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A.S. De Mello and anr. Vs. New Victoria Mills Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All17; 90Ind.Cas.287
AppellantA.S. De Mello and anr.
RespondentNew Victoria Mills Co. Ltd.
Excerpt:
- - mewa ram air 1921 all 1 was also cited on behalf of the respondents, but that case is clearly distinguishable.1. this is a petition in revision against an order of the learned district judge of cawnpore transferring a certain suit pending in the court of one subordinate judge of cawnpore to the court of another subordinate judge at the same place. the complaint is that this order was passed at the instance of one of the parties without issuing a notice to the other.2. a preliminary objection has been taken to the effect that no revision lay and the case of farid ahmad v. dulari bibi (1884) 6 all 233 has been cited as an authority. on behalf of the applicants the case of fatima begam v. imdad ali air 1920 all 249, has been cited. for the respondents it has been urged that the earlier case is a two judges case and the later case is a single judge case and therefore the earlier case is of greater.....
Judgment:

1. This is a petition in revision against an order of the learned District Judge of Cawnpore transferring a certain suit pending in the Court of one Subordinate Judge of Cawnpore to the Court of another Subordinate Judge at the same place. The complaint is that this order was passed at the instance of one of the parties without issuing a notice to the other.

2. A preliminary objection has been taken to the effect that no revision lay and the case of Farid Ahmad v. Dulari Bibi (1884) 6 All 233 has been cited as an authority. On behalf of the applicants the case of Fatima Begam v. Imdad Ali AIR 1920 All 249, has been cited. For the respondents it has been urged that the earlier case is a two Judges case and the later case is a single Judge case and therefore the earlier case is of greater weight than the later case. We have examined the case in Farid Ahmad v. Dulari Bibi (1884) 6 All 233, but have been unfortunately (with respect) unable to appreciate the grounds of the decision. The learned Judges appear to say that the ultimate decree was an appealable one and therefore no revision lay. But the decree that could be passed by the second Court would practically have nothing to do with the question of transfer. It is true that a question of jurisdiction might be raised after the transfer in the second Court. But if that be so, the anomalous position would arise, viz., the subordidate Court would be sitting to decide whether the superior Court which made the order of transfer was right or not in making it. We prefer to follow the latter case, we being also in agreement with it. The Full Bench case of Buddhoo Lal v. Mewa Ram AIR 1921 All 1 was also cited on behalf of the respondents, but that case is clearly distinguishable. Here the District Judge so far as the 'case' was before him decided it altogether. This distinguishes the present case before the Full Bench.

3. We are of opinion that a revision does lie on account of the provisions to be found in 01. (c) of Section 115 of the Civil P.C., the learned Judge having acted illegally or with material irregularity in the exercise of his jurisdiction. We may also say that the learned Judge could not acquire jurisdiction to make the order of transfer at the instance of a party without giving notice to the other side: see Lachmi v. Balmakund AIR 1924 PC 198.

4. The preliminary objection fails and the application succeeds. We set aside the order of the learned District Judge and remand the petition of the respondents for transfer to him for disposal after issuing notice to the opposite party, viz., the petitioners in this Court. Costs in this Court to abide the result, and will include counsel's fees on the higher scale.


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