Allahabad High Court
Babu Singh Now Represented By Smt. Madhu ... vs Raj Bahadur Singh And Ors. on 10 November, 2022
Author: Rajesh Bindal
Bench: Rajesh Bindal, Chief Justice, Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
HIGH COURT OF JUDICATURE AT ALLAHABAD
(LUCKNOW)
***
TRANSFER APPLICATION(CIVIL) No.-121 of 2021
Pronounced on : November 10, 2022
Babu Singh and others .....Applicants
Vs.
Raj Bahadur Singh and others ..Opposite Parties
With
TRANSFER APPLICATION (CIVIL) No.-123 of 2021
Babu Singh and others .....Applicants
Vs.
Raj Bahadur Singh and others ...Opposite Parties
With
TRANSFER APPLICATION (CIVIL) No.-124 of 2021
Shivji Virajman Mandir through Shivnath Singh ....Applicants
Vs.
Smt. Reena Singh and others ...Opposite Parties
Applicant through:- Mr. Ashish Tripathi, Advocate
Respondents through:- Mr. Jaideep Narayan Mathur, Senior Advocate (Amicus Curiae) with Mr. Sanjay Sarin, Additional Chief Standing Counsel and Ms. Aishwarya Mathur, Advocate
CORAM : HON'BLE RAJESH BINDAL, CHIEF JUSTICE
HON'BLE JASPREET SINGH, JUDGE
ORDER
RAJESH BINDAL, C.J.
1. On a reference made by the learned Single Judge vide order dated December 10, 2021 to a larger Bench and constitution thereof by Hon'ble the Chief Justice, on administrative side, for consideration of the following questions, the matter has been placed before us :
"(i) Whether the order passed by District judge under Section 24 CPC is revisable under Section 115 CPC as applicable in the State of U.P.?
(ii) Whether another application under Section 24 CPC by the same applicant based on the same cause would be maintainable before the High Court, without challenging an order of the District Judge which has also been passed under Section 24 CPC under Section 115 CPC or Article 227 of the Constitution of India, as the case may be?
(iii) Whether pronouncements of this Court in the case of Sunit Devi and Indian Oil Corporation (supra) lay down the law correctly on the subject matter in issue or it is the decision by a Co-ordinate Benches in the case of Jagdish Kumar and Amit Pachauri (supra) which understand and lay down the law correctly on the issues aforesaid?"
Transfer Application (Civil) No.-121 of 2021 :-
2. It is a case in which the applicants filed an application under Section 24 of the CPC1 in the Court of District Judge, Unnao seeking transfer of Regular Suit No. 182 of 1996 (Babu Singh and others vs. Raj Bahadur Singh) from the Court of Civil Judge, Junior Division, Safipur, District-Unnao to any other Court of Civil Judge, Junior Division, Unnao. The ground for seeking such transfer was that the husband of applicant no. 1/1, who is an Advocate, is pursuing their case and on each and every date he has to go to Tehsil Safipur, which is situated at a distance of more than 30 km from Unnao. Hence, it would be convenient for him to pursue the case, if the same is transferred to Unnao. When the application was rejected by the learned District Judge vide order dated September 20, 2021 on the ground that the property in question in the suit is situated in Safipur, District-Unnao, therefore, the case cannot transferred, being aggrieved, the applicants filed the present application under Section 24 CPC before this Court seeking the relief as sought for before the Court below.
Transfer Applications (Civil) No.-123 & 124 of 2021 :-
3. In these cases, transfer of Regular Suit No. 2791 of 1996 (Babu Singh and others vs. Raj Bahadur Singh) and Regular Suit No. 367 of 2018 (Shivji Virajman Mandir through Shivnath Singh vs. Reena Singh and others) was sought respectively from the Court of Civil Judge, Junior Division, Safipur, District-Unnao to any other Court of Civil Judge, Junior Division, Unnao has been sought, on the same ground as taken in seeking transfer of Regular Suit No. 182 of 1996, by filing applications under Section 24 CPC. These applications were rejected by the learned District Judge vide order dated September 20, 2021. However, setting aside of the order dated September 20, 2021 passed by the District Judge has not been sought in both these applications filed under Section 24 CPC before this Court.
4. One of the issues which arose before the learned Single Judge was that in the event the applicant had already approached the Court below under Section 24 CPC for transfer of suit and an order was passed therein rejecting the application, whether there was any remedy available against such an order under Section 115 CPC or under Article 227 of the Constitution of India. The other issue was as to whether the order passed by the District Judge under Section 24 CPC is to be challenged either by filing a revision under Section 115 CPC assuming the same to be maintainable or under Section 227 of the Constitution of India or the applicant could straightway file an independent application under Section 24 CPC before the High Court seeking such transfer without challenging the order of the District Judge.
5. Owing to contrary decisions and difference of opinion on the aforesaid issue, the learned Single Judge has referred the questions, as quoted in the first paragraph of this order, for consideration by a larger Bench.
6. The learned Counsel for the applicants would say in tune with the decisions in Jagdish Kumar v. The District Judge, Budaun2 and Paras Jain v. Izhar Ahmad and others3 that the order passed by the District Judge on a transfer application, rejecting it, is not a 'case decided' within the meaning of Section 115 CPC, since no rights of parties involved in the suit are decided, either finally or as an interlocutory measure. Hence, a revision under Section 115 CPC is not maintainable.
7. To this submission, the learned Amicus Curiae submitted that the expression 'case decided' employed in Section 115 CPC is not necessarily restricted in its application to rights that constitute the lis. The 'case decided' may well be something not directely related to the suit, such as proceedings for restoration under Order IX CPC. No doubt, such proceedings would have bearing of some kind on the event in the suit, but not in the terms of a decision on the lis involved, or a part thereof and as it involves adjudication thus revision would be a remedy.
8. Heard learned counsel for the parties and perused the paper book.
9. To appreciate the arguments raised by learned counsel for the parties with reference to interpretation of Sections 24 and 115 of CPC and Article 227 of the Constitution of India, we deem it appropriate to reproduce the same hereunder :
"24. General power of transfer and withdrawal-(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage-
(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.
(3) For the purposes of this section,-
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) "proceeding" includes a proceeding for the execution of a decree or order.
(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.
x x x x
115. Revision-(1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court where no appeal lies against the order and where the subordinate court has-
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity, (2) A revision application under sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.
(3) The superior court shall not, under this section, vary or reverse any order made except where,-
(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the superior court.
Explanation I-In this section,-
(i) the expression ''superior court' means-
(a) the district court, where the valuation of a case decided by a court subordinate to it does not exceed twenty five lakh rupees.
(b) the High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or other proceedings in a case decided by a court subordinate to the district court exceed five lakh rupees;
(ii) the expression ''order' includes an order deciding an issue in any original suit or other proceedings.
Explanation II.-The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement."
x x x x
227. Power of superintendence over all courts by the High Court.-(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provision, the High Court may --
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces."
10. The power to be exercised under Section 24 CPC is both administrative and judicial. The administrative power is exercised by the competent authority in routine for allocation of cases amongst different Courts subordinate to it or having concurrent jurisdiction with power of allocation of cases generally. No issue is raised thereof generally unless someone files an application seeking transfer of his case to some other court. This application again can be either on administrative side or judicial side. The issue which is pending for consideration before this Court is regarding the application filed by the litigant under Section 24 CPC on judicial side. If such an application is filed, the Court concerned is required to consider the same in terms of the parameters settled therefor. An application filed by a party to the litigation under Section 24 CPC can either be accepted or rejected.
PRINCIPLES OF TRANSFER OF CASES
11. The principles with respect to the transfer of case under Section 24 CPC have been dealt with by Hon'ble the Supreme Court in Kulwinder Kaur vs. Kandi Friends Education Trust and others4. Relevant paragraphs 13, 14 and 17 of aforesaid judgment are reproduced below :
"13. Having considered rival contentions of the parties and having gone through the proceedings of the case, we are of the view that the impugned order deserves to be set aside. So far as the power of transfer is concerned, Section 24 of the Code empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any Court subordinate to it to any other Court for trial and disposal. The said provision confers comprehensive power on the Court to transfer suits, appeals or other proceedings ''at any stage' either on an application by any party or suo motu.
14. Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. 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 plaintiff or 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 interest 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.
x x x x
17. ..............It is true that normally while making an order of transfer, the Court may not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must reflect application of mind by the court and the circumstances which weighed in taking the action.............."
SCOPE OF SECTION 115 CPC
12. The scope of Section 115 CPC was also considered by Hon'ble the Supreme Court in Prem Bakshi and others vs. Dharam Dev and others5 wherein it has been held as under :-
"6. The proviso to Sub-section (1) of Section 115 puts a restriction on the powers of the High Court inasmuch as the High Court shall not, under this section vary or reverse any order made or any order deciding a issue, in course of a suit or other proceedings except where (I) the order made would have finally dispose of the suit or other proceedings or, (ii) the said order would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Under Clause (a), the High Court would be justified in interfering with an order of a subordinate court if the said order finally disposes of the suit or other proceeding. By way of illustration we may say that if a trial court holds by an interlocutory order that it has no jurisdiction to proceed the case or that suit is barred by limitation, it would amount to finally deciding the case and such order would be revisable................"
13. In Sadhana Lodh vs. National Insurance Company Ltd. and others6, Hon'ble the Supreme Court has observed :-
"......................Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution......"
14. The Division Bench of this Court in Ram Dhani and others vs. Raja Ram and others7 has considered the scope of Section 115 CPC as amended in the State of Uttar Pradesh, by the Code of Civil Procedure (U.P. Amendment) Act, 2003 in detail and has held as under :
"4. A perusal, therefore, of the aforesaid amendment in Uttar Pradesh, would show that what was contained in Clause (b) of proviso to Section 115 (1) before its amendment has been reintroduced in Section 115 (3) (ii) after the amendment in the State of U.P. In the U.P. Amendment Act, 2003, the expression ''order' has been set out to include ''an order deciding an issue in any original suit or other proceedings.'
5. Section 2 (14) of Code of Civil Procedure, describes an ''order' to mean ''the formal expression of any decision of a Civil Court which is not a decree.' The expression ''decree' has been defined under Section 2 (2) to mean ''the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.
6. An order thus has to have the trappings of a formal expression of a decision of a Civil Court. In the Explanation contained in Section 115 of Code of Civil Procedure in the Central Act, both before and after the amendment, it is specifically set out that the expression ''any case which has been decided' includes ''any order made or any order deciding an issue, in the course of a suit or other proceeding.' The provision as contained in the U.P. Amendment is revision against an order in a case decided. The intent and object, therefore, of both the Central Act and as amended in the State of U.P. appear to be, that a revision will be maintainable in respect of an order in a case decided.
x x x x
12. Section 115(3) as applicable to the State of U.P., apart from providing that the Superior Court would not vary or reverse any order except where- (I) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or procedure, or (ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made, would also require that there must be an order and that order decides the part of the case or proceedings. These are further considerations which the Court must apply after it comes to the conclusion that it is a case decided. Thus, Section 115 (3) really would be of no assistance in deciding the issue of ''order' or ''case decided'."
15. Section 115 CPC, as applicable to the State of U.P., provides for remedy to any of the party to the litigation to challenge the order passed by the court below. If the subordinate court has acted in exercise of its jurisdiction illegally or with material irregularity, the superior court may revise such an order. The superior court may also vary or reverse any order in exercise of revisional powers, if the order is allowed to stand, it would occasion failure of justice or cause irreparable injury to the party against whom it is made. An order passed under Section 24 C.P.C. will also fall in that category.
16. So as to arrive at a conclusion to answer the questions referred by the learned Single Judge, we deem it appropriate to categorize the set of judgments expressing different opinions in the matter.
(A) JUDGMENTS HOLDING THAT A SECOND APPLICATION UNDER SECTION 24 CPC IS MAINTAINABLE
17. This Court in Jagdish Kumar's case (supra) observed as under :
"14. Thus, an order under Section 24 of the Code either allowing or refusing to transfer or withdraw a suit or proceeding is not a case decided within the meaning of Section 115 of the Code as such an order under Section 24 of the Code is not subject to revision under Section 115 of the Code.
15. Since the order is neither appellable nor revisable as is the position as observed earlier, the same can never be sacrosanct or without any remedy. Such remedy are available under different provision of law. If it is an order of District Court refusing to transfer or allowed the transfer, the party can approach for retransfer, if transferred either before the District Judge or before the High Court. If refused, the aggrieved party may approach the High Court. Similarly in case of transfers, the High Court may be approached for retransfer and in case of refusal, the party is free to approach the Supreme Court under Section 25 of the Code. Against an order passed by the learned District Judge, it is open to the party to invoke the Higher Court's power of superintendence over subordinate court conferred upon the former under Article 227 of the Constitution. Inasmuch as Article 227 of the Constitution is not frittered by any other law or statute or any qualification.
x x x x
21. Thus the out-come of the above discussion indicates that when an application for transfer before the District Court fails, the party applying may approach the concurrent jurisdiction of the High Court under the same provision but the party opposing though may apply for retransfer before the District Judge but cannot challenge the said order under Section 115 of the Code though, however, on the principle on which Article 227 of the Constitution can be exercised he may invoke the power of superintendence conferred upon the High Court by the Constitution under Article 227 of the Constitution thereof. But if the party approaches the concurrent jurisdiction of the High Court straightaway then the applicant and opposite party - both may approach the Supreme Court under Section 25 of the Code, if aggrieved by the order of the High Court. But once the High Court passes an order under Section 24 on an application of an unsuccessful applicant before the District Judge, the order of the District Judge stands overruled by implication on passing of the order by the High Court. As such in the facts and circumstances of the present case, the application under Section 24 of the Code before this Court is maintainable."
18. The Judgment of Jagdish Kumar's case (supra) was followed by the learned Single Judge of this Court in Ishtiyak Ahmad v. Smt. Meena and others8, wherein it was observed:
"5. The remedy under Article 227 of the Constitution of India is an extraordinarily remedy of discretionary nature and it cannot be ordinarily permitted to be invoked if the party has any alternative statutory remedy for getting the desired relief.
6. The jurisdiction under section 24, C.P.C. is concurrent jurisdiction conferred both upon the District Judge and the High Court. Therefore, if an application under section 24, C.P.C. has been rejected, the party aggrieved may move a fresh application before the High Court under section 24, C.P.C. itself as has also been laid down by the aforesaid decision."
19. The Judgment of Jagdish Kumar's case (supra) was also followed by another Single Judge in Amit Pachauri Vs. Smt. Ram Beti in Transfer Application (Civil) No. - 226 of 2016, decided on July 13, 2016, wherein it was observed:
" The aforesaid decision nowhere lays down that once a party has approached the District Judge under Section 24 CPC, it cannot file a fresh application before the High Court, rather it specifically lays down that the jurisdiction conferred under Section 24 CPC is concurrent and that a party filing an application under Section 24 CPC before the District Judge may approach the High Court under the same provision. In view of the aforesaid facts and circumstances, there is no bar in moving an application under Section 24 CPC before the High Court for transfer of a case by the same party after losing in getting it transferred by the District Judge."
20. Another learned Single Judge in Jaikaran Singh & others Vs. Balakram and others9 has held :
"10. Having heard the learned counsel for the parties, I am of the view that an Application under Article 227 of the Constitution of India did not lie against an order passed under Section 24 of the CPC by the District Court. The High Court can always independently look into the grounds of a Transfer Application afresh. The jurisdiction conferred on both-the High court and the District was concurrent and was independently available to both the Courts.
11. However, the parties should approach the District Court first and thereafter the High Court as judicial propriety demands that judicial hierarchy be maintained. It was, therefore, always in the interest of justice that the powers of the District Court be invoked initially and, thereafter, those of the High Court.........."
21. A Division Bench of Calcutta High Court in Gorachand Das vs. Dipali Das10 decided on April 9, 1976 has observed as follows :
"9. In the last place the contention of Mr. Mukherjee on behalf of the opposite party has been that the present application is not maintainable on the ground that no revision lies against the order passed by a District Judge refusing to transfer a case under section 24, and further that the petitioner once having made an application under section 24 before the District judge and that application having failed he is not entitled to move a fresh application under section 24 before the High Court. We are unable to accept this contention of Mr. Mukherje. The language used in section 24 is :
The High Court or the District Court may, at any stage-
Transfer any suit....."
On a plain reading of the section, therefore, it cannot be said that moving an application before the District Court will preclude the petitioner from moving a fresh application before the High Court. In the case of Hari Nath Biswas v. Debendra Nath Biswas 11 C.L.J. 218 also reported in 5 I.C. 771, which is a Bench decision of this Court, it has been held that if the District Judge refuses to transfer a case under section 24 the petitioner may make a fresh application for transfer to the High Court. The same view was also taken in Sheo Nandan Lal v. Mangal Chand, AIR 1927 Pat. 383. In this view of the matter we need not concern ourselves with the question as to whether a revisional application under section 115 of the Code is maintainable against the order passed by a District Judge refusing to transfer a suit under section 24 of the Code."
(B) JUDGMENTS HOLDING SECOND APPLICATION UNDER SECTION 24 CPC NOT MAINTAINABLE AND PETITION UNDER ARTICLE 227 OR REVISION UNDER SECTION 115 CPC MAINTAINABLE
22. This Court in Sunita Devi Vs. Ram Kripal and another11 , considered the scope of section 24 of C.P.C. and held as under:
"8. The expression "the High Court or the District Court" clearly indicates that the power of the District Judge and that of the High Court under section 24 of the C.P.C. is mutually exclusive. The word "or" in the expression "the High Court or the District Court" in sub-section (1) is used disjunctively and not conjunctively which means that a person can move either the High Court or the District Court and not both the Courts in succession one after the other. Thus, from the aforesaid expression it is crystal clear that the application under section 24 of the C.P.C. can either be moved before the District Judge or the High Court and cannot be moved simultaneously or one after the other. Thus, the remedy can be availed either by approaching the District Judge or directly to the High Court. Since the jurisdiction of the District Judge and the High Court is concurrent under section 24 of the C.P.C., so if one party has approached the District Court, that party would be precluded from approaching the High Court under section 24 of the C.P.C. The High Court under section 24 of the C.P.C. cannot sit over the order of the District Judge as a Revisional Court or as an Appellate Court.
x x x x
10. From the above provision of the Cr.P.C. it is clear that if any transfer application is rejected by the Sessions Judge the applicant can come to the High Court for getting the case transferred from one Court to the other in the same judgeship on the same ground but there is no such provision in the C.P.C. So, in the absence of such provision no party can approach the High Court after rejection of his application by the District Judge. In this reference, the ruling of the Hon'ble High Court rendered in Dadi Jagannadham v. Jammulu Ramulal, may be referred to. In this ruling, it has been held that the Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result.
11. So, in the absence of any specific provision in the C.P.C. a person cannot approach the High Court under section 24 of the C.P.C. or any other provision of the C.P.C. to get his case transferred from one Court to another in the same judgeship after rejection of his transfer application by the District Judge on the same ground. But he is not remediless. He may approach the High Court for this purpose by means of filing the writ petition under Article 226 and 227 of the Constitution of India and may invoke the High Court's power of superintendence" 9. In view of the aforesaid, I find that transfer application filed by the applicant is not maintainable. Consequently, the transfer application deserves to be dismissed."
23. The decision in Sunita Devi's case (supra) was followed by this Court in Indian Oil Corporation Ltd. Vs. Ram Swaroop Bajaj, in Transfer Application (Civil) No. 34 of 2016, decided on February 2016, wherein it has been observed as under :
"5. From perusal of the aforesaid provisions, it is apparently clear that no power has been conferred on the High Court to set aside the order passed by the District Court on an application under section 24 of C.P.C.
6. In the case of Dr. Ajay Chaturwedi v. Smt. Shobhanal, a Division Bench of this Court has considered the nature of power under section 24 of C.P.C. and held that transfer of proceedings of suit, appeal etc. can be directed by the High Court/District Court on an application as also suo moto. This power of transfer is not an exercise of original jurisdiction, it is not an exercise of appellate jurisdiction nor it is an exercise of revisional jurisdiction. The power of transfer of suit and other proceedings is an exercise of power of superintendence. The legal position has also been explained by the Madras High Court in the case of P. Karuppiah Ambalam v. Ayya Nadar. The power conferred under section 24 of C.P.C. gives power to two Superior Courts, viz., the High Court or the District Court to withdraw any suit, appeal or other proceedings pending in any Court subordinate to it and either try and dispose of the same, or transfer the same for trial or disposal to any Court, subordinate to it and competent to try or dispose of the same. Section 24 confers a very wide power, and it is intended to enable the two Superior Courts mentioned in it to exercise their general power of superintendent over Subordinate Courts, or in the interest of justice."
24. A Division Bench of Kerala High Court in Ariamma Sachariah vs. Rose Elizabeth Kurian in C.M.C. no. 94/2000 decided on February 26, 2004, held as under :
"8. A perusal of the provisions would show that power has been given to the District Court or the High Court to order transfers. Of course, in cases where suits or proceedings lie outside the jurisdiction of the District Court, power under Section 24 of the C.P.C. can be used only by the High Court. According to us, an interpretation of Section 24 of C.P.C. will clearly show that a party can approach the District Court or High Court for transfer of cases. That does not mean that party, who did not get favourable orders by filing petition under Section 24 of C.P.C. before the District Court can approach the High Court for the same relief.
9. The main attack is that even if the order is passed by the District Court under Section 24, the party can be allowed to approach this Court under Section 24 of the C.P.C. We are of the view that this contention cannot be accepted. According to us, the party can approach this Court under Article 227 of the Constitution to redress their grievances. If we accept the interpretation given by the learned Counsel for the petitioners that will lead to multiplicity of proceedings and waste of time.
10. In the above view of the matter, we are of the view that once an order is passed in a petition under Section 24 of C.P.C. by the District Court, that order can be challenged and the party cannot file another petition under Section 24 of C.P.C. for the same cause of action before the High Court."
25. The Madras High Court in Sebastian vs. R. Prabakaran and others in Transfer Civil Miscellaneous Petition (MD) No. 19 of 2011 and M.P. (MD) No. 1 of 2011, decided on March 4, 2011 has observed as under :
"12. Under this circumstance, a prime question is arisen as to whether this second petition, for the very same relief which was rejected in O.P.No.101 of 2010 by the learned Principal District Judge, Dindigul, is maintainable?
X X X X
32. On coming to the instant case on hand, the petitioner after making allegations against the learned Subordinate Judge, Palani holding Camp-Court at Kodaikanal had originally filed a transfer petition in Transfer O.P.No.101 of 2010, on the file of the learned Principal District Judge, Dindigul. That petition was dismissed. Again the petitioner has approached this Court with this transfer petition for the second time seeking the very same relief, transfer of the appeal suits in A.S. No.46 and 47 of 2009 from the file of the learned Subordinate Judge, Palani to any other Subordinate Judge's Court at Dindigul District.
X X X X "37. Keeping in view of the fact and on considering the submissions made on behalf of both sides, this Court is not inclined to allow this petition on the ground that the second transfer petition filed under Section 24 of the Code of Civil Procedure is not maintainable, when an earlier transfer petition under Section 24 of the Code of Civil Procedure was rejected by the learned Principal District Judge, Dindigur District."
26. The Karnataka High Court in M.V. Ganesh Prasad vs. M.L. Vasudevamurthy and others12, observed as under :
"The reliance placed by Sri Udaya Holla, learned Counsel for the petitioner in the decision reported in 1984 II LLJ 508 was in the context as to whether a second revision petition under Section 24 in itself can be filed to the High Court on the rejection of an application filed under Section 24 of C.P.C. or whether a C.R.P. under Section 115, C.P.C. can be filed. This Court had ruled that a second application under Section 24, C.P.C. does not lie when an application made under the very provision has already been dismissed by the District Court. As against such an order a revision under Section 115, Cr.P.C. can be entertained."
C. JUDGMENT HOLDING THAT SECOND APPLICATION UNDER SECTION 24 AS WELL AS REVISION UNDER SECTION 115 CPC MAINTAINABLE
27. The Division Bench of Andhra Pradesh High Court in Munnangi Ramakrishna Rao vs. Vanakuru Venkata Siva Ramakrishna Prasad and others in Transfer Civil Miscellaneous Petition No. 492 of 2002 decided on April 21, 2003 has held as under :
"A transfer petition filed before the District Court is a ''proceeding'. Since any order, either allowing or refusing to transfer a suit from one Court to another, finally disposes of the transfer petition, there can be little doubt that such order is amenable to revision both prior and subsequent to 1999 Amendment to C.P.C. Therefore, we hold that revision against an order passed in a petition filed under Section 24 C.P.C., either allowing or refusing to transfer a suit or proceeding by the District court is maintainable. The point is answered accordingly.
x x x x A plain reading of the above Section shows that both High Court and District Court have concurrent jurisdiction to transfer proceedings in any Court subordinate to them to another Court either suo motu or on application by any of the parties to the proceedings. There is nothing in the said Section to suggest that when the District Court is seisin of a similar application the High Court should not entertain an application for the same purpose.
x x x x It is thus seen that both Patna and Calcutta High Courts have also taken the view that an unsuccessful party before the District Court can move a fresh application for the same purpose in the High Court, which impliedly means that he need not question the order of dismissal by the District Court either under Section 115 C.P.C. or under Article 227 of the Constitution. Therefore, we hold that a petition under Section 24 C.P.C. is maintainable even without the order of dismissal of such petition by the District Court being questioned either under Section 115 C.P.C. or under Article 227 of the Constitution of India. The point is answered accordingly."
MEANING OF WORDS ''OTHER PROCEEDINGS'
28. The moot point involved here is whether an order granting or refusing a transfer application by the District Judge is a 'case decided' within the meaning of Section 115 CPC, as amended in its application to the State of U.P. Needless to say that it would further postulate if proceedings for transfer under Section 24 CPC, culminating in the order of the District Judge either way is 'other proceeding' within the meaning of Section 115(1) of the Code. In the State of Uttar Pradesh, since there is an added sub-Section (3) of Section 115 introduced by U.P. Act No. 14 of 2003, it would also require examination whether orders made on a transfer application by the District Judge, either way pass muster under sub-Section (3) of Section 115.
29. We have given our thoughtful consideration to the matter. It is true that orders made on an transfer application do not have the effect of any kind of a pronouncement on the rights of parties involved in the suit or a part thereof, but the expression 'case decided' under Section 115 CPC employs the expression in the context of proceedings that can be best gathered from the precise phraseology of the relevant part of the statute. The relevant words in sub-Section (1) of Section 115 say: "case decided in an original suit or other proceeding....."
30. The question to be examined is whether words 'other proceeding' would mean proceedings akin to a suit, in the sense that a part of the proceedings in the suit that may decide an issue involving some kind of a determination and pronouncement about the rights of parties, subject matter of the suit or do the words 'or other proceeding' would include something so ancillary or incidental to the suit that it would involve no pronouncement at all about the rights of parties.
31. Scope of the words ''other proceedings' used in Section 115 of the CPC was considered by the Patna High Court in Durga Devi and another vs. Vijay Kumar Poddar and another13. Relevant paragraphs of aforesaid judgment read as under :
"30. The learned counsel appearing for the revisionists would submit that civil revision is not barred if an order is passed which would tantamount to final disposal of the suit or other proceedings and the terms ''other proceedings' have to be understood in their connotative expanse. Their emphasis is on the terms ''other proceedings'. Regard being had to the said submission, it is obligatory on our part to appreciate what the terms ''other proceedings' do convey.
31. In Black's Law Dictionary, Sixth Edition, the term ''proceeding' has been described to mean in a general sense the form and manner of conducting judicial business before a court or judicial officer and includes all possible steps in an action from the commencement till the end.
32. In Advanced Law Lexicon, Third Edition, 2005, by P. Ramanatha Aiyar, the term ''proceeding' has been dealt with at page 3746. The said term, as has been stated therein, signifies that a proceeding in a civil action is an act necessary to be done in order to attain a given end. It is a prescribed mode of action in carrying into effect a legal right.
33. The purpose of referring to the various law dictionaries is only to appreciate what meaning is to be placed on the terms ''other proceeding.' As we have already indicated herein above, the proceeding must be akin to the suit and it should be an independent proceeding for the phrase used in the proviso to Section 115 of the Code is suit or proceeding. There are several applications which require independent adjudication relating to the maintainability of the suit and once the said adjudication is complete, there can be no doubt that the proceeding comes to an end inasmuch as it would have an effect of finally disposing of the proceeding. The two significant facts indicate that the interlocutory order passed must be such which must fit into the compartment engrafted in the restrictive spectrum of the proviso, i.e., the suit or proceeding would have been finally disposed of. It is further worth noting that the language used in the proviso in the course of a suit or ''other proceeding' is of immense significance. There can be independent proceeding.
34. Corpus Juris Secundum deals with ''proceeding' as follows :-
"Proceeding.-The terms "proceeding" and "proceedings" are discussed generally in Actions 1 h (c) and, with reference to bankruptcy, in Bankruptcy 1. The terms have been held to be synonymous with "ease" see Actions 1 (b) (1), and "cause" see Actions 1 (e) (1), and also have been held synonymous with or have been distinguished from, "action", "judgment", "process", "prosecution", and "suit" see Actions 1 h (1)(b)."
35. In Words & Phrases, Permanent Edition, Volume 34, published by West Publishing Co., the term ''proceeding' used in the provision has to be tereated as akin to the suit and it has to have the colour and character of an independent proceeding.
36. The acid test which is to be applied is that if by termination of such a proceeding an independent cause of action is put at naught, the application for revision would be maintainable. The interlocutory orders made in the course of hearing of a suit or proceeding is not amenable to revisional jurisdiction if such an order does not put an end to the suit or proceeding and as we have already indicated, the proceeding has to have an independent character. Emphasis in the present provision is whether the order in favour of a party applying for revision would have given finality to the suit or other proceeding. If the answer is ''yes', then the revision is maintainable and if the answer is in negative, the revision is not maintainable. The test that is required to be applied in every case so as to find an outcome is whether the order is interim in nature of finally disposes of the suit or other proceeding.
32. Further, in Johra Bi and others vs. Jageshwar and others14, Madhya Pradesh High Court has held in para 20 as under :-
"20. The question still subsist what is the meaning to be given to "other proceedings". In our opinion, there is no reason to restrict the meaning of "proceeding" akin to the suit. There may be proceedings parallel to the suit which may be independent proceedings. The phrase used in proviso to section 115 is suit or proceeding. Proceeding has to be given wide meaning. Some light is thrown by the explanation added to section 141, Civil Procedure Code is applicable to proceeding under Order 9, Civil Procedure Code also.
Several applications which require independent adjudication before filing of suit as to maintainability of suit before its registration can be "proceeding" within proviso to section 115(1) Civil Procedure Code, therefore, once an application is decided revision would be maintainable if would have an effect of finally disposing off the "proceeding" though it has no effect on the suit at that point of time. Proceedings may also arise from the suit itself and those may be the proceedings within the meaning of proviso to Section 115(1) of Civil Procedure Code."
33. This Court in Jagdish Narain Tandon and others vs. Onkar Nath Tandon15, it was held:
"6. Remedy of revision as provided under Section 115 C.P.C. for Uttar Predesh is from an order passed in a case decided in an original suit or other proceeding by a subordinate Court where no appeal lies against that order. Order of Additional District Judge, passed in revision under Section 115 C.P.C. was further challenged in revision under Section 115 C.P.C. before this Court in M/s. Jupiter Chit Fund (Pvt.) Ltd. v. Dwarika Dinesh Dayal, AIR 1979 All. 218 (FB). Full Bench of this Court relying upon earlier Full Bench decision of this Court in Har Prasad Singh v. Ram Swarup, AIR 1973 All 390 (FB), held that the phrase ''cases arising out of original suit'' does not include decisions of appeals or revisions. The phrase ''other proceeding'' refers to the proceedings of original nature and cannot include decisions of appeal or revision. The phrase ''other proceeding'' have to be read ejusdem generis with the words original suit. It was held that revision under Section 115 C.P.C. is not maintainable from revisional order of subordinate Court. This judgment of Full Bench has been affirmed by Supreme Court in Vishesh Kumar v. Shanti Prasad, AIR 1980 SC 892, holding that we are of opinion on the first question that the High Court is not vested with revisional jurisdiction under Section 115 of the Code of Civil Procedure, over a revisional order made by the District Court under that section."
34. The pronouncement of this Court in Jagdish Narain Tandon's case (supra) was in the context of an issue whether an order passed by the Appellate Court during the course of the appeal against one of the parties could be revised under Section 115 CPC. The remarks of this Court, therefore, that the phrase 'other proceeding' have to be read ejusdem generis with the words 'original suit' are not a pronouncement about the character of the 'other proceeding', vis-à-vis the impact of these on the rights of parties involved in the suit, but that, that the 'other proceeding' should also be ones taken in the exercise of original jurisdiction as contradistinguished from the appellate jurisdiction. The principle in Jagdish Narain Tandon's case (supra), notwithstanding the invocation of the ejusdem generis principle to hold that 'other proceeding', is to be understood in the context of a suit, in no way suggests that 'other proceeding' must be akin to a suit in the sense that the lis involved in the suit itself or a part thereof must be decided thereby. The principle in Jagdish Narain Tandon, for all that it means, is that ''other proceeding' in Section 115 CPC, must be akin to a suit in the sense that the proceedings are original; not appellate or revisional.
35. The question, what ''other proceeding' in the context of Section 115 CPC would mean, is well elucidated by the decision of the Patna High Court in Durga Devi's case (supra) and the Madhya Pradesh High Court in Johra Bi's case (supra).
36. The order passed on a transfer application by the District Judge under Section 24 CPC, in our opinion, is ''other proceeding' within the meaning of Section 115 CPC, because the proceedings, though ancillary to the suit, are judicial in nature, where the Court has to consider grounds for transfer urged by one party and opposed by the other, together with the material on record. The Court then proceeds to decide whether the suit, appeal or whatever the nature of the cause, ought to be heard by one Court or the other. The outcome may not have any direct impact on the lis involved in the suit, appeal or other kind of proceedings, subject matter of the transfer application, but a decision is to be judicially arrived at by the District Judge after due application of mind and hearing parties. It is in this sense that a transfer application is ''other proceeding' and the order passed thereon a ''case decided', because the order passed on the transfer application by the District Judge disposes it of finally. Since the order passed on a transfer application by the District Judge under Section 24 CPC is, for very obvious reasons, not an order passed by the District Court in the exercise of its appellate or revisional jurisdiction, a revision to the High Court under Section 115 (1) CPC, as amended by U.P. Act No. 31 of 2003 and earlier by U.P. Act No. 31 of 1978, would not be barred.
37. We are, therefore, not in agreement with the law laid down in Jagdish Kumar's case (supra) and Paras Jain's case (supra), insofar as those decisions hold that against an order passed by the District Judge disposing of a transfer application, a revision to this Court would not be maintainable. To that extent, we overrule the said decisions.
MERITS
38. From the facts of the case, it is evident that the application was rejected by the Court below recording a categorical finding that the property in question in the suit is situated in Safipur, District-Unnao and the Civil Judge, Junior Division, Safipur has the jurisdiction to hear the matter in respect of any civil dispute within that area, hence, the case cannot be transferred. The party moved a fresh application before this Court under Section 24 CPC. In the light of these facts, the issue came to be considered as to whether fresh application under Section 24 CPC would be maintainable or the order would be revisable under Section 115 CPC and Article 227 of the Constitution of India. There is another facet of the matter. In case, the application is allowed by the Court below, the opposite party may have grievance against the order passed by the court below allowing the application for transfer of the case raising argument that the parameters laid down therefor have been violated. In such an eventuality, the party aggrieved may have to challenge that order in the next higher court and a fresh application under Section 24 CPC, as such, may not be maintainable as the validity of the order has to be examined by the next higher court.
39. The position cannot be left anomalous in the sense that in one eventuality where an application filed by a party under Section 24 CPC is rejected, he can file a fresh application for transfer of a case to the next higher court under Section 24 CPC, whereas, in case, the application is accepted, the party aggrieved will have remedy to challenge the order passed in the next higher court. There has to be uniformity to the remedies available against the order passed by the court below.
40. Since the order passed by the District Judge has been held by us for reasons indicated to be a ''case decided' and the proceedings under Section 24 CPC ''other proceeding' within the meaning of Section 115 CPC, finality would attach to the District Judge's order once that Court is approached by a party seeking transfer within the District Judge's jurisdiction. The party aggrieved by the orders passed by the District Judge would have to move this Court under Section 115 CPC to set aside the order. Since orders passed on the transfer application is a ''case decided' and disposes of ''other proceeding' within the meaning of Section 115 CPC, the party aggrieved by the District Judge's order cannot invoke the jurisdiction of this Court afresh under Section 24 CPC to set at naught the District Judge's determination without applying under Section 115 CPC to set aside that order.
41. Some very distinctive reasons, based on interpretation of the expression "the High Court or the District Court" occurring in sub-Section (1) of section 24 CPC, have been given in the decision of this Court in Sunita Devi's case (supra). The word ''or' in the expression above mentioned has been construed as disjunctive and not conjunctive. To reach that conclusion, the phraseology employed in the analogous provisions of Section 407 Cr.P.C. has also been considered, which expressly provides for remedy to the unsuccessful applicant before the Sessions Judge in a plea for transfer of a criminal case to approach this Court. The absence of a similar provision under Section 24 CPC has been viewed by this Court to suggest that the power under Section 24 can be invoked by a party once and the determination made by the District Judge binds both parties.
42. For the reasons indicated in Sunita Devi's case (supra) and whatever we have said above, we are of opinion that unless an order passed by the District Judge on an application under Section 24 CPC is challenged through appropriate proceedings, the party aggrieved by the District Judge's order cannot further invoke the jurisdiction of this Court under Section 24 CPC to undo the District Judge's order. Since the order of the District Judge under Section 24 CPC has been found to be revisable by us, there is no reason why a person aggrieved by the District Judge's order under Section 24 CPC would have his remedy under Article 227 of the Constitution, though that remedy cannot be held barred as it embodies the constitutional powers of this Court to superintend Courts and Tribunals subordinate. Nevertheless, in the face of availability of a statutory remedy under Section 115 CPC, the usual principle eschewing the invocation of a constitutional remedy would apply.
43. In view of what we have held above, our answers to the questions referred are these:
(i) The question is answered in the affirmative and it is held that an order passed by the District Judge under Section 24 CPC is revisable under Section 115 CPC as applicable in the State of U.P.
(ii) The question stands answered in the negative and it is held that another application under Section 24 CPC by the same applicant based on the same cause of action would not be maintainable before this Court without challenging the order passed by the District Judge, on the application disposed of by the District Judge under Section 24 CPC through a revision under Section 115 CPC. Normally, the order of the District Judge passed on an application under Section 24 CPC being revisable, the constitutional remedy under Article 227, though not barred, may not be invoked on the sound principle of the availability of an equally efficacious statutory alternative remedy under Section 115 CPC.
(iii) The question is answered by holding that the law laid down by this Court in Sunita Devi's case (supra) and Indian Oil Corporation's case (supra) lay down the law correctly on the subject matter in issue and the decision in Jagdish Kumar's case (supra) and Amit Kumar Pachauri's case (supra) do not lay down the correct law.
44. The reference is answered, accordingly.
45. Let the papers be placed before the appropriate Bench according to the Roster.
(Jaspreet Singh) (Rajesh Bindal)
Judge Chief Justice
Lucknow
November 10, 2022
Manish Himwan
Whether the order is speaking : Yes/No
Whether the order is reportable : Yes