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2014 DIGILAW 362 (ALL)

Vakeel Ahmad v. Rashid Khan

2014-01-31

ANIL KUMAR

body2014
JUDGMENT Anil Kumar,J.: - Matter is taken in revised cause list. 2. None appeared on behalf of respondents. 3. Heard the arguments of Sri Mohd. Shakeel, learned counsel for the revisionist. 4. Facts, in brief, of the present case are that revisionist is the owner/ landlord of House No. 439/6-Kha, Mohalla Peer Bukhara, opposite Kalicharan College, Hardoi Road, Lucknow ( herein after referred to as 'property in dispute'), under the tenancy of opposite party no.2/ Kamal Ahmad. 5. Revisionist filed a suit for arrears of rent, ejectment and damages against opposite party no.2, registered as SCC Suit No. 19/94 (Vakeel Ahmad Vs. Kamal Ahmad) in the court of Additional District Judge, Court No.2 Lucknow in which defendant/ tenant Sri Kamal Ahmad put his appearance. Thereafter Sri Kamal Ahmad filed a suit for declaration in respect to property in dispute alleging himself as owner, in the court of Civil Judge , Mohanlalganj ( S.D.) Lucknow registered as Regular Suit No. 96 of 2003 ( Rashid Khan Vs. Vakeel Ahmad). 6. Subsequently an application under Section 24 CPC for transferring the Regular Suit no. 96 of 2003 ( Rashid Khan Vs. Vakeel Ahmad) to the court of Additional District Judge Court no.2 so a Misc Case no. 139-C/2007 ( Rashid Khan Vs. Vakeel Ahmad and others) has been registered before District Judge, Lucknow, after hearing learned counsel for the parties, by order dated 25.8.2007, allowed transferred the said matter /suit to the Court of Additional District Judge, Court no.2 by placing the reliance on the judgment passed by Hon'ble Apex Court in the case of Nagappa Vs. Doda Bharamappa and another 2001(1) ARC 101(SC). 7. Aggrieved by the said order , present revision has been filed challenging the order dated 25.8.2007 passed by District Judge , Lucknow passed in Misc Case no. 139-C/2007 ( Rashid Khan Vs. Vakeel Ahmad and others ). 8. On 16.11.2007 this court has passed an order , the same is quoted as under: - "Issue notice Till next date of listing , although proceedings in the transferee court shall continue but the delivery of final judgment shall remain stayed." 9. Sri Mohd. 139-C/2007 ( Rashid Khan Vs. Vakeel Ahmad and others ). 8. On 16.11.2007 this court has passed an order , the same is quoted as under: - "Issue notice Till next date of listing , although proceedings in the transferee court shall continue but the delivery of final judgment shall remain stayed." 9. Sri Mohd. Shakeel, learned counsel for the revisionist while challenging the impugned order submits that the same is illegal arbitrary in nature as the jurisdiction in respect to try the suit filed by Rashid Khan for declaration vested with Civil Judge , Mohanlalganj ( S.D.) Lucknow where the suit has been instituted and in view of the impugned order by which the said suit has been transferred from the said court to the Court to Additional District Judge, Lucknow Court no.2, one right to appeal of the revisionist will be fortified because if the suit is decided by Civil Judge then in that circumstances the first appeal will lie to Additional District Judge and second appeal will lie to Hon'ble High Court. In this regard he palced reliance on the Section 21(1) (b) of the Bengal, Agra and Assam Civil Court Act, 1887 amended by the U.P. Civil Laws ( Amendment) Act, 1991 ( U.P. Act No. 31 of 1990) which is quoted as under: - "Amendment of Section 21- in Section 21 of the principal Act,- (a) for sub-sections (1) , 1-A) and 1-B) the following sub sections shall be substituted, namely: - " (1) Save as aforesaid an appeal from a decree or order of a Civil Judge shall lie,- (a) to the High Court in any case other than a case referred to in clause(b); (b) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made, whether instituted or commenced before or after the relevant date did not exceed one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may fix from time to time by notification in the Official Gazette." 10. According he submits that the District Judge has completely ignored the said position while passing the impugned order dated 25.8.2007 and wrongly placed reliance on the judgment passed by Hon'ble Apex Court in the case of Nagappa Vs. According he submits that the District Judge has completely ignored the said position while passing the impugned order dated 25.8.2007 and wrongly placed reliance on the judgment passed by Hon'ble Apex Court in the case of Nagappa Vs. Doda Bharamappa and another (Supra) not applicable ,so the same is liable to be set aside. 11. Later on , learned counsel for the revisionist submits that as per information received to him Regular Suit No. 96 of 2003 ( Rashid Khan Vs. Vakeel Ahmad) transferred to the court of Additional District Judge Court no.2 has been dismissed for want of prosecution . 12. After hearing learned counsel for revisionist, the sole controversy to be decided in the matter that whether the order dated 25.8.2007 passed by District Judge, Lucknow transferring the Regular Suit No. 96 of 2003 ( Rashid Khan Vs. Vakeel Ahmad) to the Court of Additional District Judge, Lucknow , Court no.2 is correct or not? 13. To decide the question, it may be necessary to advert to the legislative history of S. 24 of the Code. The first Code of Civil Procedure was Act 8 of 1859. The next Code of Civil Procedure was Act 10 of 1877 which repealed that of 1859. That was amended by Acts of 1878 and Act 12 of 1879. It was then superseded by the Code of Civil Procedure 1882 (Act 14 of 1882). That was amended from time to time between 1882 and 1895 and then superseded by the present Code. 14. Under S. 25 of Act 14 of 1882, the predecessor of S. 24 of the Code, the High Court and the District Court had been given power to transfer a suit pending in a subordinate Court to any other subordinate Court : "competent to try the same in respect of its nature and the amount or value of the subject-matter." 15. It would be clear from the language of the relevant part of S. 25 of Act 14 of 1882 extracted above, that the condition required to be satisfied for transfer of a suit pending in a subordinate Court to any other subordinate Court was that the transferee Court should have pecuniary jurisdiction to try the suit. 16. In S. 24 of the Code of Civil Procedure 1908 (hereinafter referred to as C.P.C., the words "competent to try or dispose of the same." 17. 16. In S. 24 of the Code of Civil Procedure 1908 (hereinafter referred to as C.P.C., the words "competent to try or dispose of the same." 17. In Black's Law Dictionary with Pro-nounciations, Fifth Edition, the expression "Competent Court" has been defined as "A Court either Civil or Criminal having lawful jurisdiction." 18. The word "jurisdiction" as is understood in legal parlance is a term of large and comprehensive import and would embrace every kind of judicial action. Broadly stated, it is the legal right, power or authority by which the Courts and Judges take cognizance of and decide cases. It means the extent of authority of a Court to administer justice not only with reference to the subject-matter of the suit, but also to the territorial and pecuniary limits of its jurisdiction. 19. The expression "competent to try or dispose of the same" appearing in S. 24(1)(b)(ii) CPC has reference to the jurisdiction of a Court within the meaning of the word just referred to. 20. As early as 1920, the question regarding the meaning of the word "competent" appearing in S. 24(1)(b)(ii) came up for consideration before the Patna High Court in Jannat Husain v. Gulam Kutubuddin Ahmad, AIR 1920 Pat 29. The learned Chief Justice (the Hon'ble Mr. Justice Dawson Miller) formulated the question for determination as under : "What is the meaning of the word "competent" in the section just referred to"? Answered the question as under : "In my opinion, the Court is not competent to try the suit unless it has jurisdiction to do so. The jurisdiction of a Court depends not merely upon the nature or subject-matter of the suit but also, in the case of most subordinate Courts, upon the pecuniary value of the suit, and in the case of all upon the local limits of their jurisdiction." has been further held that : "...The Courts to which the District Judge may transfer a case for trial under S. 24, Civil P.C., must be Courts competent to try the same, that is, Courts having jurisdiction to do so, and the mere fact that the District Judge transferred a case for trial from one Court subordinate to his jurisdiction to another similar Court does not confer jurisdiction upon the Court to which the case is transferred, unless it were competent originally to try the suit. I can find nothing either in the Civil Procedure Code or in Act 12 of 1887 which confers any such powers upon the District Judge....." 21. Under S. 25, Act 14 of 1882, the High Court and the District Court were given power to transfer a suit pending in a subordinate Court to any other subordinate Court "competent to try the same in respect of its nature and the amount or value of its subject-matter. 22. These words have been slightly altered, and in their place we now have in S. 24 the words "competent to try or dispose of the same." Under the old section there could be no doubt that all that was required of the subordinate Court to which the case was to be transferred was that it should have pecuniary jurisdiction to try the suit. The deletion of those words from the new section may prima facie suggest that the competence of the Court now required may be either pecuniary or territorial. If the words were to be taken literally, it might be open to argument that the word "competency" includes both pecuniary and territorial jurisdiction. Although the change in the words in the section was not emphasized, this view was certainly expressed by Patna High Court in the case of Jannat Hussain v. Ghulam Kutubuddin Ahmad, AIR 1920 Pat 29 and it has been held that the word "competent" was very wide and included both kinds of jurisdiction. Further, the intention of the Legislature in incorporating the words "and competent to try or dispose of the same" is that the Court to which the suit, appeal or other proceeding could be transferred under S. 24(1)(b)(ii) of the Code must be competent to try or dispose of the case, in the sense that in addition to pecuniary jurisdiction, it should have territorial jurisdiction is amply made clear by omission of the words "competent to try the same in respect of its nature and amount or value of its subject-matter" that appeared in S. 25 (Act 14 of 1882) and insertion of the words "and competent to try or dispose of the same". If the intention of the Legislature was that the transfer can be made to a subordinate Court having pecuniary jurisdiction to try the suit, the Legislature would have retained the words that appeared in S. 25 (Act 14 of 1882) without inserting the words "and competent to try or dispose of the same." Non-retention of the words coupled with insertion of new words, adverted to earlier, in S. 24 would prima facie suggest that the competence of the Court now required has to be both pecuniary and territorial jurisdiction. That would be the meaning of the expression "and competent to try and dispose of the same" appearing in S. 24(1)(b)(ii) of the Code if the literal construction is to be placed. 23. As the jurisdiction of a Court depends not merely upon the nature or subject-matter of the suit, but also upon the pecuniary value of the suit and the local limits of its jurisdiction. The expression "jurisdiction" refers to the authority of a Court to dispense justice not only with reference to the subject-matter of the suit but also to the territorial and pecuniary limits of its jurisdiction. If the expression "competent to try or dispose of the case" appearing in S. 24(1)(b)(ii) of the Code is to be understood, adopting the rule of literal construction the golden rule for the interpretation, it would be clear that the general power of High Court or District Court under S. 24 to withdraw any suit, appeal or other proceeding in any Court subordinate to it and transfer the same for trial or disposal to any Court subordinate to it can be exercised by transferring a suit, appeal or other proceeding only to a Court subordinate to it and competent to try or dispose of the same, that is having jurisdiction - having authority to try or dispose of the suit, appeal or other proceeding with reference to subject-matter of the suit, and territorial and pecuniary limits of its jurisdiction. 24. Indeed, Section 24 confers a very wide power on High Court and District Court and this conferment is intended to enable the two superior Courts in their general power of superintendence over subordinate Courts or in the interest of justice to redistributing of civil work of whatever nature pending in subordinate Courts for the purpose of disposal. 24. Indeed, Section 24 confers a very wide power on High Court and District Court and this conferment is intended to enable the two superior Courts in their general power of superintendence over subordinate Courts or in the interest of justice to redistributing of civil work of whatever nature pending in subordinate Courts for the purpose of disposal. The power can be used where the interests of justice require that a particular cause should not be tried in a particular subordinate Court and should be transferred from that Court and the word "competent" appearing in S. 24(1)(b)(ii) is to be interpreted as both including pecuniary and territorial jurisdiction, it may not nullify the power and render the section useless. 25. If the High Court or the District Court were to find that any suit, appeal or other proceeding pending in any Court subordinate to it should be transferred and if it cannot be transferred for trial or disposal to any Court subordinate to it for want of competence to try or dispose of the same, it can try or dispose of the same itself under S. 24(1)(b)(i) of the Code. In this regard, it is also necessary to go through the provision of Section 15 CPC which provides as under: - " Every suit shall be instituted in the Court of the lowest grade competent to try it. " 26. Section 15 is enacted not merely to avoid overcrowding in the higher Court but also for the convenience for the parties and witnesses who may be examined by them. The object of the section in requiring a suitor to bring his suit in the court of lowest grade competent to try it, is that courts of higher grades shall not be overcrowded with suits. This section is a rule of procedure, not of jurisdiction, and hilst it lays down that a suit shall be instituted in the court of the lowest grade, it does not oust the jurisdiction of the courts of higher grades which they possess uner the Acts constituting them. 27. In Mulla on the Code of Civil Procedure, 18th Edition, at page 336, dealing with the meaning of the word "competent" appearing in S. 15, the learned Author has observed : "Jurisdiction-- The word "competent" used in this section has reference to the jurisdiction of a Court. 27. In Mulla on the Code of Civil Procedure, 18th Edition, at page 336, dealing with the meaning of the word "competent" appearing in S. 15, the learned Author has observed : "Jurisdiction-- The word "competent" used in this section has reference to the jurisdiction of a Court. Jurisdiction means the extent of the authority of a Court to administer justice not only with reference to the subject-matter of the suit but also to the local and pecuniary limits of its jurisdiction. Thus, a Presidency Small Cause Court has no jurisdiction to try suits in which the amount or value of the subject-matter exceeds the prescribed monetary value; this is said to be the jurisdiction of a Court as regards its pecuniary limits. Nor can it try suits for specific performance of contracts or for an injunction or for a dissolution of partnership; this is said to be the jurisdiction of a Court as regards the subject-matter of a suit. Nor can it try a suit on a cause of action that has arisen beyond the local limits of the original civil jurisdiction of the High Court; this is said to be the local limits of its jurisdiction." 28. Further, Section 11 deals with the doctrine of res judicata, that is a matter adjudicated upon or a matter in which judgment has been pronounced. It bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. In order that a decision in a former suit may operate as res judicata in a subsequent suit, it is necessary that the Court which tried the former suit must have been a Court competent to try the subsequent suit. The doctrine as embodied in S. 11 of the Code does not render the interpretation of the word "competent" in S. 24(1)(b)(ii) as including both pecuniary and territorial jurisdiction, in any way unsound. 29. The doctrine as embodied in S. 11 of the Code does not render the interpretation of the word "competent" in S. 24(1)(b)(ii) as including both pecuniary and territorial jurisdiction, in any way unsound. 29. Thus, taking into consideration the words competent to try suit which occur in Section 11 and Section 15 CPC, it is also take into note that Section 21 CPC provides that no objection as to the place of suing shall be allowed, unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. 30. In nut shell, it can be said that the High Court or the District Court, in exercise of the power and jurisdiction under S. 24 of the Code, may either on the application of the parties or ex debito justitiae, 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 and it can withdraw any suit, appeal or other proceeding pending in any Court subordinate to it and try or 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, and, following have been held to be sufficient grounds for transfer : (i) convenience of parties and situation of property, (ii) bias of Judge hearing the case, (iii) two suits involving common question, (iv) avoidance of delay and unnecessary expenses, and (v) preventing abuse of process of the Court. 31. Further, pecuniary jurisdiction in respect to filing of appeal is concerned, the same has been enhanced to Rs. 5 Lakhs by virtue of a notification issued by the High Court of Judicature of Allahabad on May 6, 1995 published in the official gazette in exercise of the powers conferred upon it under Section 21(1) (b) of the Bengal, Agra and Assam Civil Court Act, 1887 amended by the U.P. Civil Laws ( Amendment) Act, 1991. While interpreting the said section, this Court in the case of Sukhbir Singh Vs. While interpreting the said section, this Court in the case of Sukhbir Singh Vs. 2nd Additional District Judge, Muzaffarnagar and others, 2000 (18) LCD 218 has held as under: - "So for as the pecuniary jurisdiction in respect of the appeal is concerned, the same has been enhanced to Rs. 5 Lakhs by virtue of a notification issued by the High Court of Judicature of Allahabad on May 6, 1995 published in the official gazette of the same date, in exercise of the powers conferred upon it under Section 21(1) (b) of the Bengal, Agra and Assam Civil Court Act, 1887 amended by the U.P. Civil Laws ( Amendment) Act, 1991. A perusal of the said notification shows that it was confined to the pecuniary jurisdiction in respect of the appeals those shall lie to the learned District Judge. The said notification does not deal with the pecuniary jurisdiction with regard to Section 115 of the Code of Civil Procedure whereas by virtue of the amendment brought about under Section 115 of the C.P.C. through Act 17 of 1991 shows that under Section 115 of the Code of Civil Procedure 1908 as amended in its application to Uttar Pradesh shall be substituted by the following Section as quoted below: - 115 Revision - The High Court, in cases arising out of original suits or other proceedings [of the value exceeding one lakh rupees or such higher amount not exceeding five lakh rupees as the High Court may from time to time fix, by notification published in the Official Gazette including such suits or other proceedings instituted before the date of commencement of the Uttar Pradesh Civil Laws (Amendment) Act, 1991, or as the case may be, the date of commencement of such notification], and the District Court in any other case, including a case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which has been decided by any court subordinate to such High Court or District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate court appears- (a).........." In the amendment of Section 115 , there is no ambiguity in relation to the pecuniary jurisdiction of the District Judges. It provides that original suit or other proceedings of such higher amount exceeding one lakh rupees but not exceeding five lakh rupees, as the High Court may from time to time fix may lie to the High Court. But such fixation by the High Court is to be made by notification published in the official gazette. Such valuation may include in respect of the suits or other proceedings instituted before the date of commencement of the 1991 Amendment Act. Thus, it appears that Section 115 as amended makes it clear that those matters in which the valuation does not exceed one lakh rupees will lie before the District Judge. If it exceeds one rupees then Revision will lie to the High Court. However, this is subject to the exception that the High Court was granted liberty to fix such higher amount not exceeding five lakh rupees to be amenable to the revisional jurisdiction of a District Judge and that too through a notification published in official gazette. The learned counsel for the petitioner has not been able to show that the High Court had ever issued any notification fixing pecuniary jurisdiction in respect of Section 115 of the Code above one lakh rupees as amended by U.P. Act 17 of 1991. Unless there is notification enhancing the pecuniary jurisdiction beyond one lakh rupees by reason of amended Section 115 through Act 17 of 1991, the jurisdiction of the District Judge is confined to one lakh rupees in respect of Section 115 . To my knowledge there is nothing to show that the High Court had ever published any notification enhancing the value of pecuniary jurisdiction in respect of Section 115 conferred on the District Judge above one lakh rupees. In such circumstances, I do not find any infirmity in the order passed by the learned District Judge holding that the valuation being above one lakh rupees, the Revision does not lie before the learned District Judge, even though the value might be less than five lakh rupees." 32. Before coming to force of Civil Law Amendment Act 1991, Section 21(1) (b) of the Bengal, Agra and Assam Civil Court Act, 1887 came up for consideration before Full Bench of this Court in the case of Behari Lal and another Vs. Before coming to force of Civil Law Amendment Act 1991, Section 21(1) (b) of the Bengal, Agra and Assam Civil Court Act, 1887 came up for consideration before Full Bench of this Court in the case of Behari Lal and another Vs. Keshri Nandan, AIR 1970 Allahabad 201 and has been held as under : - " The question of jurisdiction has to be discussed with reference to Act No. 35 of 1968, which was enacted by the President of India ( hereinafter referred to as the President's Act). It will be convenient to trace the history of legislation, which culminated in the passing of the President's Act. The Bengal, Agra and Assam Civil Courts Act, 1887 ( hereinafter referred to as the Civil Courts Act) deals with jurisdiction of Civil Courts. The Civil Courts Act has been amended from time to time. Section 21 of the Civil courts Act deals with appellate jurisdiction of the High court and District Judges. According to Section 21 (1) (a) , Civil Courts Act, as it originally stood, the maximum limit of jurisdiction of District Judges was Rupees 5000. By the U.P. Civil Laws (Reforms and Amendment) Act, 1954 ( U.P. Act no. 24 of 1954), the limit of jurisdiction of District Courts was raised from Rupees 5000 to Rs.10,000. Part XVIII of the Constitution of India, contains emergency provisions, Under Article 356 of the Constitution the President may issue a proclamation in case of failure of constitutional machinery in States. Sub-clause (b) of Clause (1) of Article 356 provides for a declaration that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Article 357 provides for exercise of legislative powers under Proclamation issued under Article 356. Sub-clause (b) of Clause (1) of Article 356 provides for a declaration that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Article 357 provides for exercise of legislative powers under Proclamation issued under Article 356. Article 357 states: - "(1) Where by a proclamation issued under Clause (1) of Article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent-- (a) for parliament to confer on the President the power of the legislature of the State to make laws.............." By virtue of power conferred on it by Article 357 (1) (a) read with Article 356 (1) (b) , Parliament enacted the U.P. State Legislature ( Delegation of Powers) Act, 1968 ( Act No. 7 of 1968) Section 3 of Central Act No.7 of 1968 run thus: - "(1) The power of the legislature of the State of Uttar Pradesh makes law , which has been declared by the Proclamation to be exercisable by or under the authority of Parliament , is hereby conferred on the President.............." By virtue of the Power conferred on him by Section 3 of Central Act No. 7 of 1968, the President enacted Act no. 35 of 1968. The President's Act ( No. 35 of 1968) made amendments in a number of statutes , Section 21 of the Civil Courts Act was amended by Section 3 of the President's Act. 35 of 1968. The President's Act ( No. 35 of 1968) made amendments in a number of statutes , Section 21 of the Civil Courts Act was amended by Section 3 of the President's Act. Section 3 of the President's Act runs thus: - " In section 21 of the Bengal , Agra and Assam Civil courts Act, 1887, as amended in its application to Uttar Pradesh( hereinafter referred to as the Bengal, Agra and Assam Civil Courts Act) for sub-section (1) , the following sub-section shall be , substituted , namely: - '(1) Save as aforesaid , an appeal from a decree or order of a Civil Judge shall lie-- (a) to the District Judge where the value of the original suit in which , or in any proceeding arising out of which , the decree or order was made, whether instituted or commenced before or after the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1968 , did not exceed twenty thousand rupees, and (b) to the High Court in any other case, (1-A) An appeal from a decree or order of a Civil Judge where the value of the original suit in which , or in any proceeding arising out of which , the decree or order was made exceeded ten thousand rupees but did not exceed twenty thousand rupees instituted in the High Court before the commencement of the Uttar Pradesh Civil Laws Amendment Act, 1968, may be transferred by the High Court for disposal to any District Judge or Additional Judge , subordinate to it." 33. Thus, as per the provisions of Section 21(1) (b) of the Bengal, Agra and Assam Civil Court Act, 1887 amended by the U.P. Civil Laws ( Amendment) Act, 1991 provides in respect to pecuniary jurisdiction, further under Section 2 sub section (4) of the CPC , a District Court is defined as the principal Civil Court of original jurisdiction in the district and section 9 CPC provides that the jurisdiction of a District Court extends, subject to the Rules contained in the Code of Civil Procedure , to all original suits and proceedings of a civil revision . As stated above Section 15 of the Code provides that every suit shall be instituted in the Court of the lowest grade competent to try it. 34. As stated above Section 15 of the Code provides that every suit shall be instituted in the Court of the lowest grade competent to try it. 34. In view of the said facts, suit for declaration in the matter in question is to be tried by Civil Judge, Mohanlalganj , Lucknow and if the said court decide the suit then the first appeal will lie to the District Judge or Additional District Judge and the second appeal to the High Court. However the effect of the impugned order dated 25.8.2007in which the suit No. 96 of 2003 is transferred to the Court of Additional District Judge, Court no.2 Lucknow and the said court decided it then the first appeal will lie to High Court, thus the parties/ litigant will loose the right to file second appeal 35. Hon'ble the Apex Court in the case of Garikapati Veeraya Vs. N. Subbiah Choudhary and others , AIR 1957 SC 540 has held as under: - "(i) that the legal pursuit of a remedy , suit , appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. (ii) the right of appeal is not a mere matter of procedure but is a substantive right. (iii) the institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. (iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decision or at the dated of the filing of the appeal. (v) This vested right of appeal can be taken away only by a subsequent enactment , if it so provides expressly or by necessary in-tendment and not otherwise" 36. In the case of Ganga Bai Vs. (v) This vested right of appeal can be taken away only by a subsequent enactment , if it so provides expressly or by necessary in-tendment and not otherwise" 36. In the case of Ganga Bai Vs. Vijay Kumar and others, AIR 1974 SC 1126 , the Hon'ble Apex Court has held as under: - "The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well-established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. Under section 96(1) of the Code of Civil Procedure,save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any court exercising original jurisdiction, to the court authorized to hear appeals from the decisions of such court Section 100 provides for a second appeal to the High Court from an appellate decree passed by a court subordinate to the High Court. Section 104(1)provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie "from no other orders". Clause(i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". Clause(i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". 'Order 43, Rule 1 of the Code, which by reason of clause (i) of section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in clauses (a) to (w) thereof, Finally, section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a court in exercise of its original or appellate jurisdiction." 37. In view of the above said facts as well as the facts of the present case , I am of the opinion that by order dated 25.8.2007 passed District Judge, Lucknow by which suit for declaration filed in the Court of Civil Judge (S. D.) Lucknow was transferred to Additional District Judge, Court No.2, Lucknow, parties / litigants will loose a right to file second appeal. Further , while deciding the transfer application under Section 24 , has placed reliance on the judgment of Nagappa Vs. Doda Bharamappa and another (Supra), Hon'ble the Supreme court has transferred civil suit pending in the court of Civil Judge (J.D.) to the court of Civil Judge (S.D) thus by the said order there is no infringement of right to any parties to file appeal / Second appeal, hence the said judgement is not applicable to the facts and circumstances of the case, so the order in question is not sustainable. 38. However,as learned counsel for the revisionist has submitted that the Regular Suit no. 96 of 2003 ( Rashid Khan Vs. Vakeel Ahmad) transferred to the court of Additional District Judge, Court no.2, Lucknow has been dismissed for want of prosecution. 39. Accordingly the revision is dismissed as infructuous. 40. No order as to costs.