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2022 DIGILAW 756 (ALL)

Shivpal Singh v. Dafedar Singh (deceased)

2022-05-12

J.J.MUNIR

body2022
JUDGMENT : [J.J. Munir, J.] 1. Heard Mr. Satish Kumar Pandey, learned Counsel for the petitioners and Mr. Yogendra Kumar Srivastava, learned Counsel appearing for the respondents via video conferencing. 2. This is a petition under Article 227 of the Constitution, seeking to set aside the order dated 26.10.2021 passed by the District Judge, Mainpuri in Transfer Application No. 85 of 2021, praying for a transfer of Civil Appeal No. 40 of 2016, Shivpal Singh and others v. Dafedar Singh, pending before the Ist Additional District Judge, Mainpuri to the Court of the District Judge. The appellants in the civil appeal pending before the District Court appear to be defendants of Suit No. 939 of 1996, decided by the Civil Judge (Junior Division), Mainpuri vide judgment and decree dated 20.10.2016. They are the petitioners here, whereas respondent Nos. 1 to 13 are the plaintiff-respondents to the present petition as well as the appeal before the District Court. The petitioners' application for transfer has been dismissed by the learned District Judge of Mainpuri vide order dated 26.10.2021. 3. Before this Court could examine the merits of the order passed by the District Judge dated 26.10.2021, refusing the petitioners' plea for transfer of the appeal, Mr. Yogendra Kumar Srivastava, learned Counsel appearing for respondents took an objection that in view of the decision of this Court in Jaikaran Singh and others v. Balakram and others, 2020(4) ADJ 543 , this petition is not maintainable. Instead, a transfer application would lie to this Court under Section 24 of the Code of Civil Procedure, 1908 (for short ''the Code'') after rejection of the petitioners' transfer application by the District Judge under the aforesaid provision. 4. Mr. Satish Kumar Pandey, learned Counsel for the petitioners, on the other hand, has countered the objection as to the maintainability of this petition under Article 227 of the Constitution. He submits that once a transfer application under Section 24 of the Code is rejected by the District Judge, asking for transfer of a suit or appeal from one Court to another in the same judgeship, the only remedy is a petition under Article 227 of the Constitution and not a transfer application made further to this Court under Section 24 of the Code. He has placed reliance upon the decision of this Court in Smt. Sunita Devi v. Ram Kripal and another, 2014 ADJ Online 0366 and another decision of this Court in Indian Oil Corporation Ltd. through its Principal Secretary v. Ram Swaroop Bajaj (deceased) through his legal heir Km. Aparna Bajaj, 2016(4) ADJ 724 . 5. This Court has examined the matter, and there appears to be difference of opinion on the point between learned Single Judges of this Court. In Jaikaran Singh (supra), Siddharth Varma, J. held that against an order of the District Court declining a transfer application under Section 24 of the Code, a petition under Article 227 of the Constitution does not lie. The remedy of the unsuccessful applicant for transfer is to invoke the concurrent jurisdiction of this Court under Section 24 of the Code. His Lordship in Jaikaran Singh has opined : 10. Having heard the learned counsel for the parties, I am of the view that an Application under Article 227 of the Constitution of India did not lie against an order passed under Section 24 of the CPC by the District Court. The High Court can always independently look into the grounds of a Transfer Application afresh. The jurisdiction conferred on both - the High Court and the District was concurrent and was independently available to both the Courts. 11. However, the parties should approach the District Court first and thereafter the High Court as judicial property demand that judicial hierarchy be maintained. It was, therefore, always in the interest of justice that the powers of the District Court be invoked initially and, thereafter, those of the High Court. Certainly an order passed on a Transfer Application does not bring to an end the litigation between the parties and, therefore, as has been held in Asrumati Debi v. Kumar Rupendra Deb Raikot (supra) as an order passed under Section 24 of the C.P.C. is not a judgement the High Court cannot exercise its supervisory jurisdiction. Thus, once when the doors of the District Court have been knocked the filing of a Transfer Application before the High Court is neither prohibited nor excluded. A bare reading of the Section 24 of the C.P.C. would clarify the point in issue and, therefore, Section 24 of the C.P.C. is being reproduced here as under: 24. Thus, once when the doors of the District Court have been knocked the filing of a Transfer Application before the High Court is neither prohibited nor excluded. A bare reading of the Section 24 of the C.P.C. would clarify the point in issue and, therefore, Section 24 of the C.P.C. is being reproduced here 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) 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 an 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 Cases 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. 12. In contrast, the provisions of Order IX Rule 13 of the C.P.C. may also be looked into which clearly put a bar on the filing of an application under Order IX Rule 13 of the C.P.C. once the parties had got an Appeal decided by a higher Court. 12. In contrast, the provisions of Order IX Rule 13 of the C.P.C. may also be looked into which clearly put a bar on the filing of an application under Order IX Rule 13 of the C.P.C. once the parties had got an Appeal decided by a higher Court. The provisions of Order IX Rule 13 of the C.P.C. are also being reproduced here as under:- 13. Setting aside decree ex parte against defendant.-In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. [Explanation.-Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree.] 13. Under such circumstances, to say that the legislature desired the filing of only one application, either before the High Court or before the District Court would be an erroneous interpretation. 14. Under such circumstances, to say that the legislature desired the filing of only one application, either before the High Court or before the District Court would be an erroneous interpretation. 14. Therefore, relying on Asrumati Debi v. Kumar Rupendra Deb Raikot, I hold that since the High Court had not to sit in appeal or under its supervisory jurisdiction over the order passed by the District Court while rejecting a Transfer Application, and in fact it had to independently decide the Transfer Application afresh, the Application under Article 227 of the Constitution of India was not maintainable. 15. The application, therefore, under Article 227 of the Constitution of India is dismissed as being not maintainable. 6. Much earlier than the decision in Jaikaran Singh, Surya Prakash Kesarwani, J. appears to have taken a contrary view, holding that no power has been conferred on the High Court to set aside orders made by the District Court on a transfer application under Section 24 of the Code and that, therefore, against an order passed by the District Judge allowing a transfer application, further transfer application to this Court would not lie under Section 24 of the Code. His Lordship has followed an earlier decision of this Court to the same effect in Smt. Sunita Devi. His Lordship in Indian Oil Corporation Ltd. (supra) held : 5. From perusal of the aforesaid provisions, it is apparently clear that no power has been conferred on the High Court to set aside the order passed by the District Court on an application under Section 24 of C.P.C. 6. In the case of Dr. Ajay Chaturwedi v. Smt. Shobhana, a Division Bench of this Court has considered the nature of power under Section 24 of C.P.C. and held that transfer of proceedings of suit, appeal etc. can be directed by the High Court/District Court on an application as also suo moto. This power of transfer is not an exercise of original jurisdiction, it is not an exercise of appellate jurisdiction nor it is an exercise of revisional jurisdiction. The power of transfer of suit and other proceedings is an exercise of power of superintendence. The legal position has also been explained by the Madras High Court in the case of P. Karuppiah Ambalam v. Ayya Nadar. The power of transfer of suit and other proceedings is an exercise of power of superintendence. The legal position has also been explained by the Madras High Court in the case of P. Karuppiah Ambalam v. Ayya Nadar. The power conferred under Section 24 of C.P.C. gives power to two Superior Courts, viz., the High Court or the District Court to withdraw any suit, appeal or other proceedings pending in any Court subordinate to it and either try and 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. Section 24 confers a very wide power, and it is intended to enable the two Superior Courts mentioned in it to exercise their general power of superintendent over Subordinate Courts, or in the interest of justice. 7. In the case of Sunita Devi (supra), this Court considered the scope of Section 24 of C.P.C. and held as under: ''8. The expression ''the High Court or the District Court'' clearly indicates that the power of the District Judge and that of the High Court under Section 24 of the C.P.C. Is mutually exclusive. The word ''or'' in the expression ''the High Court or. The District Court'' in sub-section (1) is used disjunctively and not conjunctively which means that a person can move either the High Court or the District Court and not both the Courts in succession one after the other. Thus, from the aforesaid expression it is crystal clear that the application under Section 24 of the C.P.C. can either be moved before the District Judge or the High Court and cannot be moved simultaneously or one after the other. Thus, the remedy can be availed either by approaching the District Judge or directly to the High Court. Since the jurisdiction of the District Judge and the High Court is concurrent under Section 24 of the C.P.C, so if one party has approached the District Court, that party would be precluded from approaching the High Court under Section 24 of the C.P.C. The High Court under Section 24 of the C.P.C. cannot sit over the order of the District Judge as a Revisional Court or as an Appellate Court. 10. From the above provision of the Cr. 10. From the above provision of the Cr. P.C. it is clear that if any transfer application is rejected by the Sessions Judge the applicant can come to the High Court for getting the case transferred from one Court to the other in the same judgeship on the same ground but there is no such provision in the C.P.C. So, in the absence of such provision no party can approach the High Court after rejection of his application by the District Judge. In this reference, the ruling of the Hon'ble High Court rendered in Dadi Jagannadham v. Jammulu Ramula, may be referred to. In this ruling, it has been held that the Court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result. 11. So, in the absence of any specific provision in the C.P.C. a person cannot approach the High Court under Section 24 of the C.P.C. or any other provision of the C.P.C. to get his case transferred from one Court to another in the same judgeship after rejection of his transfer application by the District Judge on the same ground. But he is not remediless. He may approach the High Court for this purpose by means of filing the writ petition under Article 226 and 227 of the Constitution of India and may invoke the High Court's power of superintendence'' 9. In view of the aforesaid, I find that transfer application filed by the applicant is not maintainable. Consequently, the transfer application deserves to be dismissed. 7. It must be remarked that the decision of this Court in Smt. Sunita Devi was rendered in a case where the applicant before this Court had moved a transfer application under Section 24 of the Code, after rejection of his application seeking transfer of the suit within the same judgeship by the District Judge. It was in that context that Mohd. Tahir, J. held that a further transfer application under Section 24 CPC would not lie, for the reasons indicated in Paragraph Nos. 10 and 11 of the report. In Jaikaran Singh, the two earlier decisions of this Court in Smt. Sunita Devi and Indian Oil Corporation Ltd. were not brought to His Lordship's notice. 8. Tahir, J. held that a further transfer application under Section 24 CPC would not lie, for the reasons indicated in Paragraph Nos. 10 and 11 of the report. In Jaikaran Singh, the two earlier decisions of this Court in Smt. Sunita Devi and Indian Oil Corporation Ltd. were not brought to His Lordship's notice. 8. This issue appears to have been considered by a Division Bench of the Calcutta High Court in Gora Chandas v. Dipali Das, 1976 (2) Cal LJ 380 and an earlier decision of a Division Bench of the same Court in Hari Nath Biswas and another v. Devendra Nath Biswas, (1910) 11 CLJ 218, where it was held that against refusal of an application under Section 24 of the Code by the District Judge, a fresh application for transfer to the High Court under Section 24 of the Code is maintainable. Their Lordships of the Division Bench in Gora Chandas (supra) followed a learned Single Judge of the Patna High Court in Sheo Nandan Lal and others v. Mangal Chand, 1927 SCC OnLine Pat 71. 9. To my understanding, the jurisdiction under Section 24 of the Code is concurrent and nature of the power exercised under Section 24 is essentially administrative. It is administrative in the sense that it does not decide rights of parties in the sense that it is done in a lis before the Court. All that is decided in an application under Section 24 of the Code is the Court that would hear a suit or an appeal or other proceedings governed by the Code of Civil Procedure, 1908. The resultant of a determination under Section 24 of the Code is nothing more than the fact whether Court 'A' 'B' or 'C' would hear and decide a lis between parties. To transfer a case within a judgeship, the District Judge has concurrent jurisdiction with the High Court. If the District Judge declines to transfer a case from a particular Court or grants a transfer, the High Court, being a Court of superior jurisdiction, can be approached by the unsuccessful party before the District Judge or the party who feels that the transfer has been wrongly granted, through an original application under Section 24 of the Code. If the District Judge declines to transfer a case from a particular Court or grants a transfer, the High Court, being a Court of superior jurisdiction, can be approached by the unsuccessful party before the District Judge or the party who feels that the transfer has been wrongly granted, through an original application under Section 24 of the Code. The High Court, being a Court of superior jurisdiction, above the District Judge, can take an ''administrative decision'' so to speak, to grant a transfer, where the District Judge has refused, or to re-transfer a case where the District Judge has granted it to the same Court or some other Court. In passing any of these orders, the High Court would not be deciding any case in the sense of a lis or undoing an order of the District Judge in the sense that an Appellate Court or Revisional Court does, where a subordinate Court passes a judicial order, deciding a lis inter partes. 10. The view that I take draws much for its inspiration from the decision of this Court in Jagdish Kumar v. The District Judge, Budaun and others, 1998 (33) ALR 400. In the case last mentioned, the District Judge had dismissed a transfer application under Section 24 of the Code. Upon an application under the section last mentioned being made to this Court, after the District Judge had rejected that prayer, an objection about maintainability of a second or a further application under Section 24 of the Code on the same grounds was raised before this Court by the learned Counsel for the respondents. This Court formulated two questions, which are detailed in Paragraph No. 7 of the report in Jagdish Kumar (supra) which reads : 7. The contention of the counsel for the opposite party that a second application under Section 24 of the Code on the self same ground after its rejection is not maintainable is disputed by the counsel for the applicant. From the arguments advanced by the respective counsel on this point, the following questions are formulated.-(1) whether the order rejecting or allowing an application under Section 24 of the Code is a case decided within the meaning of Section 115 of the Code and is thereby open to revision or not? From the arguments advanced by the respective counsel on this point, the following questions are formulated.-(1) whether the order rejecting or allowing an application under Section 24 of the Code is a case decided within the meaning of Section 115 of the Code and is thereby open to revision or not? (2) whether the jurisdiction of the High Court and the District Court under Section 24 of the Code is concurrent to the extent that after a decision by one Court on such application a second application on the self same cause of action to the other Court is competent. 11. Though the answer to the first question formulated in Jagdish Kumar also has bearing on the issue involved here, but it is the second question that squarely covers the controversy. In answering the second question in Jagdish Kumar, D.K. Seth, J. held : 18. Now turning to the second point it may be observed that Section 24 of the Code has used an expression which clearly indicates that the power is concurrent to both the District Judge and the High Court. Inasmuch as it has used the expression that ''High Court or the District Court may (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 or 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''. 19. The jurisdiction conferred under Section 24 of the Code is concurrent does not conceive of any scope of doubt. But whether the concurrent jurisdiction means that both the jurisdiction can be availed together or one after the other. The concurrence means both the Courts having jurisdiction, the parties are free to approach one or the other. Whenever concurrent jurisdiction has been conferred on the High Court and the District Court, it is provided that it one of the forum is approached, the party would be precluded from approaching the other forum. The concurrence means both the Courts having jurisdiction, the parties are free to approach one or the other. Whenever concurrent jurisdiction has been conferred on the High Court and the District Court, it is provided that it one of the forum is approached, the party would be precluded from approaching the other forum. Inasmuch as in the West Bengal amendment of Section 115 of the Code by which Section 115A has been inserted. Under the said provisions both High Court and District Court have been empowered to entertain an application under Section 115 of the Code. Under sub-sections (3) and (4) thereof it has been provided that if either of the Court is approached, no further revision shall be entertained between the same parties either by the High Court or the District Court as the case may be. Similar provision has also been incorporated in Section 397 of the Cr.P.C. where in sub-section (3) similar exclusion of jurisdiction by the High Court or Sessions Court having concurrent jurisdiction has been provided. In the absence of specific prohibition or exclusion of jurisdiction, Section 24 of the Code cannot be interpreted to mean that the jurisdiction of the one Court is to the exclusion of the other. But a situation may arise where the High Court having been unsuccessfully approached, a party may approach to the District Court thereafter. If such a situation is permitted, it would work out a judicial anarchy. After having unsuccessful before the District Court, a party may approach the High Court. Such position is in conformity with the system of judicial hierarchy. If the party approaches the High Court then it cannot come back to the District Court. Such an interpretation would not be in conformity with the judicial system of hierarchy. 20. But in case a party seeking transfer, is unsuccessful in the District Court whether he is precluded from challenging the said order. The answer would be available by resorting to Article 227 of the Constitution. Therefore, it cannot be said that he is precluded from challenging such an order if sufficient ground is made out for invoking such jurisdiction. Similarly if an applicant before the High Court succeeds, the aggrieved party cannot avail the concurrent jurisdiction of the District Judge thereafter on the same analogy due to which successful candidate is so prevented. Therefore, it cannot be said that he is precluded from challenging such an order if sufficient ground is made out for invoking such jurisdiction. Similarly if an applicant before the High Court succeeds, the aggrieved party cannot avail the concurrent jurisdiction of the District Judge thereafter on the same analogy due to which successful candidate is so prevented. The jurisdiction may not be mutually excluded but once the High Court is approached, the jurisdiction of the District Court is excluded. 21. In the case of Gorachand Das v. Bipal Das, 1976 (2) Cal LJ 380, it was held that even after the District Court refused the prayer for transfer under Section 24 of the Code, the High Court may be moved for transfer. 22. Thus the out-come of the above discussion indicates that when an application for transfer before the District Court fails, the party applying may approach the concurrent jurisdiction of the High Court under the same provision but the party opposing though may apply for retransfer before the District Judge but cannot challenge the said order under Section 115 of the Code though, however, on the principle on which Article 227 of the Constitution can be exercised he may invoke the power of superintendence conferred upon the High Court by the Constitution under Article 227 of the Constitution thereof. But if the party approaches the concurrent jurisdiction of the High Court straightaway then the applicant and opposite party - both may approach the Supreme Court under Section 25 of the Code, if aggrieved by the order of the High Court. But once the High Court passes an order under Section 24 on an application of an unsuccessful applicant before the District Judge, the order of the District Judge stands overruled by implication on passing of the order by the High Court. As such in the facts and circumstances of the present case, the application under Section 24 of the Code before this Court is maintainable. 12. The decision in Jagdish Kumar was followed in Ishtiyak Ahmad v. Smt. Meena and others, 2016(11) ADJ 801 , where it was observed : 5. The remedy under Article 227 of the Constitution of India is an extraordinarily remedy of discretionary nature and it cannot be ordinarily permitted to be invoked if the party has any alternative statutory remedy for getting the desired relief. 6. The remedy under Article 227 of the Constitution of India is an extraordinarily remedy of discretionary nature and it cannot be ordinarily permitted to be invoked if the party has any alternative statutory remedy for getting the desired relief. 6. The jurisdiction under Section 24, C.P.C. is concurrent jurisdiction conferred both upon the District Judge and the High Court. Therefore, if an application under Section 24, C.P.C. has been rejected, the party aggrieved may move a fresh application before the High Court under Section 24, C.P.C. itself as has also been laid down by the aforesaid decision. 13. While the decision in Jaikaran Singh did not notice the earlier decisions in Smt. Sunita Devi and Indian Oil Corporation Ltd., taking a contrary view, it is equally true that in Smt. Sunita Devi and Indian Oil Corporation Ltd. the very well reasoned decision in Jagdish Kumar was not brought to their Lordships' notice. 14. For the reasons I have already indicated, I am inclined to the view taken in Jagdish Kumar and Jaikaran Singh, but, bearing in mind the requirements of judicial discipline and the fact that there are contradictory views expressed by learned Judges of this Court sitting singly, I am of opinion that the question involved ought to be authoritatively decided by a larger Bench. 15. In the circumstances, the following question is referred for consideration by a larger Bench: Whether against an order made by the District Court, refusing a transfer application under Section 24 of the Code of Civil Procedure, 1908 an application for transfer on the same grounds by the same party is maintainable before the High Court under Section 24 CPC? 16. Until decision of the case by larger Bench, further proceedings in Civil Appeal No. 40 of 2016, pending before the Ist Additional Civil Judge, Mainpuri shall remain stayed. 17. Let papers of this case be laid by the Registry before His Lordship the Hon'ble the Chief Justice for appropriate orders, at the earliest.