Hon’ble Dr. Devendra Kumar Arora, J.—Heard Mr. Brijesh Kumar Saxena, learned counsel for the petitioners, learned Standing Counsel and Mr. V.K. Singh, Senior Advocate, assisted by Mr. S.M. Royekwar, appearing on behalf of the contesting opposite party No. 1-Banaras Hindu University and perused the record.

2. Through the instant writ petition under Article 226/227 of the Constitution of India, petitioners have challenged the order dated 28.8.2000 contained in Annexure No. 11 to the writ petition and the order dated 28.10.1999 contained in Annexure No. 8 to the writ petition, passed by the District Judge, Civil Courts, Lucknow. Petitioners have also inter alia prayed for issuance of writ in the nature of mandamus directing the District Judge, Civil Courts, Lucknow to proceed with the case from the stage it had been transferred to it and not to hold a de novo trial.

3. Shorn of unnecessary details the facts of the case are as under :

One Shri D.C. Agrawal and Shri Harish Chandra Agarwal filed a suit under Section 92 of the Code of Civil Procedure [hereafter referred to as “C.P.C.”] against Banaras Hindu University, Varanasi (hereinafter referred to as “BHU”) in the Court of Civil Judge (Senior Division), Mohanlalganj, Lucknow on 17.2.1972, which was registered as Regular Suit No. 25 of 1972, for removal of BHU from the office of trustee of Waqf Shah Banarasi Das and for appointment of new trustee in his place. In the aforesaid suit, notice was issued and in response thereof, defendant-BHU appeared and filed its written statement in the month of December, 1972. The Civil Judge, Mohanlalganj, Lucknow, vide judgment and decree dated 9.12.1978, decided the aforesaid suit ex parte and directed for removal of the defendant-BHU from office of trusteeship of the waqf Shah Banarasi Das. The defendant-BHU was further directed to deliver possession to the newly appointed trustee. However, it was provided that the scheme of management of the trust properties would be settled in final decree. Lastly, the Court directed for preparation of preliminary decree accordingly.

4. According to petitioners, on 29.5.1979, the decree-holder/petitioners had preferred an application for preparation of the final decree by annexing a scheme for management of the trust property, to which objection was filed by the the judgment debtor/B.H.U. alongwith their own scheme for the management of the trust property. Subsequently, one of the plaintiff, namely, D.C. Agarwal died and as such, the name of his legal heir, namely, Shri Madhusudan Das Agarwal (petitioner No. 1 herein) was substituted in the aforesaid proceeding. Thereafter, Shri Madhusudan Das Agarwal preferred an application under Section 24 (5) C.P.C., which was registered as Misc. Case No. 367-C/1995, for transfer of Regular Suit No. 25 of 1972 from the Court of Civil Judge, Mohanlalganj (Senior Division), Lucknow to the Court of District Judge, Lucknow. The learned District Judge, vide order dated 7.3.1996, while observing that the Court has power to transfer a case, which had no jurisdiction to entertain or decide a case, rejected the objection raised by the defendant-B.H.U. However, it was observed that the power to transfer the suit is discretionary and should be exercised after considering the entire facts and circumstances. Accordingly, hearing of the case was adjourned to decide whether this discretion should be exercised in the present case. Ultimately, the aforesaid application i.e. Misc. Case No. 367-C/1995 was dismissed for want of prosecution on 25.1.1997.

5. According to the petitioner, on 25.9.1990, an objection under Section 47 C.P.C. was filed by BHU, which was registered as Misc. Case No. 90-C of 1990. This objection was rejected by the Civil Judge (Mohanlalganj), Lucknow vide order dated 24.11.1990. Thereafter, the petitioner No. 1-Madhusudan Das Agarwal had preferred second application under Section 24 (5) C.P.C. for transferring further proceedings of Regular Suit No. 25 of 19