Iqbal Husain v. R. A. Finance (Reg. ) — 1993 DIGILAW 679 (ALL)

JUDGMENT : A.K. Banerji, J. This revision is directed against the order dated 11-2-1993 passed by Incharge District Judge, Budaun by which the said court transferred the proceedings of Original Suit No. 38 of 1993 from the court of the Civil Judge, Budaun to the court of Additional Civil Judge, Budaun. 2. Brief facts are that the plaintiff-revisionists instituted Original Suit No. 38 of 1993 for the relief of injunction directing the -defendant-opposite parties to deliver the possession of the Truck in question to the plaintiff and for fixing easy installments so that the plaintiffs may be able to pay the loan amount to the defendant-opposite parties. The said suit was pending in the court of Civil Judge, Budaun. It appears that an application was filed subsequently before the District Judge, Budaun for transfer of the suit to some other court as the defendants had no hope of getting justice from the said court'. The Incharge District Judge rejected the said transfer application but observed that without going into controversy it would be expedient in the interest of justice to transfer the case to some other competent court. This order was passed by him in his administrative capacity. The suit was recalled from the court of Civil Judge and transferred to the court of Additional Civil Judge in administrative capacity by order dated 11-2-1993. Aggrieved against the said order of transfer the plaintiff-revisionists have preferred the above noted revision in this Court. I have heard Shri M. D. Singh, learned Counsel for the plaintiff-revisionists and Stiri Radhey Shyam, learned Counsel appearing for the contesting opposite party at the admission stage. 3. The main contention of learned Counsel for the revisionists is that the District Judge has acted without jurisdiction in transferring Suit No. 38 of 1993 to the Court of Additional Civil Judge, Budaun without any notice to the revisionists. Learned Counsel has contended that if on an application by a party the proceedings are transferred then a notice to the other side is mandatory under the provisions of Section 24 Code of Civil Procedure. In the present case, as no notice was given to the plaintiff-revisionists before transferring the proceedings, the order is without jurisdiction. In support of his submission, learned Counsel has referred to several decision which shall be noticed subsequently. 4. Section 24(1)(a) of the CPC reads thus: 24. In the present case, as no notice was given to the plaintiff-revisionists before transferring the proceedings, the order is without jurisdiction. In support of his submission, learned Counsel has referred to several decision which shall be noticed subsequently. 4. Section 24(1)(a) of the CPC reads thus: 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 on dispose of the same, or .... Learned Counsel for the revisionist has contended that according to the aforesaid provision a notice to the revisionists had necessarily to be given which admittedly the court had not and, therefore, the order of transfer was without jurisdiction. Learned Counsel has placed reliance upon the decision of this Court in the case of Fatima Begum v. Imdad Ali AIR 1920 All. 249, In the said case the proceedings were pending in the court of the Munsif and the parties had adduced their evidence. On 5-3-1918 when the Munsif proceeded to write the judgment, an application was filed on behalf of the defendant to stay the delivery of the judgment as the said party intended to apply to the District Judge for transfer of the case. On the same day, an application was filed for transfer on the ground that a suit relating to the same property instituted by a third party was pending in the court of the Subordinate Judge. The District Judge ordered the record to be sent for an a notice was issued to plaintiff, but it appears the same was never aent. On 10-3-1918 the District Judge heard the matter and transferred the case in the absence of the plaintiff or his counsel. This order was challenged before this Court and in this case it was held that the transfer of the case by the District Judge on his own motion without notice and without hearing the parties vitiates the order of transfer. Strong reliance has been placed by learned Counsel on this decision. I have carefully perused the same. This order was challenged before this Court and in this case it was held that the transfer of the case by the District Judge on his own motion without notice and without hearing the parties vitiates the order of transfer. Strong reliance has been placed by learned Counsel on this decision. I have carefully perused the same. In my opinion the said decision is clearly distinguishable and will not support the contention of learned Counsel for the revisionist in view of the facts of the present case at hand. As a matter of fact, in the case of Fatima Begum (supra) the court and held that the District Judge had issued notice on 5-3-1918 but the notice was never issued and the transfer application was heard exparte and allowed. The court held as follows: In the explanation which the learned District Judge had furnished upon a reference made by this Court, he does not say that after examining the record he made an order of transfer of his own motion. Of course he was competent to transfer a case from one subordinate court to another of his own motion and in such a case he was not bound to issue notice. But when upon an application by one of the parties he ordered the transfer he was bound to issue notice and hear the parties before be made any order of transfer. In the present case, the observations made in the aforesaid case helps the case of the opposite parties inasmuch as the District Judge had rejected the transfer application of the opposite parties but of his own motion had transferred the case from the court of the Civil Judge to the court of the Additional Civil Judge and in such a situation he was not required to issue notice to the plaintiff revisionists, as held in the aforesaid case. 5. Learned Counsel has also referred to the case of Ram Das and Another Vs. Habib Ullah, AIR 1933 All 178 . 5. Learned Counsel has also referred to the case of Ram Das and Another Vs. Habib Ullah, AIR 1933 All 178 . In this case, relying upon the case of Fatima Begum (Supra) the Division Bench held as follows: It is open to a District Judge to proceed suo moto and transfer a case from one court to another court competent to try it, but when he is moved by one party he is bound to issue notice to the opposite party and to hear such party if it desires to be heard. The facts of this case also do not support the contention of learned Counsel for the revisionists. In this case the plaintiff had made an application to the District Judge for transferring the case from the court of Additional Munsif to the court of Munsif, Havali because there was no presiding officer for the court of Additional Munsif at that time. The District Judge without issuing notice to the defendant ordered the transfer of the case to the court of Munsif, Havali. This Court held that although it was open to the District Judge to suo moto transfer the case from one court to another competent to try it but when he was moved by the plaintiff and on the said application the case was transferred, he was bound to issue notice to the defendant. In the present case, as already noticed above, the transfer order was not passed on the transfer application moved by the opposite parties but the court had rejected the said application and had categorically stated that the case was being transferred in his administrative capacity. Apparently, therefore, in the present case at hand the order of transfer was passed suo moto and not on the application of the opposite parties, which stood rejected. In such a situation no notice was required to be given to the plaintiff as laid down in the case of- Fatima Begum (supra) and the case of Ram Dass (Supra). 6. Learned Counsel for the revisionist has then placed reliance upon the case of Baijnath Prasad Singh Vs. Dasrath Prasad Singh and Another, AIR 1958 Patna 9. In this case a decree in favour of the decree-holder was passed by the Subordinate Judge, Monghyr. The decree was put in execution. 6. Learned Counsel for the revisionist has then placed reliance upon the case of Baijnath Prasad Singh Vs. Dasrath Prasad Singh and Another, AIR 1958 Patna 9. In this case a decree in favour of the decree-holder was passed by the Subordinate Judge, Monghyr. The decree was put in execution. Subsequently the decree-holder applied for transfer of the decree from the said Court to the court of Subordinate Judge I, Begusarai. The District Judge, Monghyr allowed the said application without issuing notice to the judgment-debtor. The facts of the said case, are, therefore, entirely different. Firstly, the transfer was made on the application of the decree -holder. Secondly the execution proceedings were transferred from the court of Subordinate Judge, Monghyr to the Court of Subordinate Judge, Begusarai. In the present case, the proceedings were transferred by the District Judge in his administrative capacity suo moto and from the court of the Civil Judge to the court of the Additional Civil Judge, Budaun. This decision also does not support the contention of learned Counsel for the revisionists in the facts of the instant case. 7. Learned Counsel has then placed reliance upon the decision of a Division Bench of our court in the case of Arya Ayurvedic Trust, Machhodari Park, Varanasi and Another Vs. Board of Revenue, U.P., Allahabad and Others, AIR 1976 All 17 . It was laid down in this case that the transfer of a pending suit down in this case that the transfer of a pending suit from one court to another without notice to the other side could be interfered with in the revisional jurisdiction as the order was tainted with material irregularity. The facts of the said case were different than the one at hand. Besides, it cannot be disputed that if the order of transfer was contrary to the provisions of Section 24 revision before this Court would be maintainable. 8. Having carefully considered the submissions made by learned Counsel for the revisionists and having perused the decision is cited above, I am of the view that the submissions made by learned Counsel cannot be upheld in the facts of the present case. As already noticed above, I have held that the proceedings of the suit were not transferred on the application of the opposite parties but the court had specifically mentioned that the transfer was being made in his administrative capacity. As already noticed above, I have held that the proceedings of the suit were not transferred on the application of the opposite parties but the court had specifically mentioned that the transfer was being made in his administrative capacity. As a matter of fact, the transfer application of the opposite parties was rejected by the said court. In such a situation it can be said that the order of transfer was passed suo moto by the court and as such no notice was required to be given to the plaintiff-revisionist. In fact the decisions cited by the learned Counsel for the revisionists help the case of the opposite parties in so far as it has been held therein that the District Judge can after examining the record, make an order of transfer of his own motion and he- was competent to transfer a case from one subordinate court to another of his own motion. In such a case he was not bound to issue notice. There is another aspect of the matter. In paragraph 13 of the counter affidavit filed on behalf of the opposite parties it has been stated that the case was transferred by the District Judge on 11-2-1993 and was received in the court of the Additional Civil Judge on 12-2-1993. On 11-2-1993 a third party had filed an application for being impleaded. This application was taken up by the transferee court on 12-2-93 in the presence of the counsel for the defendant-opposite-parties and the counsel for the plaintiff-revisionist. The plaintiffs as well as the contesting defendants were granted time to file objections to the impleadment application. On the basis of the said fact learned Counsel for the opposite parties has urged that the plaintiffs had participated in. the proceedings before the transferee court and no prejudice had been caused to the plaintiffs for not issuing of the notice. There appears to be substance in the contention of the learned Counsel for the opposite parties. It has been held in the case of Kanhu Charan Pradhan and Others Vs. the proceedings before the transferee court and no prejudice had been caused to the plaintiffs for not issuing of the notice. There appears to be substance in the contention of the learned Counsel for the opposite parties. It has been held in the case of Kanhu Charan Pradhan and Others Vs. Banambar Pradhan and Another, AIR 1986 Ori 213 , that where of suit is transferred 'administratively from one court to another at the same station for convenience notice of transfer to the parties was not necessary and the High Court in exercise of its revisional jurisdiction u/s 115 CPC will not interfere with an order of the lower court where real and substantial justice has been done. Besides, it will not be out of place to mention that where courts and tribunals are constituted to do justice within the confines of the statutory limits, an undue emphasis on technicalities and enlarging the scope would camp their power, diminish their effectiveness and defeat the very purpose for which they are constituted. In the present case, the plaintiffs were fully aware of the transfer order, their counsel appeared before the transferee court and participated in the proceedings on 12-2-1993. The objection regarding want of notice is a hyper technical objection in the facts of the present case. For this reason also no interference is called for with the impugned order. In another context while considering the question of transfer of proceedings on the ground of convenience the Supreme Court has in the case of Dr. S. Swami v. Ram Krishna Hedge 1990 ACJ 162 observed as follows: The paramount consideration must be to see that justice according to law is done; if for achieving that object the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. 9. In view of the aforesaid discussions, the revision lacks merit and the same is dismissed. In the facts and circumstances of the case the parties shall bear their own costs of this revision. The interim order is discharged and the court below is directed to proceed with the trial of the suit as expeditiously as possible.