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2021 DIGILAW 934 (RAJ)

Vijaylakshmi v. Mukul

2021-05-27

I.MAHANTY, VINIT KUMAR MATHUR

body2021
JUDGMENT : 1. The questions referred for adjudication before us in the present reference application read as under:- "(a) Whether the power under Section 24 CPC can be exercised by the High Court 'on the application of any of the parties', without issuing notice to the other party/parties? (b) Whether on an application made by wife under Section 24 CPC for transfer of matrimonial proceedings, irrespective of the circumstances indicated in the application, suo moto power can be exercised by the High Court, as a rule so as to obviate the requirement of issuing notices to the other party/parties?" 2. Learned Single Bench of this Court vide Order dated 20.01.2021 referred the matter before the Larger Bench for adjudication on the ground that in the case of Smt. Gayatri Devi Vs. Shri Raghuveer Singh (S.B. Civil Transfer Application No. 112/2015) decided on 28.08.2019, a Coordinate Bench of this Court while relying upon the judgment rendered in the case of Bhanu Kumari Vs. Jitendra Singh & Ors. reported in 2007 (2) RLW (Raj.) 1077, decided the applications preferred under Section 24 of C.P.C. without issuing notice to the other side. Learned Single Bench while disagreeing with the view taken by the Coordinate Bench in the cases of Smt. Gayatri Devi (supra) and Bhanu Kumari (supra), referred the matter before the Larger Bench for deciding the above-mentioned questions. 3. We have heard learned counsel Mr. Vinay Jain. 4. Mr. Jain, learned counsel has argued that the view expressed in the case of Smt. Gayatri Devi (supra) is not sustainable. He has submitted that the case of Smt. Gayatri Devi (supra) was decided in the light of the judgment rendered in the case of Bhanu Kumari (supra) but the said judgment has since been reversed by the Hon'ble Supreme Court vide Judgment dated 11.04.2008 passed in the case of Jitendra Singh Vs. Bhanu Kumari & Ors. reported in AIR 2008 SC 2987 . He has further submitted that even on a plain reading of Section 24 of C.P.C., it is clear that if an application for transfer of suit/case is preferred by any of the parties then, notice is required to be issued and an opportunity of hearing is desired but if the transfer of the suit/case is on its own motion by the High Court or the District Court then, issuance of such notice is not mandatory. He, therefore, submitted that in view of the authoritative pronouncement of the Hon'ble Supreme Court in the case of Jitendra Singh (supra), if an application for transfer under Section 24 of C.P.C. has been preferred by any of the parties, notice is required to be issued and opportunity of hearing is necessary to be given to the other party. 5. We have considered the submissions made at the Bar and gone through the pleadings as well as judgments referred in the present case. 6. For the purpose of deciding the controversy, it will be beneficial to reproduce Section 24 of C.P.C., which reads 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) re-transfer 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. (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. A bare reading of Section 24 shows that if an application is preferred by any of the parties for transfer of a suit/case then, notice to the other party is required to be issued and an opportunity of hearing is necessary to be given but if the same is on its own motion by the High Court or the District Judge, the order can be passed without issuing any notice to the parties. Section 24 ibid mandates that if an application is preferred by one party then, for transfer of a case/suit, the other party is required to be heard and if the other party is required to be heard, it necessarily contemplates the issuance of notice. Therefore, the view taken by the learned Single Bench in the case of Smt. Gayatri Devi (supra) does not appear to be on sound principle of law and issuance of notice is necessary and dictate of the provisions of law. 8. As far as the transfer of case/suit 'on its own motion' is concerned, Section 24 of C.P.C. mandates that although, no notice is required but it is desirable that the reasons for transfer without notice should be made clear and explicit in the order. If it is an administrative exigency then, it should be reflected in the order that for what reasons, the case is being transferred by the Court on its own motion. 9. We further observe that though, while deciding the case of Smt. Gayatri Devi (supra), reliance on the judgment rendered in the case of Bhanu Kumari (supra) has been placed but in the case of Bhanu Kumari (supra) also, there were no observations with respect to the fact that there was no requirement of issuing notice on an application preferred under Section 24 of C.P.C. before exercising the powers for transfer of proceedings from one court to another. Moreover, the judgment rendered in the case of Bhanu Kumari (supra) has been reversed by the Hon'ble Supreme Court in the case of Jitendra Singh (supra), wherein the Hon'ble Supreme Court reaffirmed the fact that notice is required to be issued on an application preferred under Section 24 of C.P.C. by any of the parties but issuance of notice may be dispensed with and the order of transfer may be passed suo moto for administrative reasons. The Hon'ble Supreme Court in Para 9 of the judgment has held as under:- "9. The purpose of Section 24 CPC is merely to confer on the Court a discretionary power. A court acting under Section 24 CPC may or may not in its judicial discretion transfer a particular case. Section 24 does not prescribe any ground for ordering the transfer of a case. In certain cases it may be ordered suo motu and it may be done for administrative reasons. But when an application for transfer is made by a party, the court is required to issue notice to the other side and hear the party before directing transfer. To put it differently, the Court must act judicially in ordering a transfer on the application of a party. In the instant case the reason which has weighed with the High Court for directing transfer does not really make out a case for transfer." 10. Thus, we are of the view that if one of the parties has preferred an application for transfer then, the other side is required to be heard to meet the contentions raised in the transfer application and since hearing the other side is necessary then, notice becomes sine qua non. 11. In view of the discussions made above, we answer the questions referred, as under:- A. the issuance of notice to the other party/parties on an application preferred under Section 24 of C.P.C. is necessary and the same cannot be decided ex-parte without hearing the other side as Section 24 ibid itself clearly mandates issuance of notice on filing of the application for transfer of the case by one of the parties. B. If an application under Section 24 of C.P.C. is preferred by one of the parties, may be wife, for transfer of the matrimonial proceedings, the issuance of notice to the other party is necessary and suo moto powers under Section 24 ibid cannot be exercised by the High Court except for the reasons mentioned in Section 24 of C.P.C. but not on an application preferred by any of the parties including the wife. 12. The reference is answered accordingly and the matter be listed before the learned Single Bench for decision on merits.