Case Note & Summary
The petitioners filed a writ petition challenging the dismissal of their application for transfer of Regular Civil Suit No.663 of 2000 from the Court of Civil Judge, Junior Division, Kalyan to the Court of Civil Judge, Senior Division, Thane. The suit was filed by the respondents seeking a declaration that a decree passed in Special Civil Suit No.5 of 1996 by the Senior Division Court was null and void and not binding on them. The petitioners argued that the Junior Division Court was not competent to declare a decree of a Senior Division Court null and void. The trial court dismissed the transfer application, and the District Judge dismissed the appeal, holding that under Section 15 of the Code of Civil Procedure, 1908, every suit shall be instituted in the court of the lowest grade competent to try it. The District Judge observed that the Junior Division Court was not examining the correctness of the previous decree but rather the question of whether the defendants made false representations regarding ownership of land. The High Court upheld this view, finding no infirmity in the reasoning of the courts below, and dismissed the writ petition.
Headnote
A) Civil Procedure - Transfer of Suit - Section 15 CPC - Competence of Court - Suit seeking declaration that a decree passed by Civil Judge Senior Division is null and void - Held that the Junior Division Court is competent to try the suit as it is not examining the correctness of the previous decree but the question of false representation - Section 15 CPC mandates suit to be instituted in court of lowest grade competent to try it (Paras 2-3).
Issue of Consideration
Whether a suit seeking declaration that a decree passed by a Senior Division Court is null and void can be tried by a Junior Division Court in view of Section 15 of CPC.
Final Decision
Writ Petition dismissed. The High Court upheld the view of the courts below that the Court of Civil Judge, Junior Division is competent to entertain, try and decide the suit in view of Section 15 of CPC.
Law Points
- Section 15 of CPC
- Competence of court
- Transfer of suit
- Lowest grade court
Case Details
2013 LawText (BOM) (07) 39
Writ Petition No.1746 of 2004
Mr. N.R. Bubna for Petitioners, Mr. N.V. Khaladkar h.f Mr. P.S. Dani for Respondent no.1
Smt Rajivas Vasu Shetty, Mrs Vanita Shekhar Shetty, Miss Pramila Vasu Shetty, Sudhir Vasu Shetty
Insanali Nasibdar, Mallika Vasu Shetty, Prabhakar Vasu Shetty
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Nature of Litigation
Writ petition challenging dismissal of application for transfer of a civil suit from Junior Division to Senior Division Court.
Remedy Sought
Petitioners sought transfer of Regular Civil Suit No.663 of 2000 from the Court of Civil Judge, Junior Division, Kalyan to the Court of Civil Judge, Senior Division, Thane.
Filing Reason
Petitioners contended that the Junior Division Court was not competent to declare a decree passed by the Senior Division Court null and void.
Previous Decisions
The trial court dismissed the transfer application; the District Judge dismissed the appeal on 22.1.2004.
Issues
Whether a suit seeking declaration that a decree passed by a Senior Division Court is null and void can be tried by a Junior Division Court in view of Section 15 of CPC.
Submissions/Arguments
Petitioners argued that the Junior Division Court was not competent to declare a decree of the Senior Division Court null and void.
Respondents argued that the Junior Division Court was competent as per Section 15 CPC, as it was not examining the correctness of the decree but the question of false representation.
Ratio Decidendi
Under Section 15 of CPC, every suit shall be instituted in the court of the lowest grade competent to try it. The Junior Division Court is competent to try a suit seeking declaration that a decree of a Senior Division Court is null and void, as it is not examining the correctness of the decree but the underlying question of false representation.
Judgment Excerpts
Section 15 of CPC states that every Suit shall be instituted in the Court of lowest grade competent to try it.
The Courts below have held that in view of Section 15 of CPC, the Court of Civil Judge, Junior Division is competent to entertain, try and decide the Suit. I do not find any infirmity in the said view taken by the Courts below.
Procedural History
Special Civil Suit No.5 of 1996 was decreed by the Civil Judge, Senior Division, Thane. Subsequently, Regular Civil Suit No.663 of 2000 was filed by respondents in the Court of Civil Judge, Junior Division, Kalyan seeking declaration that the decree in Special Suit No.5 of 1996 is null and void. Petitioners filed an application for transfer of the suit to the Senior Division Court, which was dismissed by the trial court. Misc. Civil Appeal No.8 of 2004 against that dismissal was dismissed by the District Judge on 22.1.2004. The petitioners then filed the present writ petition.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 15
- Bombay Court Fees Act, 1959: Section 6(1)
