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HIGH COURT OF ALLAHABAD
D.K.Seth
JAGDISH KUMAR
Versus
DISTRICT JUDGE BUDAUN AND QRS
Decided On : 12 July 1997
Civil Misd. Transfer Application No. 95 of 1993
TRANSFER OF SUITS - JURISDICTION - HIGH COURT AND DISTRICT COURT - CONCURRENT JURISDICTION - APPLICANT UNSUCCESSFUL BEFORE DISTRICT COURT - WHETHER PRECLUDED FROM CHALLENGING ORDER - ARTICLE 227 OF THE CONSTITUTION - APPLICANT SUCCESSFUL BEFORE HIGH COURT - AGGRIEVED PARTY - WHETHER CAN AVAIL CONCURRENT JURISDICTION OF DISTRICT JUDGE - APPLICANT APPROACHING HIGH COURT STRAIGHT AWAY - APPLICANT AND OPPOSITE PARTY - WHETHER CAN APPROACH SUPREME COURT UNDER SECTION 25 OF THE CODE - ORDER OF DISTRICT JUDGE - OVERRULED BY IMPLICATION ON PASSING OF ORDER BY HIGH COURT - APPLICATION FOR TRANSFER BEFORE HIGH COURT - MAINTAINABLE.
Fact of the Case:
Three suits were pending before three different courts. The applicant filed an application under Section 24 of the Code of Civil Procedure (CPC) for transfer of these suits to one court. The District Judge dismissed the application. The applicant then filed a fresh application before the High Court.
Finding of the Court:
1. An order of transfer under Section 24 of the CPC is not a judgment within the meaning of Section 115 of the CPC and as such is not subject to revision under Section 115 of the CPC. 2. The jurisdiction conferred under Section 24 of the CPC is concurrent to both the District Judge and the High Court. 3. If a party approaches the High Court for transfer under Section 24 of the CPC and is unsuccessful, the aggrieved party cannot avail the concurrent jurisdiction of the District Judge thereafter. 4. If a party approaches the High Court for transfer under Section 24 of the CPC and is successful, the order of the District Judge stands overruled by implication on passing of the order by the High Court. 5. An application for transfer before the High Court under Section 24 of the CPC is maintainable even if the applicant has been unsuccessful before the District Court.
Issues: 1. Whether an order of transfer under Section 24 of the CPC is a judgment within the meaning of Section 115 of the CPC? 2. Whether the jurisdiction conferred under Section 24 of the CPC is concurrent to both the District Judge and the High Court? 3. Whether a party who is unsuccessful before the District Court in an application for transfer under Section 24 of the CPC is precluded from challenging the order? 4. Whether a party who is successful before the High Court in an application for transfer under Section 24 of the CPC can be challenged by the aggrieved party before the District Judge? 5. Whether an application for transfer before the High Court under Section 24 of the CPC is maintainable even if the applicant has been unsuccessful before the District Court?
Ratio Decidendi: 1. The expression "case decided" used in Section 115 of the CPC has the same implication that has been ascribed to clause 15 of the Letters Patent which prescribes that "an appeal shall. . . . . . . from the, judgment. . . . . . . . . ". The expression judgment used in the clause 15 of the Letters Patent was interpreted to mean that an order where a right or liability of the parties arising out of the action between them is determined. 2. An order under Section 24 of the CPC does not decide any controversy in the suit or action between the parties. It neither determines any right or liability involved in the suit or action between the parties. 3. The jurisdiction conferred under Section 24 of the CPC is concurrent to both the District Judge and the High Court. Inasmuch as it has used the expression which clearly indicates that the power is concurrent to both the District Judge and the High Court. 4. If a party approaches the High Court for transfer under Section 24 of the CPC and is unsuccessful, the aggrieved party cannot avail the concurrent jurisdiction of the District Judge thereafter. Such an interpretation would not be in conformity with the judicial system of hierarchy. 5. If a party approaches the High Court for transfer under Section 24 of the CPC and is successful, the order of the District Judge stands overruled by implication on passing of the order by the High Court.
Final Decision: The application for transfer of suits before the High Court under Section 24 of the CPC was dismissed.
This is an application under Section 24 of Code of Civil Proce dure (hereinafter called as the Code) for transfer of three suits pending before three different courts to one court. In effect, this appears to be an application for consolidation of three cases or in other words simul taneous hearing of all the cases.
2. In order to appreciate the situa tion, it is necessary to refer to certain facts as hereinafter.
3. Suit No. 246 of 1974 was instituted before the learned Munsif, Budaun by Syed Aley Navi, and Room Singh as plain tiffs against Shri Ram Bhasin, Shri Ajab Lal and Shri Kuvarn Hnsain as defen dants. The said suit was pending before the II Additional Munsif, Budaun. In the said suit an injunction was prayed for restraining defendants from creating any obstruction in the possession of the plain tiffs in the suit property and from remov ing any construction therefrom. The suit property was described as the portion in red in the attached plan or map marked I, J, K and L. The other suit being SCC Suit No. 4 of 1986 was pending before the SCC Court presided over by the learned Civil Judge, Budaun. The said suit was filed by Room Singh, Shri Hakim Husain, Smt. Avrok, Smt. Feroz and Shri Aley Navi as plaintiffs against Rakesh Bhasin, Suresh Bhasin, Smt. Ram Sanehi, Jagdish Kumar and Abhay Lal as defendants. In this suit, prayers for ejectment, arrears of rent and damages for illegal occupation were made. The suit property as described seems to differ from the suit property of suit No. 246 of 1974. The third suit has been filed by Rakesh Bhasin, Sir*. Ram Sanehi and Jagdish Kumar as plaintiffs againss the Union of India, the Secretary, Mmltjy of Commerce and the Custodian Enemy Property. The said suit being suit No. 4 of 1986 pending before the learned Civil Judge, Badaun is for mandatory injunc tion directing the respondents to execute the sale deed in favour of the plaintiffs. The suit property described as House No. E/10/70 which appears to be different from the suit property involved in other two suits.
4. In the counter-affidavit a com parative chart has been appended point ing out the difference in respect of the suit property, parties and reliefs claimed in the said three suits. A perusal thereof clearly indicates that the suit properties are not the same or identical. The reliefs sought for are altogether
different. The parties are also not same. It has been mentioned that the hearing of the suit No. 246 of 1974 is over and the judgment has since been reserved. This fact has not been disputed by the learned Counsel for the applicant. Learned Counsel for the applicant has also not disputed the chart appended to the counter-affidavit. No rejoinder af fidavit appears to have been filed against the counter-affidavit. Learned Counsel for the applicant, on the other hand, con tends that the suit property being same and the issues involved being common, all the suits should be transferred to the one and the same court. However, he has fairly concedes that an application under Sec tion 24 of the Code and filed for such purpose before the learned District Judge who by an order dated 8-4-1993 dismissed the said application for transfer but he-has not challenged the said order, instead he has filed fresh application before this court.
5. Learned Counsel for the opposite party, on the other hand, contends that apart from the merit of the case, the ap plication for transfer having been dis missed by a reasoned order by the learned District Judge, the applicant should have challenged the said order of rejection of the earlier application under Section 24 of the Code by the learned District Judge, the present application under Section 24 of the Code is an abuse of process of law and is not maintainable. He also contends that the SCC suit cannot be transferred to any court which do not have the power of Small Causes Court.
6. After having heard learned Coun sel for the parties, it appears that the ap plicant had made a
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