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2020 DIGILAW 1268 (MP)

Bharti Kushwah v. Pradeep Singh

2020-12-11

SANJAY DWIVEDI

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Heard. 1. This application has been filed under Section 24 of the Code of Civil Procedure for transferring the case bearing No.50/2018 filed under the Hindu Marriage Act, from the Court of Principal Judge, Family Court Dhar, District Dhar to Family Court Sagar, District Sagar. 2. Learned counsel for the non-applicant has raised an objection regarding maintainability of this application as the Court of Dhar does not fall within the territorial jurisdiction of this Bench. 3. The counsel for the applicant has placed reliance upon a decision of Full Bench reported in AIR 1977 MP 116 parties being Abdul Taiyab Abbasbhai Malik and others v. The Union of India and others and submitted that in paragraph 204 of the said judgment, the full Bench has observed that in the Principal Bench, the Court has jurisdiction to hear the cases of all over the State, therefore, this application is maintainable before this Court. 4. Per contra, Shri Solanki appearing for the non-applicant has placed reliance upon a decision passed by this Court reported in 2012(4) MPLJ 635 parties being Shailey vs. Pankaj Kumar Madne and submitted that the High Court has dealt with identical issue and rejected the application of transfer of the case from Bhopal to Gwalior saying that the Court at Bhopal falls within the territorial jurisdiction of Jabalpur Bench, therefore, at Gwalior Bench the application is not maintainable merely because the transfer is being sought from Bhopal Court to Gwalior Court. 5. After perusal of the application and also the judgment on which the applicant has placed reliance, I am of the opinion that the said judgment is not applicable in the present facts and circumstances because in the case of Abdul Taiyab (supra), the Full Bench has considered the scope of Section 51 of the States Reorganisation Act, although as per the majority view, the Court has observed as under:- ““High Court” means the Chief Justice and such other Judges of the High Court as the President may from time to time appoint. “High Court of Madhya Pradesh” only means the Chief Justice and such other Judges as may be appointed by the President to the said High Court. The place of sitting may be one or more, may be principal or otherwise; but it does not mean that the High Court means only the High Court sitting at the principal seat. “High Court of Madhya Pradesh” only means the Chief Justice and such other Judges as may be appointed by the President to the said High Court. The place of sitting may be one or more, may be principal or otherwise; but it does not mean that the High Court means only the High Court sitting at the principal seat. The place of sitting is provided for the convenience of the litigating public and therefore sitting at different places they may hear cases from the respective districts only. Section 51 of the States Reorganisation Act itself contemplated the sitting of the High Court at more than one place. It is, therefore, clear that in view of the scheme of the States Reorganisation Act and in view of the context it could not be doubted that the provisions of the States Reorganisation Act contemplated the sitting of the High Court at different places with jurisdiction exercised by the Judges while sitting at those places in respect of areas allotted to those places for that purpose. The President’s Notifications dated 28-11-1968 confers exclusive territorial jurisdiction on the respective Benches and it is not in contravention of Art. 214 of the Constitution or Item 3 in List II of the Seventh Schedule of the Constitution. As regards the power of the Chief Justice, it cannot be doubted that the Chief Justice has power to fix rosters and assign cases for hearing before appropriate Benches. The Chief Justice has to exercise those powers consciously and with due regard to the norms for the exercise thereof. When the Chief Justice exercises powers, they are always exercised consciously. At the same time, it is unnecessarily to mention that he will exercise such powers only after the norms are followed.” 6. The paragraph on which the applicant has placed reliance is a part of minority view, therefore, it would not help the applicant. However, the judgment relied upon by the counsel for the non-applicant is directly on the point involved in the present case. The paragraph on which the applicant has placed reliance is a part of minority view, therefore, it would not help the applicant. However, the judgment relied upon by the counsel for the non-applicant is directly on the point involved in the present case. The High Court in case of Shailey (supra) has also relied upon a judgment reported in 2004(4) MPLJ 310 parties being Laxmi Nagdev vs. Jitendra Kumar Nagdev, in which, the Court has although observed that the High Court is competent to transfer pending suit in a subordinate Court to a Court subordinate to another High Court and also considered Sections 23 and 24 of the Code of Civil Procedure and it is appropriate to reproduce the provisions of said Sections, which are as under:- “23. To what Court application lies.– (1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court. (2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court. (3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the court in which the suit is brought is situate. 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 any 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 Causes 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.” 7. The aforesaid provisions clearly indicate that the application for transfer of a case lies to the Court having jurisdiction over the subordinate Court where the suit is pending. Accordingly, the present applicant has to file an application for transfer of case at Indore Bench as the suit is pending in its subordinate Court i.e. District Dhar. As such, the application for transferring the case from Dhar District to Sagar District is not maintainable unless the permission is sought from the Chief Justice. Therefore, this application without any hesitation can be held to be not maintainable before this Court because the Court of Dhar comes within the territorial jurisdiction of Indore Bench and not within the Jabalpur Bench. Accordingly, this application is dismissed as not maintainable. 8. However, applicant is at liberty to move an application for getting his case transferred, if he so desires, before the appropriate Bench.