Point of Law:
Where there has been an appeal against a decree passed ex-parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex-parte decree.

JUDGMENT :

SIDDHARTHA VARMA, J.

1. This application under Article 227 of the Constitution of India has been filed against the order dated 4.10.2019 by which the District Judge Ghaziabad had refused to interfere in the Transfer Application filed by the petitioner. A further prayer in the application is that the Civil Appeal No. 8 of 2019, Balakram and Others vs. Jaikaran Singh and Others, be Transferred from the Court of 4th Additional District Judge, Ghaziabad, to any other Court of the judgeship of Ghaziabad.

2. Even before notices could be issued to the respondents, the learned Additional Chief Standing Counsel Sri. Neeraj Upadhyay opposed the filing of the instant application under Article 227 of the Constitution of India and, therefore, before entering into the merits of the case, the Counsel were heard with regard to the maintainability of the application under Article 227 of the Constitution of India.

3. Learned counsel for the petitioner relied upon Sunita Devi vs. Ram Kripal and Another, (2015) 2 AWC 1543 and submitted that an application when was rejected by the District Court under Section 24 of the C.P.C. a further application under Section 24 of the C.P.C. was not maintainable before the High Court. Learned counsel relied upon the provisions of Section 24 of the C.P.C. and submitted that when the provisions of Section 24 of the C.P.C. itself stated that an Application for Transfer or withdrawal of the Suit could be filed before the High Court “or” the District Court then the provision had to be construed strictly and relying upon Dadi Jagannadhan vs. Jammulu Ramulu and Others, (2001) 7 SCC 71 submitted that when only one Court could be approached because of the word “or” between the word “High Court' and “District Court” then a party could approach either the High Court or the District Court and it could not approach the High Court after approaching the District Court under the same jurisdiction. He submitted that the High Court under its supervisory powers could look into the judgment of the District Court but it could not entertain a fresh Transfer Application when once it had been rejected by the District Court.

4. Learned counsel submitted that legislature chose its word very carefully and the Court could not add words to a statute and, therefore, he submitted that when it was provided that either the High Court or the District Court could transfer a Suit then, when, once the application was rejected by the District Court then the same application could not be filed before the High Court.

5. Learned Additional Chief Standing Counsel, however, in reply, submitted that even though the order passed by the learned District Judge was final it did not decide any controversy between the parties when it terminated the proceeding with regard to the Transfer Application. No litigation between the parties was brought to an end. Learned Standing Counsel submitted that an order in a Transfer Application was virtually an administrative order passed on the judicial side.

6. Learned Standing Counsel also submitted that when Section 24 of the C.P.C. used the words “High Court or the District Court” then it did not mean that when the application was filed before the District Court then the filing of the application before the High Court was excluded. Learned Standing Counsel relied upon Sections 438 and 439 of the Cr.P.C. and submitted that an anticipatory bail or a bail application could be filed in both the District Court and the High Court, one after the other. Learned Standing Counsel submitted that if the provisions of Order IX Rule 13 of the CPC were perused then it would become clear that legislature intended that after an Appeal had been disposed of against a decree alleged to have been passed ex-parte then no application lay under the Order IX Rule 13 of the CPC for setting aside the ex-parte decree and, therefore, he submitted that unless the filing of the application under Section 24 was excluded by any provision of Section