Judge taking these suits.  Let these suits appear before the appropriate  Bench in the High Court of Calcutta.     The  appeal is disposed of as aforesaid. No order as  to costs.     N,P.V.                                          Appeal disposed of.                                                    PG NO 211