Allahabad High Court
Vivek Raj Singh vs Civil Judge Junior Division Tilhar ... on 21 April, 2022
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 20 Case :- TRANSFER APPLICATION (CIVIL) No. - 57 of 2019 Applicant :- Vivek Raj Singh Opposite Party :- Civil Judge Junior Division Tilhar Shahjahanpur And Anr. Counsel for Applicant :- Subhash Vidyarthi,Sarvesh Kumar Dubey Counsel for Opposite Party :- Gyan Singh Chauhan Hon'ble Jaspreet Singh,J.
1. The instant petition for transfer has been moved under Section 24 C.P.C. with the prayer that the Original Suit bearing No. 140 of 2013 pending in the Court of Civil Judge, Junior Division, Tilhar, District Shahjahanpur be transferred from the said District to the appropriate Court in District Lucknow.
2. The learned counsel for the parties have argued the matter at length dwelling into the merits of the transfer application.
3. In brief the contention of the learned counsel for the petitioner is that the private respondents have instituted a suit for cancellation of a will before the Civil Judge Junior Division, Tilhar, District Sahjahanpur wherein the present petitioner is the defendant. It is also urged that while contesting the proceedings at Tilhar, an unfortunate incident occurred which has the effect of obstructing the course of justice, as an attempt was made by unknown persons but presumably at the behest of the respondent threatening the petitioner to stop pursuing the case.
4. It has also been pointed out that a supplementary affidavit has been filed by the counsel who had gone to argue the case and had received the threat.
5. It is also urged that after the incident occurred, the application moved by the petitioner under Order 7 Rule 11 C.P.C. was dismissed, however, the petitioner assailed the matter before the District Judge at Shahjahanpur which was allowed and the matter was sent back to the Civil Judge, Junior Division, Tilhar. It is also urged that the petitioner have difficulty in contesting the proceedings at Tilhar.
6. Though, the learned counsel for the respondents has refuted the aforesaid contentions and has stated that the allegations are false and have been deliberately incorporated to seek a transfer but apart from controverting the contentions on merit, Sri G.S. Chauhan, learned counsel for the respondent has raised an objection regarding the maintainability of this transfer petition at Lucknow.
7. It is urged that the proceedings of which transfer is sought is pending before the Civil Judge, Tilhar, District Shahjahanpur which is outside the territorial jurisdiction of this Court, inasmuch as, it is beyond the limits of Oudh, hence, the petition for transfer will not be maintainable before this Court at Luckow.
8. A specific query was put to the learned counsel for the petitioner to indicate as to how the instant petition is maintainable at Lucknow and in response Sri Shantanu Sharma, learned counsel for the petitioner has submitted that the suit is in respect of cancellation of a Will which is executed and registered at Lucknow. It is also submitted that the parties are residents of Lucknow and thus part of cause of action arises at Lucknow.
9. He further relied upon the decision of the Apex Court in the case of Sri Nasiruddin Vs. State Transport Appellate Tribunual reported in (1975) 2 SCC 671 and placed reliance on paragraph 38 to submit that in civil cases where even part of cause of action arises within the territorial jurisdiction of Oudh then this Court would have jurisdiction and in this case since the the Will in question was executed and registered at Lucknow, of which the cancellation has been sought, therefore, part of cause of action arises at Lucknow, hence, this Court has ample jurisdiction to try the instant transfer petition which emanates from the said suit.
10. It is further submitted by Sri Sharma, learned counsel for the petitioner that the testator was also a resident of Lucknow and upon her death, the will also became effective at Lucknow as it was also registered with the Sub Registrar at Lucknow, hence, in a suit for cancellation of a Will as in this case, the whole cause of action has accrued at Lucknow.
11. The Court has heard Sri Shantanu Sharma, learned counsel for the petitioner and Sri G.S. Chauhan, learned counsel for the respondent and has also perused the material on record.
12. Since the question of maintainability has been raised, therefore, the Court will first advert to the issue of maintainability on the ground of territorial jurisdiction and if found maintainable then shall proceed to consider the averments of the respective parties on merit.
13. At this stage, it will be relevant to notice the contents of paragraph 38 of the decision of Naseeruddin (supra) which reads as under:-
"38. To sum up. Our conclusions are as follows. First, there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the Order Second, the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third, the Chief Justice has power under the second proviso to para 14 of the Order to direct in his discretion that any case or class Allahabad. Any case class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad, instead of Lucknow is wrong. The word "heard" means that cases which have already been instituted or filed at Lucknow may in the para 14 of the discretion of the Chief Justice under the second proviso to Order be directed to be heard at Allahabad. Fourth, the expression cause of action with regard to a civil matters means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises when the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place."
14. From the perusal of the aforesaid, it will be noticed that the Apex Court clearly held that in civil cases where the cause of action arise outside the specified areas in Oudh then Allahabad will have the jurisdiction. While if the cause of action in part arises in the specified Oudh areas and part of cause of action outside the specified areas, it will be open for the litigant to frame the case appropriately to attract the jurisdiction either at Allahabad or at Lucknow.
15. It will be relevant to notice that the instant case has been preferred for transfer of proceedings which are admittedly pending before the Civil Judge, Junior Division, Tilhar, District Shahjahanpur. It is not in dispute that Tilhar, in district Shahjahanpur, is outside the specified areas of Oudh. Ordinarily, the matters relating to District Shahjahanpur are not within the jurisdiction of this Court unless ofcourse a part of cause of action arises within the jurisdiction of this Court within the specified areas of Oudh.
16. It is in this context if the pleadings delivered by the petitioners are noticed, it would reveal that though the will may have been executed and registered at Lucknow but it relates to a property situate within the territorial jurisdiction of District Shahjahanpur. It is for the said reason that the suit was instituted in terms of provisions of Section 16 of C.P.C. in District Shahjahanpur.
17. However, what is material for the present controversy is not the will in question rather it is the threat perception which has been perceived by the petitioner which has given the cause of action to initiate the proceedings under Section 24 C.P.C.
18. A suit relating to an immovable property is to be filed within the territorial jurisdiction where the such property situate in terms of Section 16 C.P.C. which reads as under:
"16. Suits to be instituted where subject matter situate:- Subject to the pecuniary or other limitations prescribed by any law, suits
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) or the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain.
Explanation.-- In this section "property" means property situate in 1[India]"
19. The cause of action for framing and filing of a suit is altogether different from a cause of action seeking transfer from one district to another.
20. In Smt. Jyotsna Dixit v. Civil Judge, Khiri and others, reported in 1999 (1) A.W.C. 107, this Court had the occasion to consider the issue regarding the exercise of territorial jurisdiction in respect of a transfer petition under Section 24 CPC and in the said case a transfer of a suit pending before the Court of Civil Judge, Khiri was sought to be transferred to appropriate Court in District Varanasi and the transfer petition was filed at Allahabad. After considering the decision of Naseeruddin (supra), the Court in Paragraph-11 held as under:-
11. Now in the present case, the cause of action for the application under Section 24 of the Code, arose on the initiation of proceedings at Lakhimpur Khiri. Solemnisation of marriage at Varan as 1 may be a cause of action for the matrimonial proceeding and the petitioner may be said to be entitled to initiate proceeding, if she so wishes at Varanasi, but such cause of action is distinct and separate from the cause of action for initiation of proceedings under Section 24 of the Code. Such cause of action for transfer of the case arises at initiation of the proceedings at the Court where the plaintiff had instituted the suit. There cannot be any part of the cause of action for transfer of the suit at any place outside Lakhimpur Khiri where the suit has been instituted. Then again. It is a suit pending before the Court within the specified area of Oudh, in respect whereof the Court at Allahabad is precluded from exercising jurisdiction by reason of the compartmentallsation which is peculiar to Uttar Pradesh. It is the Court at Oudh, namely. Lucknow Bench which has jurisdiction in respect of Lakhimpur Khiri by reason of the determination by the Chief Justice under paragraph 14 of the 1948 Order. The suit instituted at Lakhimpur Khiri is sought to be transferred. Lakhimpur Khiri is situated within the Oudh area. It is only the Court at Lucknow can exercise jurisdiction in respect of the said suit. The contention that the Lucknow Bench cannot order transfer to a place outside its prescribed area, is wholly impermissible inasmuch as it can direct transfer of a case pending within its area even to a Court outside its area. It is the question of transferring a suit pending at Lakhimpur Khiri which can be exercised by Lucknow Bench. Allahabad Bench could not exercise jurisdiction in respect of the suit pending at Lakhimpur Khiri even for the purpose of transferring the same to a Court within its Jurisdiction, namely, at Varanasi."
20. In Mahendra Pratap Bhatt v. Smt. Saroj Mahana, reported in 2016 (116) ALR 742, the issue before the Division Bench arose from an order passed by the learned Single Judge exercising powers under Section 24 CPC whereby it had referred the matter for mediation at Lucknow in respect of proceedings which were pending before the Court at Allahabad. The Division Bench found that since the matter was pending at Allahabad, the Court did not have the jurisdiction to pass an order referring the matter to the Mediation Centre at Lucknow simply on the ground that an FIR was lodged at Lucknow as this FIR lodged at Lucknow would not make any difference as the whole cause of action for a matrimonial proceedings were within the territorial jurisdiction at Allahabad. The relevant portion of the aforesaid judgment in Mahendra Pratap Bhatt (supra) specially paras 6, 14, 15, 19, 20 and 21 reads as under:-
"6. Chapter VIII Rule 5 of the Allahabad High Court Rules makes a provision for appeal against the orders of learned Single Judges which is an intra-court appeal subject to the limits provided therein. The dispute in the present appeal arises out of an application filed under Section 24 CPC before the learned Single Judge of this Court in a cause of action relating to the Family Court at Allahabad. A Division Bench of this Court in the case of Amit Khanna v. Smt. Suchi Khanna, 2009 (1) AWC 929, considered the same issue and came to the conclusion in paragraph 21 as follows:
"21. According to above provision no appeal is maintainable from any order of the Court passed in exercise of its original or appellate jurisdiction, except against orders which have been made appealable under Section 104 C.P.C. Undisputedly, an order passed on an application under Section 24 C.P.C. has not been made appealable under any provision of the C.P.C. including Section 104 C.P.C. Right to appeal is not inherent unless it is specifically provided by the statute. Since the Code of Civil Procedure does not specifically provide for an appeal against an order passed on a transfer application and at the same time by implication excludes an appeal against such an order by virtue of Section 105 C.P.C., therefore, merely for the reason Rule 5 Chapter VIII of the Rules of the Court, 1952 is silent in this regard it would not confer jurisdiction of appeal. If any contrary interpretation is made and the appeal is held to be maintainable it would amount to conferring jurisdiction of appeal which otherwise is not specifically provided but is expressly as well as by implication excluded by Section 105 C.P.C. Thus, in the above scenario the right of special appeal as contemplated by Rule 5 Chapter VIII of the Rules of the Court, even though the same is independent to the provisions of C.P.C., against the order of the single judge passed on a transfer application under Section 24 C.P.C. stands impliedly excluded. "
-------*******----------*****--------------********** "14. A case that has also come at hand is the decision in Special Appeal No.973 of 2010, U. P. Sunni Central Waqf Board & Anr. Vs. Raja Khan & Ors. decided on 5.8.2010. In that case, the issue was an order passed by a learned Single Judge issuing notices and passing an interim order in a writ petition arising out of a Civil Suit that was filed before the learned Civil Judge, Hamirpur in a matter relating to district Bahraich. There was a previous history of the litigation also which has been discussed in the said judgment but for the present purpose, suffice it to say that Bahraich falls within the territorial jurisdiction of the High Court at Lucknow and not at Allahabad. Yet, the Suit was filed in Hamirpur which falls within the territorial jurisdiction of Allahabad, and since the Munsarim had made a report that the Suit was not cognizable at Hamirpur, a writ petition was filed against the said report before the High Court at Allahabad in which orders were passed by a learned Single Judge. This was subjected to a Special Appeal in the above mentioned case and the Court allowed the Appeal imposing costs and set aside the judgment of the learned Single Judge in the aforesaid circumstances.
15. The aggrieved party assailed the aforesaid judgment of the Division Bench, to which one of us [Justice A.P. Sahi] was a member, before the Apex Court and the same was upheld with remarks which judgment is reported in 2011 (2) SCC 741, Raja Khan v. Uttar Pradesh Sunni Central Waqf Board and another. The said judgment was subjected to review for expunging of such remarks which was disposed of and the same is reported in 2010 (15) SCC 228, Raja Khan v. Uttar Pradesh Sunni Central Waqf Board and another.
19. In the instant case, the learned Single Judge has assumed jurisdiction to send the matter for mediation at Lucknow on a stated submission which according to the learned Single Judge was a concession."
---------*******------******-------*******-----***** "20. We are of the considered opinion that a jurisdiction cannot be assumed on the concession of the counsel for the parties or even otherwise, in a matter that squarely relates to the dispute at Allahabad.
21. Merely because the opposite party had lodged an F.I.R. at Lucknow and instituted a criminal case, the same would not make the application under Section 24 CPC maintainable in relation to the dispute pending before the Family Court at Allahabad. This assumption, therefore, by the learned Single Judge in our considered view is not the correct view for assuming jurisdiction that is totally lacking."
22. Applying the principles to the instant case, it is found that the averments made in the petition relates to the threat received by the counsel for the petitioner while he was arguing the case before the Court in Tilhar district Shahjahanpur. The difficulty is being faced at Tilhar. Thus, the cause of action for the instant petition for transfer wholely accrues at District Shahjahanpur which is beyond the specified area of Oudh.
23. In matters relating to transfer of a case from one district to another, it is to be noticed that if the case is pending before a Court which is within the specified area of Oudh only in respect of such cases does this Court exercises the powers of transfer under Section 24 C.P.C.
24. In the instant case, the petition for transfer relates to a suit pending in District Shahjahanpur which as noticed above, is beyond the specified area of Oudh, accordingly, this Court has no hesitation to hold that the instant case is not maintainable here at Lucknow. Since the Court has come to the conclusion that it does not have the territorial jurisdiction to entertain the matter, hence, for the said reason the Court does not deem appropriate to examine the averments of the respective parties on merits.
25. The petition is dismissed solely on the ground that it is not maintainable at Lucknow, however, liberty is granted to the petitioner to move the appropriate Court in Prayagraj.
Order Date :- 21.4.2022 Asheesh