# Amit Pachauri v. Smt. Ram Beti & Ors - **Citation:** (2016) 7 ILRA 331 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-07-13 - **Bench:** Pankaj Mithal - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-pachauri-v-smt-ram-beti-ors-44069 - **Pages:** 4 ## Headnote Application under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of Civil Appeal No. 18 of 2015 (Smt. Ram Beti & Ors. v. Amit Pachauri & Ors.) pending before the Court of Additional District Judge, Court No. 3, Etah, to another competent court within the district. The office objected to the maintainability of the transfer application on the ground that a similar application under Section 24 C.P.C. had earlier been rejected by the District Judge, Etah, relying upon 1998 (1) ARC 305, Jagdish Kumar v. District Judge, Badaun & Ors. CASE LAW DISCUSSED: Jagdish Kumar v. District Judge, Badaun & Ors., 1998 (1) ARC 305 HELD Section 24 C.P.C. - Transfer of Cases - Concurrent Jurisdiction of High Court and District Judge - Maintainability. Section 24 C.P.C. confers concurrent jurisdiction upon the High Court and the District Judge to transfer suits, appeals or proceedings pending before courts subordinate to them. The jurisdiction of one is not to the exclusion of the other. If an application under Section 24 C.P.C. fails before the District Judge, the party is not barred from approaching the High Court under the same provision. An order passed under Section 24 C.P.C. is neither appealable nor revisable, though it may be examined under Article 227 of the Constitution. The decision in Jagdish Kumar does not prohibit filing of a fresh application before the High Court after rejection by the District Judge; rather, it affirms the concurrent jurisdiction. 332 INDIAN LAW REPORTS ALLAHABAD SERIES Therefore, the transfer application before the High Court is maintainable, notwithstanding dismissal of a similar application by the District Judge.On Merits: Mere pendency of appeal without progress is not a ground for transfer. Filing of transfer application does not create a presumption of bias against the Presiding Officer. In absence of specific allegations of prejudice or partiality, no case for transfer is made out. RESULT: Objection of the office regarding maintainability overruled. Transfer Application held maintainable. On merits, the Transfer Application dismissed. Registry directed to send copy of the order to the Stamp Reporting Section for future guidance. ## Text 7 All. Amit Pachauri Vs Smt. Ram Beti & Ors. 331 14. For the aforesaid reasons, this Court finds the action of the assessing authority in reducing the set off which was claimed by the revisionist to be unsustainable. The answer is thus entered in favour of the assessee and against the Department. 15. This revision stands allowed. The assessee shall be entitled to all consequential reliefs as permissible in law. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 13.07.2016 BEFORE THE HON'BLE PANKAJ MITHAL, J. Transfer Application (Civil) No.- 226 Of 2016 Amit Pachauri ...Applicant Versus Smt. Ram Beti & Ors. ...Opposite Parties Counsel for the Applicant: Sri Veer Bhagat Singh Kushwaha, Sri Vijay Prakash Singh Kushwaha PROCEDURE: Application under Section 24 of the Code of Civil Procedure, 1908 seeking transfer of Civil Appeal No. 18 of 2015 (Smt. Ram Beti & Ors. v. Amit Pachauri & Ors.) pending before the Court of Additional District Judge, Court No. 3, Etah, to another competent court within the district. The office objected to the maintainability of the transfer application on the ground that a similar application under Section 24 C.P.C. had earlier been rejected by the District Judge, Etah, relying upon 1998 (1) ARC 305, Jagdish Kumar v. District Judge, Badaun & Ors. CASE LAW DISCUSSED: Jagdish Kumar v. District Judge, Badaun & Ors., 1998 (1) ARC 305 HELD Section 24 C.P.C. - Transfer of Cases - Concurrent Jurisdiction of High Court and District Judge - Maintainability. Section 24 C.P.C. confers concurrent jurisdiction upon the High Court and the District Judge to transfer suits, appeals or proceedings pending before courts subordinate to them. The jurisdiction of one is not to the exclusion of the other. If an application under Section 24 C.P.C. fails before the District Judge, the party is not barred from approaching the High Court under the same provision. An order passed under Section 24 C.P.C. is neither appealable nor revisable, though it may be examined under Article 227 of the Constitution. The decision in Jagdish Kumar does not prohibit filing of a fresh application before the High Court after rejection by the District Judge; rather, it affirms the concurrent jurisdiction. 332 INDIAN LAW REPORTS ALLAHABAD SERIES Therefore, the transfer application before the High Court is maintainable, notwithstanding dismissal of a similar application by the District Judge.On Merits: Mere pendency of appeal without progress is not a ground for transfer. Filing of transfer application does not create a presumption of bias against the Presiding Officer. In absence of specific allegations of prejudice or partiality, no case for transfer is made out. RESULT: Objection of the office regarding maintainability overruled. Transfer Application held maintainable. On merits, the Transfer Application dismissed. Registry directed to send copy of the order to the Stamp Reporting Section for future guidance. (Delivered by Hon'ble Pankaj Mithal, J.) 1. Heard Sri V.B. Singh Kushwaha, learned counsel for the petitioner-applicant. 2. The petitioner-applicant has filed this application under Section 24 C.P.C. for transfer of Civil Appeal No.18 of 2015, Smt. Ram Beti and others Vs. Amit Pachauri and others pending in the Court of Additional District Judge, Court No.3, Etah to some other court of competent jurisdiction within the district itself. 3. The office has reported that the transfer application is not maintainable in view of 1998(1) ARC 305 Jagdish Kumar Vs. District Judge, Badaun and others. 4. The aforesaid objection has been raised probably for the reason that the petitionerapplicant had earlier filed an application under Section 24 C.P.C. before the District Judge, Etah and the same was rejected. 5. Section 24 C.P.C. lays down the general power of transfer and withdrawal of the cases and inter alia provides that the High Court or the District Judge may at any stage transfer any suit, appeal or other proceeding pending before any court subordinate to it for trial or disposal to any court subordinate to it and competent to try or dispose of the same. 6. A plain reading of the aforesaid provision reveals that it confers concurrent power of transfer of cases upon the High Court and the District Judge. 7. The above decision in Jagdish Kumar (supra) lays down that an order passed under Section 24 C.P.C. is neither appealable or revisable. It may, however, be subjected to test, if necessary, under the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India. The jurisdiction conferred under Section 24 C.P.C. is concurrent. The aforesaid jurisdiction can not be interpreted to mean that the jurisdiction of one court is to the exclusion of the other. If the application under Section 24 C.P.C. fails before the District Judge the party may approach the High Court in exercise of concurrent jurisdiction under the same provision and once the High Court passes an order, the order of the District Judge would stand overruled by 7 All. Amit Pachauri Vs Smt. Ram Beti & Ors. 333 implication but this will not be the situation where the party is unsuccessful before the High Court to enable him to go before the District Judge. 8. The legal conclusions of Jagdish Kumar (supra) in short are as under: (1) The High Court and the District Judge has concurrent jurisdiction to transfer cases under Section 24 C.P.C.; (2) The aforesaid jurisdiction conferred upon the two courts is not to the exclusion of the other: (3) If the application under Section 24 C.P.C. fails before the District Judge, the party has an option to move to the High Court under Section 24 C.P.C. itself but if the party is unsuccessful in the High Court it cannot move a fresh application before the District Judge; and (4) The order passed under Section 24 C.P.C. is neither appealable nor revisable. It may be subjected to test, if necessary, under Article 227 of the Constitution of India. 9. The aforesaid decision nowhere lays down that once a party has approached the District Judge under Section 24 C.P.C. it cannot file a fresh application before the High Court, rather it specifically lays down that the jurisdiction conferrned under Section 24 C.P.C. is concurrent and that a party filing an application under Section 24 before the District Judge may approach the High Court under the same provision. 10. In view of the aforesaid facts and circumstances, there is no bar in moving an application under Section 24 C.P.C. before the High Court for transfer of a case by the same party after lossing in getting it transferred by the District Judge. 11. The petitioner-applicant is not challenging the order of the District Judge rejecting application under Section 24 C.P.C. 12. Accordingly, the objection raised by the office in this regard stands overruled and the transfer application is held to be maintainable notwithstanding that a similar transfer application had been dismissed by the District Judge. 13. Heard learned counsel for the petitioner-applicant on merits of the matter. 14. The petitioner-applicant wants transfer of appeal only for the reason that it had remained pending for long before the appellate court with no progress. It appears that the appeal could not be heard on merit as all the parties were not duly represented. The parties are now represented and the matter can be heard. Therefore, there is no justification for transferring the appeal to another court. 334 INDIAN LAW REPORTS ALLAHABAD SERIES 15. Learned counsel for the petitioner-applicant submits that since he had applied for transfer of the proceedings, the Presiding Officer of the court concerned would adopt a partisan approach and act prejudicially against him. 16. The submission has no substance as in the course of litigation such situations do arise but the judicial officers always rise to the occasion and decide the matter on merits in accordance with law notwithstanding the filing of application for transfer of the case from their court. Moreover, the petitioner-applicant has not levelled any allegation against the Presiding Officer for getting the case transferred. Therefore, there is no question of any of partisan approach by the court concerned. 17. The transfer application, as such, is devoid of merit and is dismissed. 18. The Registry is directed to send a copy of this order to the Stamp Reporting Section for future guidance in submitting reports on transfer applications filed under Section 24 C.P.C. ---------- APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 27.07.2016 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. First Appeal No.- 248 Of 1977 Kishan Chand & Ors. ...Appellants Versus Mitthan Lal & Ors. ...Respondents Counsel for Appellants: A.N. Bhargava Counsel for Respondents: S.M.H. Zaidi, Bharat Ji Agarwal, Neeraj Agarwal, S.M. Haider 1. Succession Act - Probate/Letters of Administration - Will - Suspicious Circumstances - Duty of Propounder - Failure to Explain Change of Earlier Registered Will - Effect. Where a testator had executed a registered Will (Ex. 2) approximately eight months prior to the execution of the disputed Will (Ex. 3) in favour of both his cousin brothers - the father of the appellants and the contesting respondent - and the disputed unregistered Will sought to supersede the earlier registered Will entirely in favour of the appellants to the exclusion of the contesting respondent, it was incumbent upon the propounders of the later Will to explain the circumstances which led the testator to execute such a Will. In the present case, while the disputed Will attributed the exclusion of the appellants' father to his mental illness and incapacity, it contained no explanation whatsoever for the disinheritance of the contesting respondent who had been a beneficiary under the prior registered Will. Held: The failure of the propounders to furnish any explanation for such a radical departure from the earlier Will gives rise to suspicious circumstances