1. Being aggrieved by order dated 3-9-2010 passed by District Judge, Indore, in MJC Case No. 133/2010 whereby an application filed by the petitioner under section 24 of Civil Procedure Code for transfer of the Civil Suit No. 85-A/08 pending before XII Civil Judge, Class 2, Indore to the Court of VII Additional District Judge, Indore where C.S. No. 12-A/2010 is pending, was dismissed, present petition has been filed.

2. Short facts of the case are that respondent Nos. 11 and 12 filed a suit against the petitioner on 4-2-2008 alleging that the petitioner is a tenant in the suit accommodation. It was alleged that decree of eviction be passed under section 12(1)(a), (c) in the Accommodation Control Act (hereafter shall be referred to as "the Act"). The suit was registered as C.S. No. 85-A/2008 in the Court of XII Civil Judge, Class 2, Indore. Thereafter, a suit was filed by the petitioner on 15-2-2010 for specific performance of the contract wherein it was alleged applicant entered into an agreement to purchase the suit property for a consideration of Rs. 1,32,000/-, therefore, a decree for specific performance be passed. Civil Suit filed by the petitioner was registered as C.S. No. 12-A/2010 in the Court of VII Additional District Judge, Indore. An application was filed by the petitioner under section 24, Civil Procedure Code before the District Judge, Indore wherein it was alleged that since the parties in both the suits are roughly one and the same and the issue involved is also one and the same, similarly suit property is also one and the same, therefore, in the interest of justice Suit No. 85- A/2008 pending in the Court of XII Civil Judge, Class 2, lndore be transferred to the Court of VII Additional District Judge, Indore where C.S. No. 12-A/2010 is pending. The application was contested by the respondents on various grounds. It was prayed that application be dismissed. After hearing the parties learned Trial Court dismissed the application against which present petition has been filed.

3. Preliminary objection has been raised by Mr. A. K. Sethi, Senior Advocate appearing for the respondent Nos. 11 and 12 regarding maintainability of the petition. Learned Counsel submits that the petition itself is not maintainable because it will not terminate the suit finally which is pending before the Court below. Learned Counsel further submits that even if the petitioner is aggrieved by the dismissal of the application filed by the petitioner under section 24, Civil Procedure Code, before the District Judge, then too the remedy available to the petitioner is not to challenge the order but to file separate petition before this Court under section 24, Civil Procedure Code as under section 24, Civil Procedure Code jurisdiction is concurrent to both the Courts.

4. Learned Counsel for the petitioner submits that the application for transfer can be filed by any of the parties under section 24, Civil Procedure Code before the High Court or District Court. Thus the jurisdiction of both the Courts are concurrent but if party to the litigation chooses to challenge the order passed by the District Court before the High Court, then petition cannot be dismissed only on the ground that since remedy is available to the petitioner under section 24, Civil Procedure Code, therefore, the revision is not maintainable. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner be dismissed.

5. Learned Counsel for the petitioner submits that earlier the petitioner challenged the order passed by the District Judge by filing writ petition and the same was withdrawn. It is submitted that the objection be overruled. So far as merits are concerned, learned Counsel submits that learned Court below committed error in dismissing the application. It is submitted that in the facts and circumstances of the case petition filed by the petitioner ought to have been allowed by the Court below as it saves time, energy, and money. It is submitted that in both the cases, suit-property is one and the same. Learned Counsel placed reliance on a decision in the case of Premlala Nahata and another v. Chandi Prasad Sikaria, reported in (2007) 2 SCC 51, wherein Hon'ble Apex Court has observed that :-

"The Court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the Court combined or united and treated as one cause or matter. The main purpose of consolidation is, therefore, to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the Court and it appears to the Court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. If there is power in the Court to consolidate different suits on the basis that it should be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognized in the Court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit."

6. Further reliance is placed on a decision of this Court in the case of Nagappa v. Dodda Bharamappa and another, reported in AIR 2000 SC 3567, wherein Hon'ble Apex Court has observed that :-

"As suit of title and injunction is pending in the Court of Civil Judge, Senior Division, Devangare and the rent suit filed by the appellant against his alleged tenant on the basis of rent note dated 4-11-1997 is pending in the Court of Civil Judge (Junior Division) and JMFC Harihar, while allowing this appeal and setting aside the impugned order passed by the High Court and also by the learned Trial Court on I.A. No. 3, interest of justice will be served if the Civil Suit No. O.S. No. 23 of 1999, pending in the Court of Civil Judge (Junior Division) and JMFC Harihar be transferred to the Court of Civil Judge, Senior Division Davangare and be analogously tried along with respondents Suit No. OS 8/1998."

7. Learned Counsel submits that in the facts and circumstances of the case, petition filed by the petitioner be allowed and the order passed by the District Judge, be set aside and C.S. No. 85/2008 pending in the Court of XII Civil Judge, Indore be transferred to the Court of VI Additional District Judge, Indore where C.S. No. 12-A/2010 is pending.

8. Learned Counsel for the respondent Nos. 11 and 12 submits that none of the judgment cited by the Counsel for the petitioner is applicable in the present case. It is submitted that suit filed by the respondent Nos. 11 and 12 is the suit for eviction based on relationship of landlord and tenant while the suit filed by the petitioner is a suit for specific performance. It is submitted that if eviction suit is filed by the respondent Nos. 11 and 12 is transferred to the Court of VII Additional District Judge, Indore, where C.S. No. 12-A/2010 is pending, then both the parties may be deprived from one right of appeal. It is submitted that cases cited by the Counsel for the petitioner are quite distinguishable. Learned Counsel further submits that if suit filed by the respondent Nos. 11 and 12 is decreed then the suit filed by the petitioner shall not become infructuous. Similarly suit filed by the petitioner is decreed then too suit filed by the respondent Nos. 11 and 12 will not be dismissed automatically.

9. Learned Counsel further submits that it is true that in both the cases suit property is one and the same and also parties are also one and the same. It is submitted that keeping in view the relief claimed in both the cases and the cause of action, learned Court below committed no error in dismissing the application filed by the petitioner.

10. So far as maintainability of revision under section 115, Civil Procedure Code is concerned, from the facts available on record, it is evident that before filing petition, an attempt was made by way of filing of writ petition which was numbered as W. P. No. 13669/2010 and was dismissed as withdrawn by Hon'ble Division Bench vide order dated 1-12-2010. Apart from this, for exercising jurisdiction under section 111, Civil Procedure Code the only hurdle for not entertaining the petition is the proviso which puts rider on this Court according to which revision is not maintainable where the order if it had been made, in favour of the party appealing for revision would have finally disposed of the suit or other proceedings. Since the order passed by the District Judge in a petition under section 24, Civil Procedure Code is under challenge therefore, petition cannot be dismiss

ed in view of Proviso to section 115, Civil Procedure Code otherwise also this petition cannot be dismissed on the ground that this Court is having concurrent jurisdiction under section 24, Civil Procedure Code to entertain transfer petition as it is the choice of the petitioner either to challenge the order passed under section 24, Civil Procedure Code by the learned Court below or file a fresh petition for transfer under section 24, Civil Procedure Code before this Court. 11. Keeping in view the facts of the case and the course of action and the fact that suit filed by the petitioner for specific performance is pending in a Court which is a Court of appeal against the judgment which shall be passed in the Civil Suit filed by respondent Nos. 11 and 12 this Court is of the view that no illegality has been committed by the learned Court below in dismissing the application. 12. In view of this petition filed by the petitioner has no merits and the same stands dismissed. Appeal allowed.