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(Section 25 CPC) ‘First Past The Post’ Principle Cannot Be Applied While deciding A Transfer Petition: SC
The single judge bench of supreme court comprising of Justice Anuruddha Bose observed that under CPC the principle of ‘First Past The Post’ cannot be applied while deciding a transfer petition and such petitions are to be decided on consideration of the ends of the justice.
The present petition is a transfer petition seeking the transfer of a suit for partition and ancillary reliefs instituted in delhi high court. The plea contended that the suit can be clubbed together with testamentary proceeding pending before the Bombay high court. The petitioner stated that the probate court has exclusive jurisdiction in matters pertaining to the legality of a will and for the reason, the plea would be expedient that the suit instituted in the delhi high court should be transferred to the probate court.
The respondent argues that the suit have been instituted before the testamentary petition, it must be first allowed to proceed and then it could be transferred if necessary. Thereafter the respondent contended that under section 270 of the Indian Succession Act, 1925, the Deli high court also has the jurisdiction to try the probate proceeding. The respondents further contesting that if the partition suits proceeds independently and plantiffs therein suceed, the there would be a possibility of inconsistent findings by two high courts, provided the petitioners succeed in the testamentary proceeding.
The bench observed that the testamentary proceeding would have direct bearing or impact on the pending suit for partition. After this the court directed that the suit filed in the Delhi high court to the Bombay high court. The bench also observed that petition for transfer under section 25 of CPC, however is decided on consideration of the ends of justice. The First Past The Post is not the principle that can be applied in proceedings of this nature.Thus, the transfer petition is allowed.
