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2015 DIGILAW 3601 (ALL)

Kanak Srivastava v. Prabha Kant Srivastava

2015-11-19

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal, J. – Heard Shri Akhilesh Kalara, learned counsel for the applicant and Shri Nirankar Singh, learned counsel for opposite parties. 2. This is an application for transfer of petition under Section 24 of the Code of Civil Procedure seeking transfer of Regular Suit No. 803 of 2005 pending in the court of A.C.M.M. IV, Kanpur Nagar to any competent court at Lucknow. 3. It has been contended by Shri Kalara that the suit for partition being Regular Suit No. 803 of 2005 was filed by the opposite party No. 1 in respect of two properties. One property is situated at Kanpur Nagar while the other is situated at Lucknow. It is further submitted that under Section 16 of the Code of Civil Procedure the suit in respect of immovable property is instituted where the subject matter situates. Section 17 of the Code provides that where the suit to obtain relief in respect of immovable property situates within the jurisdiction of different courts, the suit may be instituted in any court within the local limit of whose jurisdiction any portion of the property situates. Since the property which is the subject matter of the aforesaid partition suit is partly situated at Kanpur Nagar and partly at Lucknow, therefore, the opposite party No. 1 had discretion to file the suit either at Kanpur Nagar or at Lucknow. He as per his own choice filed the suit at Kanpur Nagar. The ground for transfer of the case taken by the applicant is that the opposite party No. 1, namely, Prabha Kant Srivastava resides in U.S.A. and he has given power of attorney to Shri Vinay Tiwari Advocate who is conducting this case on behalf of opposite party No. 1. He, since his appearance is conducting the case as if the case is his own case and tries to prejudice the mind of the Presiding Officer treating it as his personal case. Shri Vinay Tiwari is a practicing lawyer at Kanpur. He as attorney holder preferred a writ petition before the Allahabad High Court being Writ Petition No. 1130 of 2010 to expedite the proceeding of regular suit which was disposed on 8.12.2010 and an order for expeditious disposal of the case was passed. 4. The applicant is a widow who is a resident of Lucknow. He as attorney holder preferred a writ petition before the Allahabad High Court being Writ Petition No. 1130 of 2010 to expedite the proceeding of regular suit which was disposed on 8.12.2010 and an order for expeditious disposal of the case was passed. 4. The applicant is a widow who is a resident of Lucknow. After the death of her husband, she is presently doing teaching job which is the only source of her livelihood. It is very difficult for her to attend the case at Kanpur regularly. She is also suffering from acute arthritis making it more difficult to her to go Kanpur to attend the proceeding of the case. 5. On the aforesaid ground the applicant has sought transfer of the case from Kanpur Nagar to Lucknow. 6. The application has been opposed by the opposite parties on the ground that the Allahabad Bench and the Lucknow Bench of the Allahabad High Court are two Benches which exercise jurisdiction with regard to the area as prescribed. The area of Kanpur Nagar does not fall within the jurisdiction of Lucknow Bench, and therefore, the applicant should approach Allahabad Bench of the High Court for seeking transfer of the case from Kanpur Nagar. He has referred to Section 24 of C.P.C. according to which the Court is empowered to transfer the case from one court to the other court. Under this provision the court may at any stage of the case transfer any suit or appeal or other proceeding pending before it for trial to any court subordinate to it and competent to try or dispose of the same. 7. The submission of learned counsel for the opposite parties is that since the court of Kanpur Nagar is not subordinate of Lucknow Bench of the Allahabad High Court, therefore, this Court cannot exercise power of Section 24 for transfer of the case from Kanpur Nagar to Lucknow. In support of his contention the learned counsel has referred to a recent decision rendered by the Allahabad Bench of the Allahabad High Court in Transfer Application No. 19 of 2014. In this case it has been held that in view of the decision of the Allahabad High Court in the case of Smt. Jyotsan Dixit v. Civil Judge, Kheri and others, the transfer application in respect of a case pending in the court of Lakhimpur Kheri was not maintainable at Allahabad. 8. In this case it has been held that in view of the decision of the Allahabad High Court in the case of Smt. Jyotsan Dixit v. Civil Judge, Kheri and others, the transfer application in respect of a case pending in the court of Lakhimpur Kheri was not maintainable at Allahabad. 8. In the case of Smt. Jyotsan Dixit referred to above, this court while deciding the application for transfer of the case from Lakhimpur Kheri to Varanasi held that the cause of action for the application under Section 24 CPC of the case arose on the initiation of case at Lakhimpur Kheri, therefore, it is only the court at Lucknow which can exercise jurisdiction in respect of the said suit. It was also held that only the Lucknow Bench could transfer the case to any place even outside its prescribed area as the case can be transferred to any place which is even outside its area. 9. In reply to the aforesaid argument Shri Akhilesh Kalara, learned counsel for the applicant has submitted that the word subordinate used in Section 24 of the Code of Civil Procedure refers to the court subordinate to the High Court. Since the Courts at Lucknow are subordinate to the Lucknow Bench of the Allahabad High Court and the case pending at Kanpur Nagar is sought to be transferred at Lucknow, therefore, this Court can exercise its jurisdiction for transfer of the case from Kanpur Nagar to Lucknow. Shri Kalara has relied upon the land mark decision on the subject reported in (1975)2 SCC 671 Sri Nasiruddin v. State Transport Appellate Tribunal.Reliance has also been placed upon the decision reported in AIR 1953 (Alld.) 99 Nem Chand v. The State of U.P. In 1953 judgment it was held that when a transfer application is presented the High Court has power to transfer the case from any subordinate to it to any other court subordinate to it. In the case of Nasiruddin, a Full Bench of this Court while interpreting the United Provinces High Courts (Amalgamation) Order, 1948 has held that the Chief Court of Oudh exercised jurisdiction over the territory within 12 districts. The amalgamation order was passed so that the High Court at Allahabad and Chief Court of Oudh may constitute one High Court. By the amalgamation order Lucknow Bench became the seat in respect of a case arose in area of Oudh. The amalgamation order was passed so that the High Court at Allahabad and Chief Court of Oudh may constitute one High Court. By the amalgamation order Lucknow Bench became the seat in respect of a case arose in area of Oudh. However, the matter of transfer of the case was not the subject matter in this case. 10. A perusal of the record reveals that in this transfer petition the assistance of Shri S.K. Kalia, learned Senior Advocate as well as of the Advocate General of U.P. was also taken. By the order dated 21.7.2015 this Court framed following question for determination. "Whether High Court, Lucknow Bench, Lucknow can transfer the case filed in the court in the district falling within the territorial jurisdiction of the High Court at Allahabad to another court of the district falling within the territorial jurisdiction of High Court, Lucknow Bench." 11. It is not disputed that there is no direct decision on this point. 12. After having gone through the different case laws cited by the learned counsel for the parties on the subject and having considered the submissions made on their behalf, this Court is of the view that since the case sought to be transferred relates to District Kanpur Nagar which falls within the territorial jurisdiction of Allahabad High Court, therefore, Lucknow Bench cannot pass any order in respect of a suit which is pending in a court beyond the jurisdiction of the Lucknow Bench. The order passed in the case of Smt. Jyotsana Dixit and Smt. Payal Agrawal decided by the Allahabad High Court in transfer applications is fully applicable to the facts of this case and it is clear that since the cause of action for transfer of the case arose at Kanpur Nagar, where the regular suit is pending, therefore, this Court cannot exercise jurisdiction for transfer of the case which is beyond the jurisdiction of Lucknow Bench. 13. In view of the above, the point of determination framed by this Court is answered in negative and it is held that in respect of the cases pending beyond the territorial jurisdiction of this Bench cannot be transferred by Lucknow Bench. It can only be transferred by the Allahabad Bench of the Allahabad High Court. 14. In the result transfer application is devoid of merit and is hereby dismissed. It can only be transferred by the Allahabad Bench of the Allahabad High Court. 14. In the result transfer application is devoid of merit and is hereby dismissed. However, it will be open for the applicant to seek remedy for transfer of case before the appropriate Court. Transfer application rejected.