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IN THE HIGH COURT OF ALLAHABAD
S. D. AGARWALA
SHAKUNTALA DEVI - Appellant
Versus
AMIR HASAN - Respondents
CIV. REVN. 311 Of 1982
Decided On : 09/27/1985
TRANSFER OF SUIT - JURISDICTION OF ADDITIONAL DISTRICT JUDGE - S. 24(5) OF THE CIVIL PROCEDURE CODE, 1908 - INTERPRETATION - POWER OF DISTRICT JUDGE TO TRANSFER APPLICATION UNDER S. 24 TO ADDITIONAL DISTRICT JUDGE - SCOPE AND PURPOSE OF S. 24(3) OF THE CIVIL PROCEDURE CODE, 1908.
Fact of the Case:
The revisionists filed an application under S. 24(5) of the Civil Procedure Code, 1908 (CPC) for transfer of a suit from the Court of Additional Munsif to the Court of Judge Small Causes on the ground that the suit was cognisable by the Small Causes Court but was wrongly filed on the regular side. The 1st Additional District Judge rejected the application, observing that the plaintiffs-revisionists could move the Court concerned to withdraw the suit with permission to file the same in the Court of competent jurisdiction.
Finding of the Court:
The court held that the Additional District Judge had the power to pass an order on the application under S. 24 of the CPC and that the order was not without jurisdiction. The court further held that the District Judge had the discretion to transfer a suit or a proceeding from a Court which had no jurisdiction to try it under S. 24(5) of the CPC and that it was not mandatory.
Issues: 1. Whether the Additional District Judge had the jurisdiction to decide the application under S. 24(5) of the CPC. 2. Whether the District Judge had the power to transfer the application under S. 24 of the CPC to the Additional District Judge.
Ratio Decidendi: 1. The court interpreted S. 24 of the CPC and the provisions of the Bengal, Agra and Assam Civil Courts Act, 1887, and found that there was no provision prohibiting the District Judge from transferring an application under S 24 of the CPC to an Additional District Judge. 2. The court held that the purpose of S. 24(3) of the CPC was to clarify that even where a matter was pending before the Additional and Assistant Judge, the District Judge would have the general power of transfer and withdrawal as the Additional and Assistant Judge in such a circumstance would be treated as subordinate to the District Judge.
Final Decision: The court dismissed the revision petition, holding that the Additional District Judge had the power to pass an order on the application under S. 24 of the CPC and that the order was not without jurisdiction. The court also held that the District Judge had the discretion to transfer a suit or a proceeding from a Court which had no jurisdiction to try it under S. 24(5) of the CPC and that it was not mandatory.
( 1 ) THIS is a Civil Revision filed under S. 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 S. 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 S. 24 (5) of C. P. C. for transfer on the ground that the suit which the revisionists had filed was in fact cognisable 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 S. 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 a 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-sec. (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 S. 2 sub-cl. (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
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