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Smt. Shakuntala Devi and ors. Vs. Amir Hasan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 311 of 1982
Judge
Reported inAIR1986All234
ActsCode of Civil Procedure (CPC) , 1908 - Sections 24 and 24(5); Bengal Agra and Assam Civil Court Act, 1887 - Sections 8
AppellantSmt. Shakuntala Devi and ors.
RespondentAmir Hasan and ors.
Appellant AdvocateA.K. Yog, Adv.
Respondent AdvocateS.A. Gilani, Adv.
DispositionPetition dismissed
Excerpt:
civil - transfer of suit - section 24 of code of civil procedure 1908 and section 8 of agra and assam civil court act, 1887 - district judge has discretionary power to transfer a suit or a proceeding from a court which has no jurisdiction to try it. - .....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 (4) the court trying any suit transferred or withdrawn under this section from a court of small causes shall, for the purposes of such suit, be deemed to be a court of small causes.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.' 5. the above section gives power of transfer and withdrawal to the high court or the district court as the case may be. the words used here are 'district court'. the word 'district' has been defined in section 2 sub-section (4) as follows : --'(4) 'district' means the local limit of the jurisdiction of a principal civil court of original jurisdiction (hereinafter called a 'district court'), and includes the local limits of.....
Judgment:
ORDER

S.D. Agarwala, J.

1. This is a Civil Revision filed under Section 115 of the Civil P.C. directed against the order dt. 29-3-1982 passed by the 1st Additional District Judge, Ghaziabad rejecting the application moved by the revisionists under Section 24(5) of the C.P.C. for transfer of suit No. 171 of 1978 from the Court of Additional Munsif, Hapur to the Court of Judge Small Causes, Hapur.

2. The revisionists had made an application under Section 24(5) of C.P.C. for transfer on the ground that the suit which the revisionists had filed was in fact cognizable by the Small Causes Court but was wrongly filed on the regular side. The 1st Additional District Judge rejected the application with the observation that it will be open to the plaintiffs-revisionists to move the Court concerned to withdraw the suit with the permission to file the same in the Court of competent jurisdiction.

3. Learned counsel for the revisionists has argued that the application under Section 24 of the C.P.C. can only be decided by the District Judge and it could not have been decided by the 1st Additional District Judge and as such the impugned order is wholly without jurisdiction.

4. Section 24 of the C.P.C. is as follows : --

'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 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.'

5. The above section gives power of transfer and withdrawal to the High Court or the District Court as the case may be. The words used here are 'District Court'. The word 'district' has been defined in Section 2 Sub-section (4) as follows : --

'(4) 'district' means the local limit of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a 'District Court'), and includes the local limits of the ordinary original civil jurisdiction of a High . Court';

6. From the above definition, it is clear that the District Court is the principal Civil Court of original jurisdiction. The District Judge is the principal Court of Civil Jurisdiction in each district.

7. Section 8 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act XII of 1887) provides as follows : --

'8. Additional Judges.--(1) Where the business pending before any District Judge requires the aid of Additional Judges for its speedy, disposal the State Government may, having consulted the High Court appoint such Additional Judges as may be requisite.

(2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge.'

8. The above Section 8 empowers the State Government to appoint Additional Judges as required for speedy disposal of the business pending before any District Judge. Sub-clause (2) of Section 8 further specifically provides that the Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them and in the discharge of those functions they exercise the same power as the District Judge.

9. In view of this provision, it is clear that whenever any matter is transferred to the Additional District Judges, then the Additional District Judges are exercising the same power as that of a District Judge.,

10. On a reading of Section 24 of the C.P.C and the provisions of Bengal, Agra and Assam Civil Courts Act, 1887, 1 do not find anywhere any provision prohibiting the District Judge from transferring an application under Section 24 of the C.P.C. to an Additional District Judge. The District Judge, consequently, under his power can transfer any application moved before him under Section 24 of the C.P.C. to the Court of Additional District Judge for disposal in accordance with law.

11. Learned counsel for the revisionists, however, has placed specific reliance on Sub-section (3) of Section 24 of C.P.C. His argument is that since the Courts of Additional and Assistant Judges are deemed to be subordinate to the District Judge, this by implication means that the District Judge cannot transfer an application under Section 24 to the Court of Additional and Assistant Judges. In my opinion, this argument is fallacious. The purpose of Sub- clause (3) of Section 24 of the C.P.C. is to clarify that even where a matter is pending before the Additional and Assistant Judge, then the District Judge will have the general power of transfer and withdrawal as the Additional and Assistant Judge in such a circumstance shall be treated as subordinate to the District Judge. This is only to avoid the moving of every transfer application before the High Court where the matter is pending before the Additional and Assistant Judge. This provision has only a limited purpose and cannot be construed to mean that a prohibition has been engrafted in the Civil P.C. prohibiting the District Judge from transferring the application under Section 24 to an Additional District Judge. In my opinion, the contention raised by the learned counsel for the revisionists is not substantiated. The Additional District Judge had the power to pass an order on the application under Section 24 of the Civil P.C. The order is not without jurisdiction.

12. Under Section 24 Sub-clause (5) a discretion has been given to the District Judge to transfer a suit or a proceeding from a Court which has no jurisdiction to try it. It is not mandatory. In the instant case the Additional District Judge has made an observation that the revisionists can move an application in the Court concerned for withdrawal of the suit with permission to file the same in the Court of competent jurisdiction. I do not find any error in the observation made by the Additional District Judge.

13. In the result, I do not find any merit in this revision. It is accordingly dismissed but in the circumstances of the case, the parties are directed to bear their own costs.


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