Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
CRP No. 26 of 2023 Date of Decision: 30.09.2024
Revd. Himanshu Christian
Presbyter-in-Charge, Shillong Pastorate,
R/o All Saint s Cathedral, Shillong
’
Diocese of East India, Church of North
India, Shillong, Meghalaya :::Petitioner
-Vs-
1.Shillong Pastorate Committee, All Saint s
’
Cathedral, Shillong, Diocese of East India,
Church of North India
All Saints Hall, IGP, Shillong, Meghalaya
’
Represented by its Secretary
2.Shri. Archie Kharpuri
Secretary, Shillong Pastorate Committee
All Saint s Cathedral, Shillong
’
Diocese of East India, Church of North
India, Shillong, Meghalaya :::Respondents
3.The Diocese of North East India, Church
of North India, Bishop s Kuti, MG Road,
’
Shillong, Meghalaya, represented by its
Secretary :::Pro Forma Respondent
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Coram:
Hon ble Mr. Justice H. S. Thangkhiew, Chief Justice (Acting)
’
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Deb, Adv.
For the Respondent(s) : Mr. S. Sen, Adv. (For R 1)
Mr. D.G. Pyngrope, Adv. (For R 2)
Mr. I. Kharmujai, Adv. vice
Mr. S. Jindal, Adv. (For R 3).
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. This Revision application has been filed under Section 24 CPC, read
with Rule 1B of the Administration of Justice and Police in the United
Khasi and Jaintia Hills Rules, 1937, praying for transfer of T.S. No. 27(T)
of 2023, along with all connected Misc. Applications pending before the
Court of the Assistant to Deputy Commissioner (J), Shillong, to the Court of
the Munsiff at Shillong.
2. The brief facts are that the petitioner by way of the aforementioned
Title Suit had sought a declaration that he as plaintiff is the duly appointed
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Presbyter-in-charge of the Shillong Pastorate, as well as the Ex-officio
President of the Shillong Pastorate Committee, and to allow him to function
as such, and further to declare the impugned proceedings of Special General
Meetings held on 02.07.2022 and 17.06.2023, and Annual General Meeting
dated 23.09.2023, as well as, impugned letters dated 23.06.2023,
24.07.2023 and 29.09.2023, issued by the respondent No. 2/Defendant, as
null and void. The dispute in question for which the above noted reliefs
have been prayed are with regard to the decisions taken in the said Special
General Meetings, wherein decisions have been taken to replace the
petitioner and further actions proposed thereon.
3. The Trial Court then by order dated 24.11.2023, passed in Misc. Case
No. 117(T) of 2023, granted ex-parte ad-interim injunction in favour of the
petitioner till the next date of hearing, which was thereafter extended on the
appearance of the respondent/defendant till 07.12.2023. The respondents
had then filed 2 Misc. cases, being Misc. Case No. 127(T) of 2023 and
Misc. Case No. 129(T) of 2023, challenging the maintainability of the suit,
on the ground of jurisdiction, as the cause of action had arisen in the
normal areas of Shillong, wherein the Administration of Justice Rules,
‘ ’
1937 would have no application. Other Misc. Applications for vacation of
the order dated 24.11.2023, were also filed and were numbered as Misc.
Cases No. 126(T) and 128(T) of 2023. In the intervening period however,
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before the applications could be taken up, the petitioner on the same date,
when the matter was fixed i.e. on 07.12.2023, approached this Court by way
of the instant Revision Application, wherein this Court by order on the same
date i.e. on 07.12.2023, directed that status quo be maintained as far as the
proceedings of the case before the Trial Court were concerned.
4. It has been submitted by Mr. S. Deb, learned counsel for the
petitioner that as it was apparent, that the suit had been instituted before a
Court which lacked jurisdiction, the instant Revision Application had been
filed accordingly for transfer to a Court of competent jurisdiction i.e. the
Court of learned Munsiff, Shillong. He further submits that this Court is
vested with ample discretionary power to transfer the Title Suit, and if the
suit is dismissed or the plaint returned by the Trial Court, at this stage, after
an injunction has been passed in favour of the petitioner, severe prejudice
would be caused. He therefore prays that the Title Suit along with all
connected Misc. Applications, now pending before the Court of the
Assistant to Deputy Commissioner at Shillong, be transferred to the Court
of Munsiff at Shillong, from the stage as it pertained on 07.12.2023.
5. Mr. S. Sen, learned counsel for the respondent No. 1, has submitted
that admittedly power to transfer a case is a matter of discretion to be
exercised by this Court, but however, in the instant case the
respondent/defendant has already raised the question of maintainability on
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the basis of which the Misc. Cases had been registered. The learned counsel
contends that the Revision petitioner having participated in the same, and
then filing the instant Revision Application for transfer, amounts to abusing
the process of the Court. He further submits that an application under Order
39 Rule 4 of the CPC, for discharge, recall of the ex-parte injunction order
is also pending before the Trial Court, and as such, the prayer as made out
in the instant application for transfer may not be entertained.
6. The learned counsel then submits that during the pendency of the
instant Revision Application before this Court, the petitioner had filed T.S.
No. 1(H) of 2024, before the Court of Munsiff at Shillong, against the same
respondents with similar prayers as sought in T.S. No. 27(T) of 2023, along
with Misc. Applications. This suit he submits was then withdrawn by the
petitioner which was allowed by the Court of the Munsiff by order dated
16.04.2024. Thereafter, he further submits that a fresh suit was instituted by
the petitioner which was registered as T.S. No. 2(H) of 2024, against the
respondents No. 1 and 2, and two other parties with a similar prayer that
was made in the earlier T.S. No. 1(H) of 2024. This suit too he submits, was
again withdrawn by the petitioner, which was allowed by order dated
30.04.2024. The learned counsel to substantiate the submissions has
produced certified copies of the plaints in both the suits along with the
orders that have been passed thereon, and has taken this Court to the
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relevant orders, and prayers made therein. It has also been submitted that
the petitioner has been instituting suits before various Courts, with similar
reliefs prayed which amount to an abuse of the process of Court, and the
question of maintainability on the ground of jurisdiction having already
been raised by the respondents, which are pending hearing before the Trial
Court, the petitioner ought not to have filed the instant Revision
Application. In support of his submissions, the learned counsel has placed
reliance in the case of DAV Boys Senior Secondary School & Ors. vs. DAV
College Managing Committee reported in (2010) 8 SCC 401 and also in the
case of Hari Ram vs. Anil Kumar reported in 1985 SCC OnLine P&H 578,
to impress on the point that Courts exercise this jurisdiction in interest of
justice and to adherence of fair trial.
7. Having heard the learned counsel for the parties, this Court finds it
cannot ignore the attendant facts that are germane to the issue, such as the
timing that this matter had been brought before this Court seeking transfer,
and the events that had preceded the institution of the instant Civil Revision
Application. In matters of transfer, as provided in Section 24 of the CPC,
powers have been vested on the High Court or District Court to transfer any
suit, appeal or other proceeding, but this power has to be exercised taking
into account, the circumstances surrounding the said prayer for transfer. In
this context, it would be apposite to refer to the tests to be applied in respect
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of transfer of suits, as laid down in the case of Kulwinder Kaur vs. Kandi
Friends Education Trust, where in Para-23 thereof, the Supreme Court has
observed as follows.
23. Reading Sections 24 and 25 of the Code together and keeping
“
in view various judicial pronouncements, certain broad propositions
as to what may constitute a ground for transfer have been laid down
by courts. They are balance of convenience or inconvenience to the
plaintiff or the defendant or witnesses; convenience or
inconvenience of a particular place of trial having regard to the
nature of evidence on the points involved in the suit; issues raised
by the parties; reasonable apprehension in the mind of the litigant
that he might not get justice in the court in which the suit is
pending; important questions of law involved or a considerable
section of public interested in the litigation; interest of justice
‘ ’
demanding for transfer of suit, appeal or other proceeding, etc.
Above are some of the instances which are germane in considering
the question of transfer of a suit, appeal or other proceeding. They
are, however, illustrative in nature and by no means be treated as
exhaustive. If on the above or other relevant considerations, the
court feels that the plaintiff or the defendant is not likely to have a
fair trial in the court from which he seeks to transfer a case, it is
‘ ’
not only the power, but the duty of the court to make such order.
”
8. Further, in the case of DAV Boys Senior Secondary School(supra),
as cited by the counsel for the petitioner, at Para 12 thereof, it has been
–
held as follows.
12. Section 25 of the Code itself makes it clear that if any
“
application is made for transfer, after notice to the parties, if
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the Court is satisfied that an order of transfer is expedient for
the ends of justice necessary direction may be issued for
transfer of any suit, appeal or other proceedings from a High
Court or other civil court in one State to another High Court
or other civil court in any other State. In order to maintain
fair trial, this Court can exercise this power and transfer the
proceedings to an appropriate court. The mere convenience
of the parties may not be enough for the exercise of power
but it must also be shown that trial in the chosen forum will
result in denial of justice. Further illustrations are, balance
of convenience or inconvenience to the plaintiff or the
defendant or witnesses and reasonable apprehension in the
mind of the litigant that he might not get justice in the court
in which suit is pending. The abovementioned instances are
only illustrative in nature. In the interest of justice and to
adherence of fair trial, this Court exercises its discretion and
orders transfer in a suit or appeal or other proceedings.
”
9. Keeping in mind the judicial pronouncements as extracted above, and
in consideration of fair trial, the interest of justice, apart from other
considerations which may be relevant, an examination of the instant case at
hand, would show that the transfer has been sought at the stage, when it was
apparent to the petitioner that no further relief would be forthcoming. The
very fact that this Revision Application was presented before this Court,
when applications had been filed by the respondents, and were pending
consideration on the question of jurisdiction, before the Trial Court, speaks
volumes in itself. The case at hand, is not one of where the petitioner is
apprehensive of not getting a fair trial, or that severe prejudice would be
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caused, if the transfer is denied, but is clearly one of a litigant seeking to
protract the proceedings, and attempt to sustain, whatever interim relief that
had initially been obtained to his advantage. This aspect is clearly
demonstrated by the fact that after having participated in the proceedings,
wherein the question of jurisdiction was before the Trial Court, the
petitioner instead of continuing therein, has taken a detour by way of the
instant Revision Application to scuttle the same.
10. This Court while noticing the facts as placed that the petitioner had
during the pendency of this matter before this Court, also filed two Title
Suits on subsequent events that had unfolded, which however, emanated
from the same cause of action, the same however, is not adverted to,
inasmuch as, the examination by this Court is to only whether any sufficient
grounds have been made out to warrant the exercise of discretionary power
to order for transfer of the suit. As can be seen from the facts and
circumstances of the case and from the discussions made hereinabove, in
the considered view of this Court, no case has been made out by the
petitioner for transfer of the suit, especially when the question of the
territorial jurisdiction of the Trial Court to entertain the suits is still pending
adjudication.
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11. Accordingly, for the reasons aforementioned, the instant Revision
Application is dismissed.
12. No order as to costs.
Chief Justice (Acting)
Meghalaya
30.09.2024
“D.Thabah-PS”
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