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NITHAYAPRATAB (NIL)     14 January 2016

Suit vs petition

CIVIL SUIT filed in High court in Nov.98 for recovery of lease rental dues and connected charges against the Lessee and guarantor.  The pecuniary jurisdiction of High Court changed.  On that basis the Civil Suit was transferred to subordinate court in Feb. 2011 with different OS No.  The proceedings in the subordinate court started.  Plaintiff filed APPLICATION in June 2011 for transfer of Civil Suit back to High Court.  Application is still pending in Master court.  From Feb 2011 serveral hearings taken place in the subordinate court.  Plaintiff continued to be absent for the hearings.  Meantime the Lessee is dismissed from the suit.  The suit in subordinate is now Plaintiff vs. Defendant 2.  Now the subordinate advising the D2 to get the transfer order from High court before proceeding further.  As per CPC Sec 24 the High court has powers to transfer a suit to any subordinate court which is comptent to try.  In another case High court itself has observed in a suit that application is not a suit.  The guarantor has given the original property sale deed belonging to his father as security.  Even before the guarantor given this sale deed as security, his father had registered will in favour his grand sons i.e. sons of D2.  Now, the question is whether the stand taken by the subordinate court in asking for transfer order of application is valid.  Shall be much obliged if proper guidance is given.



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 2 Replies

adv.raghavan (Advocate,9444674980)     17 January 2016

what is the stage in masters court? you can escalate the same to high court, let high court take a call. Subordinate court is right in asking for confirmation from high court  as the matter is pending before high court. 

NITHAYAPRATAB (NIL)     18 January 2016

Thanks.The application was last in the Master court of High court came up Dec.2012. No further hearing. It looks, the Plaintiff (Applicant) has not shown any interest in this matter.  I have seen certain judgments which say that application cannot be construed as suit.  As such it does not attract Section 10 or Sec 11 of CPC.  Subsequent to the transfer of the suit to subordinate court, there was no further communication from High court to stay the proceedings based on application filed.  I, therefore, feel the subordinate court can proceed with trial and disposal of the suit.  You know, it is very difficult to get the application moved in the high court.  Best wishes.


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