Allahabad High Court
Jaikaran Singh And 3 Others vs Balakram And 5 Others on 20 May, 2020
Equivalent citations: AIRONLINE 2020 ALL 1023
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. In Chamber Case :- MATTERS UNDER ARTICLE 227 No. - 8287 of 2019 Petitioner :- Jaikaran Singh And 3 Others Respondent :- Balakram And 5 Others Counsel for Petitioner :- Virendra Kumar Jaiswal Hon'ble Siddhartha Varma,J.
This application under Article 227 of the Constitution of India has been filed against the order dated 4.10.2019 by which the District Judge Ghaziabad had refused to interfere in the Transfer Application filed by the petitioner. A further prayer in the application is that the Civil Appeal No. 8 of 2019 (Balakram and others vs. Jaikaran Singh and others) be Transferred from the Court of 4th Additional District Judge, Ghaziabad, to any other Court of the judgeship of Ghaziabad.
Even before notices could be issued to the respondents, the learned Additional Chief Standing Counsel Sri Neeraj Upadhyay opposed the filing of the instant application under Article 227 of the Constitution of India and, therefore, before entering into the merits of the case, the Counsel were heard with regard to the maintainability of the application under Article 227 of the Constitution of India.
Learned counsel for the petitioner relied upon Sunita Devi vs. Ram Kripal and another1 and submitted that an application when was rejected by the District Court under Section 24 of the C.P.C., a further application under Section 24 of the C.P.C. was not maintainable before the High Court. Learned counsel relied upon the provisions of Section 24 of the C.P.C. and submitted that when the provisions of Section 24 of the C.P.C. itself stated that an Application for Transfer or withdrawal of the Suit could be filed before the High Court "or" the District Court then the provision had to be construed strictly and relying upon Dadi Jagannadhan v. Jammulu Ramulu and Other2 submitted that when only one Court could be approached because of the word "or" between the word "High Court' and "District Court" then a party could approach either the High Court or the District Court and it could not approach the High Court after approaching the District Court under the same jurisdiction. He submitted that the High Court under its supervisory powers could look into the judgement of the District Court but it could not entertain a fresh Transfer Application when once it had been rejected by the District Court.
Learned counsel submitted that legislature chose its word very carefully and the Court could not add words to a statute and, therefore, he submitted that when it was provided that either the High Court or the District Court could transfer a Suit then, when, once the application was rejected by the District Court then the same application could not be filed before the High Court.
Learned Additional Chief Standing Counsel, however, in reply, submitted that even though the order passed by the learned District Judge was final it did not decide any controversy between the parties when it terminated the proceeding with regard to the Transfer Application. No litigation between the parties was brought to an end. Learned Standing Counsel submitted that an order in a Transfer Application was virtually an administrative order passed on the judicial side.
Learned Standing Counsel also submitted that when Section 24 of the C.P.C used the words "High Court or the District Court" then it did not mean that when the application was filed before the District Court then the filing of the application before the High Court was excluded. Learned Standing Counsel relied upon Sections 438 and 439 of the Cr.P.C. and submitted that an anticipatory bail or a bail application could be filed in both the District Court and the High Court, one after the other. Learned Standing Counsel submitted that if the provisions of Order IX Rule 13 of the CPC were perused then it would become clear that legislature intended that after an Appeal had been disposed of against a decree alleged to have been passed ex parte then no application lay under the Order IX Rule 13 of the CPC for setting aside the ex parte decree and, therefore, he submitted that unless the filing of the application under Section 24 was excluded by any provision of Section 24 of the CPC before the High Court after the District Court had rejected an earlier application, the transfer application could be filed one after the other in the two different Court. He, therefore, submitted that when the application was rejected by the District Court it could definitely be independently filed before the High Court.
Learned Standing Counsel further submitted that if the application under Section 24 of the C.P.C. had decided any litigation between the parties then of-course the supervisory jurisdiction under Article 227 could be invoked. Learned Standing Counsel submitted that a supervisory jurisdiction could have then looked into the merits of the judgement passed by the District Court. In a Transfer Application, he submitted that, when the merits of the Transfer Application had been looked into by the District Court and an order had been passed, then the High Court was not required to look into the merits of the order passed by the District Court but it was required to look into the merits of the Transfer Application afresh as had been filed under Section 24 of the CPC before it. Learned Standing Counsel submitted that under Article 235 of the Constitution of India the High Court had power of superintendence over its District Courts and, therefore, it was aware of how judges in the District Court were functioning and had a wider vista before it of its judges in the State than was available with District Courts. Therefore, the Transfer Application which was filed after the transfer application was rejected by the District Court was virtually a fresh application filed before the High Court. It was not in any way filed under the supervisory jurisdiction whereby the order of the District Judge passed on the Transfer Application could be looked into and examined on the judicial side.
Learned Standing Counsel further submitted that since there was a judicial hierarchy in the State it was proper that after the party had appraoched District Court it came to the High Court and not vice-versa otherwise it would create an anarchy. He further submitted that if the parties were not satisfied by the order passed by the High Court under Section 24 of the C.P.C. then they could go before the Supreme Court under Section 25 of the CPC. To substantiate that an order passed under Section 24 of the C.P.C. did not adjudicate any rights of the parties learned Standing Counsel relied upon a judgement passed in Asrumati Debi vs. Kumar Rupendra Deb Raikot And others3 and specifically relied upon paragraph 13 of that judgement which is being reproduced here as under:-
13. The question that requires determination in an application under clause 13 of the Letters Patent is, whether a particular suit should be removed from any Court which is subject to the superintendence of the High Court and tried and determined by the latter as a court of extraordinary original jurisdiction. It is true that unless the parties to the suit are agreed on this point, there must arise a controversy between them which has to be determined by the court. In the present case, a single Judge of the High Court has decided this question in favour of the plaintiff in the suit; but a decision on any and every point in dispute between the parties to a suit is not necessarily a 'judgment'. The order in the present case neither affects the merits of the controversy between the parties in the suit itself, nor does it terminate or dispose of the suit on any ground. An order for transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground as has been referred to by Couch C.J. in his observations quoted above. An order directing a plaint to be rejected or taken off the file amounts to a final disposal of the suit so far as the court making the order is concerned. That suit is completely at an end and it is immaterial that another suit could be filed in the same or another court after removing the defects which led to the order of rejection. On the other hand, an order of transfer under clause 13 of the Letters Patent, is, in the first place, not at all an order made by the court in which the suit is pending. In the second place, the order does not put an end to the suit which remains perfectly alive and that very suit is to be tried by another court, the proceedings in the latter to be taken only from the stage at which they were left in the court in which the suit was originally filed.
In that judgement, the power of transfer of the Calcutta High Court under Clause 13 of the Letters Patent was being looked into and it was held that an order passed thereunder was not a judgement between two litigating parties and, therefore, no supervisory power could be exercised over the order passed by the Court. He submitted that the order passed under Section 24 CPC by the District Court also did not settle any issue between the parties.
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.
However, the parties should approach the District Court first and thereafter the High Court as judicial property demand 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. Certainly an order passed on a Transfer Application does not bring to an end the litigation between the parties and, therefore, as has been held in Asrumati Debi vs. Kumar Rupendra Deb Raikot And others (supra) as an order passed under Section 24 of the C.P.C. is not a judgement the High court cannot exercise its supervisory jurisdiction. Thus, once when the doors of the District Court have been knocked the filing of a Transfer Application before the High Court is neither prohibited nor excluded. A bare reading of the Section 24 of the C.P.C. would clarify the point in issue and, therefore, Section 24 of the C.P.C. is being reproduced here as under:
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 is thereafter to try or dispose of such suit or proceeding 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 Cases 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.
In contrast, the provisions of Order IX Rule 13 of the C.P.C. may also be looked into which clearly put a bar on the filing of an application under Order IX Rule 13 of the C.P.C. once the parties had got an Appeal decided by a higher court.
The provisions of Order IX Rule 13 of the C.P.C. are also being reproduced here as under:-
13. Setting aside decree ex parte against defendant. - In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim.
[Explanation. - Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.] Under such circumstances, to say that the legislature desired the filing of only one application, either before the High Court or before the District Court would be an erroneous interpretation.
Therefore, relying on Asrumati Debi vs. Kumar Rupendra Deb Raikot And others4 I hold that since the High Court had not to sit in appeal or under its supervisory jurisdiction over the order passed by the District Court while rejecting a Transfer Application, and in fact it had to independently decide the Transfer Application afresh, the Application under Article 227 of the Constitution of India was not maintainable.
The application, therefore, under Article 227 of the Constitution of India is dismissed as being not maintainable.
Order Date :- 20.5.2020 PK (Siddhartha Varma,J.)