# Babu Singh & Ors v. Raj Bahadur Singh & Ors

- **Citation:** (2022) 11 ILRA 627
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-10
- **Case number:** Transfer Application (Civil) No. 121 of 2021
- **Bench:** Rajesh Bindal, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/babu-singh-ors-v-raj-bahadur-singh-ors-47903
- **Pages:** 19

## Headnote

Mr.
Jaideep
Narayan
Mathur,
Senior
Advocate (Amicus Curiae) with Mr. Sanjay
Sarin, Additional Chief Standing Counsel
and Ms. Aishwarya Mathur, Advocate

A. Civil Law - Code of Civil Procedure,
1908-Section 24, 115-transfer-referencewhether fresh application u/s 24 CPC
would be maintainable or the order would
be revisable u/s 115 CPC and Article 227
of the Constitution of India-Since the
order passed by the District Judge has
been held to be a 'case decided' and the
proceeding under section 24 CPC 'other
proceeding' within the meaning of section
115 CPC, finality would attach to the
District Judge's order once that Court is
approached by a party seeking transfer
within the District Judge's jurisdiction-The
party aggrieved by the orders passed by
the District Judge would have to move to
628 INDIAN LAW REPORTS ALLAHABAD SERIES
the High Court under section 115 CPC to
set aside the order-Since orders passed on
the transfer application is a 'case decided'
and disposes of 'other proceeding' within
the meaning of section 115 CPC, the party
aggrieved by the District Judge's order
cannot invoke the jurisdiction of this
Court afresh u/s 24 CPC to set at naught
the District Judge's determination without
applying under section 115 CPC to set
aside that order-The question is answered
in the affirmative that order passed by the
District Judge u/s 24 CPC is revisable u/s
115 CPC.(Para 38 to 43)

B. Whether another application u/s 24
CPC by the same applicant based on the
same cause would be maintainable or notthe question stands answered in negativeIt is held that another application u/s 24
CPC would not be maintainable before this
Court
without
challenging
the
order
passed by the District Judge, on the
application disposed of by the district
judge under section 24 CPC through a
revision under section 115 CPC-Normally,
the order of the district judge passed on
an application u/s 24 CPC being revisable,
the constitutional remedy under Article
227, though not barred, may not be
invoked on the sound principle of the
availability
of
an
equally
efficacious
statutory
alternative
remedy
under
section 115 CPC.(Para 42,43)

The reference is answered accordingly. (E-6)

List of Cases cited:

## Text

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11 All. Babu Singh & Ors. Vs. Raj Bahadur Singh & Ors.
627
welfare of the child is not secured in the
custody of natural father. In the instant
matter, the respondent nos.3 and 4 has
failed to substantiate that the petitioner no.2
(father) is not a suitable guardian.

46. It has also been noticed that it is not
a case that the petitioner no.2 (father) did not
take all care and caution after the birth of the
corpus and it is due to misfortune, an accident
took place, whereafter naturally the petitioner
no.2 went into trauma but thereafter he is
continuously trying to get the custody of his
child.

47. It is decipherable from perusal of
the record appended with the writ petition
that the conduct and behaviour of the
respondent nos. 3 and 4, so far as access of
the child to his father is concerned, prima
facie seems to be unexpected. It is not
understandable that why the grand maternal
parents are so adamant, not to give the
custody of the child to his father as he does
not seem to be unfit to be guardian, thus this
is a best example of improper custody.

48. Resultantly, it is directed that the
respondent nos. 3 and 4 shall hand over the
custody of the child to the petitioner no.2, i.e.
Deepak Kumar Tripathi (father) on 20th
October, 2022 at his residence. Both the
parties shall act upon in the interest of the
child and and shall co-operate with each
other.

49. Further looking into the well
being of the child and making the child
comfortable, the respondent nos.3 and 4
shall have access to the child for a period of
four months, at the residence of the
petitioner no.2, in between 10 A.M. to 5
P.M. on every Sunday of each month and
the
petitioner
no.2
shall
make
it
comfortable.

50. Accordingly, the Habeas Corpus
writ petition is allowed.

51. No order as to costs.
----------
(2022) 11 ILRA 627
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.11.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Transfer Application (Civil) No. 121 of 2021
With
Transfer Application (Civil) No. 123 of 2021 &
No. 124 of 2021

Babu Singh & Ors. ...Applicants
Versus
Raj Bahadur Singh & Ors.
 ...Opposite Parties

Counsel for the Applicants:
Mr. Ashish Tripathi, Advocate

Counsel for the Opposite Parties:
Mr.
Jaideep
Narayan
Mathur,
Senior
Advocate (Amicus Curiae) with Mr. Sanjay
Sarin, Additional Chief Standing Counsel
and Ms. Aishwarya Mathur, Advocate

A. Civil Law - Code of Civil Procedure,
1908-Section 24, 115-transfer-referencewhether fresh application u/s 24 CPC
would be maintainable or the order would
be revisable u/s 115 CPC and Article 227
of the Constitution of India-Since the
order passed by the District Judge has
been held to be a 'case decided' and the
proceeding under section 24 CPC 'other
proceeding' within the meaning of section
115 CPC, finality would attach to the
District Judge's order once that Court is
approached by a party seeking transfer
within the District Judge's jurisdiction-The
party aggrieved by the orders passed by
the District Judge would have to move to
628 INDIAN LAW REPORTS ALLAHABAD SERIES
the High Court under section 115 CPC to
set aside the order-Since orders passed on
the transfer application is a 'case decided'
and disposes of 'other proceeding' within
the meaning of section 115 CPC, the party
aggrieved by the District Judge's order
cannot invoke the jurisdiction of this
Court afresh u/s 24 CPC to set at naught
the District Judge's determination without
applying under section 115 CPC to set
aside that order-The question is answered
in the affirmative that order passed by the
District Judge u/s 24 CPC is revisable u/s
115 CPC.(Para 38 to 43)

B. Whether another application u/s 24
CPC by the same applicant based on the
same cause would be maintainable or notthe question stands answered in negativeIt is held that another application u/s 24
CPC would not be maintainable before this
Court
without
challenging
the
order
passed by the District Judge, on the
application disposed of by the district
judge under section 24 CPC through a
revision under section 115 CPC-Normally,
the order of the district judge passed on
an application u/s 24 CPC being revisable,
the constitutional remedy under Article
227, though not barred, may not be
invoked on the sound principle of the
availability
of
an
equally
efficacious
statutory
alternative
remedy
under
section 115 CPC.(Para 42,43)

The reference is answered accordingly. (E-6)

List of Cases cited:

1. Jagdish Kumar Vs The District Judge, Budaun
(1998) 1 ARC 305

2. Paras Jain Vs. Izhar Ahmad & ors.. (2014) 11
ADJ 281

3. Kulwinder Kaur Vs Kandi Friends Edu. Trust &
ors. (2008) 3 SCC 659

4. Prem Bakshi & ors. Vs Dharam Dev & ors.
(2002) 2 SCC 2

5. Sadhna Lodh Vs NICL & ors. (2003) SC 1561
6. Ram Dhani & ors. Vs Raja Ram & ors. (2011)
AIR All 121

7. Ishtiyak Ahmad Vs Smt. Meena & ors. (2016)
11 ADJ 801

8. Amit Pachauri Vs Smt. Ram Beti T.A. (Civil)
No. 226 of 2016

9. Jaikaran Singh & ors. Vs Balakram & ors.
(2020) 4 ADJ 543 All

10. Gorachand Das Vs Dipali Das (1976) 2 Cal
LJ 380

11. Sunita Devi Vs Ram Kripal & anr (2015) 2
AWC 1543

12. IOCL Vs Ram Swaroop Bajaj T.A. (Civil) No.
34 of 2016

13. Ariamma Sachariah Vs Rose Elizabeth Kurian
C.M.C. No. 94 of 2000

14. Sebastian Vs R. Prabhakaran & ors. T.A.
{Civil Misc. Ptn. (MD)} No. 19 of 2011 {
M.P.(MD) No. 1 of 2011}

15. M.V. Ganesh Vs M.L. Vasudevamurthy & ors.
(2003) AIR Kar. 39

16. Munnangi Ramkrishna Rao Vs Vanakuru
Venkata Siva Ramakrishna Prasad & ors. T.A.
{Civil Misc. Ptn. (MD)} No. 492 of 2002

17. Durga Devi & anr. Vs Vijay Kumar Poddar &
anr. (2010) SCC OnLine Pat 1996

18. Johra Bi & ors. Vs Jageshwar & ors. (2010)
1 MPLJ

19. Jagdish Narain Tandon & ors. Vs Onkar Nath
Tandon (2017) 6 ADJ 707
(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. On a reference made by the learned
Single Judge vide order dated December
10, 2021 to a larger Bench and constitution
thereof by Hon'ble the Chief Justice, on
administrative side, for consideration of the
11 All. Babu Singh & Ors. Vs. Raj Bahadur Singh & Ors.
629
following questions, the matter has been
placed before us :

"(i) Whether the order passed by
District judge under Section 24 CPC is
revisable under Section 115 CPC as
applicable in the State of U.P.?

(ii) Whether another application
under Section 24 CPC by the same
applicant based on the same cause would
be maintainable before the High Court,
without challenging an order of the District
Judge which has also been passed under
Section 24 CPC under Section 115 CPC or
Article 227 of the Constitution of India, as
the case may be?

(iii) Whether pronouncements of
this Court in the case of Sunit Devi and
Indian Oil Corporation (supra) lay down
the law correctly on the subject matter in
issue or it is the decision by a Co-ordinate
Benches in the case of Jagdish Kumar
and
Amit
Pachauri
(supra)
which
understand and lay down the law correctly
on the issues aforesaid?"

Transfer Application (Civil) No.-121
of 2021 :-

2. It is a case in which the applicants
filed an application under Section 24 of the
CPC1 in the Court of District Judge, Unnao
seeking transfer of Regular Suit No. 182 of
1996 (Babu Singh and others vs. Raj
Bahadur Singh) from the Court of Civil
Judge, Junior Division, Safipur, DistrictUnnao to any other Court of Civil Judge,
Junior Division, Unnao. The ground for
seeking such transfer was that the husband
of applicant no. 1/1, who is an Advocate, is
pursuing their case and on each and every
date he has to go to Tehsil Safipur, which is
situated at a distance of more than 30 km
from Unnao. Hence, it would be convenient
for him to pursue the case, if the same is
transferred to Unnao. When the application
was rejected by the learned District Judge
vide order dated September 20, 2021 on the
ground that the property in question in the
suit is situated in Safipur, District-Unnao,
therefore, the case cannot transferred, being
aggrieved, the applicants filed the present
application under Section 24 CPC before
this Court seeking the relief as sought for
before the Court below.

Transfer Applications (Civil) No.-
123 & 124 of 2021 :-

3. In these cases, transfer of Regular
Suit No. 2791 of 1996 (Babu Singh and
others vs. Raj Bahadur Singh) and Regular
Suit No. 367 of 2018 (Shivji Virajman
Mandir through Shivnath Singh vs. Reena
Singh and others) was sought respectively
from the Court of Civil Judge, Junior
Division, Safipur, District-Unnao to any
other Court of Civil Judge, Junior Division,
Unnao has been sought, on the same
ground as taken in seeking transfer of
Regular Suit No. 182 of 1996, by filing
applications under Section 24 CPC. These
applications were rejected by the learned
District Judge vide order dated September
20, 2021. However, setting aside of the
order dated September 20, 2021 passed by
the District Judge has not been sought in
both these applications filed under Section
24 CPC before this Court.

4. One of the issues which arose
before the learned Single Judge was that in
the event the applicant had already
approached the Court below under Section
24 CPC for transfer of suit and an order
was
passed
therein
rejecting
the
application, whether there was any remedy
available against such an order under
Section 115 CPC or under Article 227 of
the Constitution of India. The other issue
630 INDIAN LAW REPORTS ALLAHABAD SERIES
was as to whether the order passed by the
District Judge under Section 24 CPC is to
be challenged either by filing a revision
under Section 115 CPC assuming the same
to be maintainable or under Section 227 of
the Constitution of India or the applicant
could straightway file an independent
application under Section 24 CPC before
the High Court seeking such transfer
without challenging the order of the
District Judge.

5. Owing to contrary decisions and
difference of opinion on the aforesaid issue,
the learned Single Judge has referred the
questions, as quoted in the first paragraph
of this order, for consideration by a larger
Bench.

6. The learned Counsel for the
applicants would say in tune with the
decisions in Jagdish Kumar v. The
District Judge, Budaun and Paras Jain v.
Izhar Ahmad and others that the order
passed by the District Judge on a transfer
application, rejecting it, is not a 'case
decided' within the meaning of Section 115
CPC, since no rights of parties involved in
the suit are decided, either finally or as an
interlocutory measure. Hence, a revision
under Section 115 CPC is not maintainable.

7. To this submission, the learned
Amicus
Curiae
submitted
that
the
expression 'case decided' employed in
Section 115 CPC is not necessarily
restricted in its application to rights that
constitute the lis. The 'case decided' may
well be something not directely related to
the suit, such as proceedings for restoration
under Order IX CPC. No doubt, such
proceedings would have bearing of some
kind on the event in the suit, but not in the
terms of a decision on the lis involved, or a
part thereof and as it involves adjudication
thus revision would be a remedy.

8. Heard learned counsel for the
parties and perused the paper book.

9. To appreciate the arguments raised
by learned counsel for the parties with
reference to interpretation of Sections 24
and 115 of CPC and Article 227 of the
Constitution
of
India,
we
deem
it
appropriate
to
reproduce
the
same
hereunder :

"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
or 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-section (1), the Court which 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,-
11 All. Babu Singh & Ors. Vs. Raj Bahadur Singh & Ors.
631

(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.
x
 x
 x x

115. Revision-(1) A superior
court may revise an order passed in a case
decided in an original suit or other
proceeding by a subordinate court where
no appeal lies against the order and where
the subordinate court has-

(a) exercised a jurisdiction not
vested in it by law; or

(b)
failed
to
exercise
a
jurisdiction so vested; or

(c) acted in the exercise of its
jurisdiction illegally or with material
irregularity,

(2) A revision application under
sub-section (1), when filed in the High
Court, shall contain a certificate on the
first page of such application, below the
title of the case, to the effect that no
revision in the case lies to the district
court but lies only to the High Court
either because of valuation or because the
order sought to be revised was passed by
the district court.

(3) The superior court shall not,
under this section, vary or reverse any
order made except where,-

(i) the order, if it had been made
in favour of the party applying for
revision, would have finally disposed of
the suit or other proceeding; or

(ii) the order, if allowed to stand,
would occasion a failure of justice or cause
irreparable injury to the party against
whom it is made.

(4) A revision shall not operate as
a stay of suit or other proceeding before the
court except where such suit or other
proceeding is stayed by the superior court.

Explanation I-In this section,-

(i) the expression ''superior court'
means-

(a) the district court, where the
valuation of a case decided by a court
subordinate to it does not exceed twenty
five lakh rupees.

(b) the High Court, where the
order sought to be revised was passed in a
case decided by the district court or where
the value of the original suit or other
proceedings in a case decided by a court
subordinate to the district court exceed five
lakh rupees;

(ii)
the
expression
''order'
includes an order deciding an issue in any
original suit or other proceedings.

Explanation II.-The provisions of
this section shall also be applicable to
orders
passed,
before
or
after
the
commencement of this section, in original
suits or other proceedings instituted before
such commencement."
x
 x x
x

227. Power of superintendence
over all courts by the High Court.-(1)
Every
High
Court
shall
have
superintendence
over
all
courts
and
tribunals throughout the territories in
relation to which it exercises jurisdiction.

(2) Without prejudice to the
generality of the foregoing provision, the
High Court may --

(a) call for returns from such
courts;

(b) make and issue general rules
and prescribe forms for regulating the
632 INDIAN LAW REPORTS ALLAHABAD SERIES
practice and proceedings of such courts;
and

(c) prescribe forms in which
books, entries and accounts shall be kept by
the officers of any such courts.

(3) The High Court may also
settle tables of fees to be allowed to the
sheriff and all clerks and officers of such
courts and to attorneys, advocates and
pleaders practising therein:
Provided that any rules made, forms
prescribed or tables settled under clause (2)
or clause
(3) shall not be inconsistent
with the provision of any law for the time
being in force, and shall require the
previous approval of the Governor.

(4) Nothing in this article shall be
deemed to confer on a High Court powers
of superintendence over any court or
tribunal constituted by or under any law
relating to the Armed Forces."

10. The power to be exercised under
Section 24 CPC is both administrative and
judicial. The administrative power is
exercised by the competent authority in
routine for allocation of cases amongst
different Courts subordinate to it or having
concurrent jurisdiction with power of
allocation of cases generally. No issue is
raised thereof generally unless someone
files an application seeking transfer of his
case to some other court. This application
again can be either on administrative side
or judicial side. The issue which is
pending for consideration before this
Court is regarding the application filed by
the litigant under Section 24 CPC on
judicial side. If such an application is
filed, the Court concerned is required to
consider the same in terms of the
parameters settled therefor. An application
filed by a party to the litigation under
Section 24 CPC can either be accepted or
rejected.

PRINCIPLES OF TRANSFER OF
CASES

11. The principles with respect to the
transfer of case under Section 24 CPC have
been dealt with by Hon'ble the Supreme
Court in Kulwinder Kaur vs. Kandi
Friends Education Trust and others.
Relevant paragraphs 13, 14 and 17 of
aforesaid judgment are reproduced below :

"13. Having considered rival
contentions of the parties and having gone
through the proceedings of the case, we are
of the view that the impugned order
deserves to be set aside. So far as the power
of transfer is concerned, Section 24 of the
Code empowers a High Court or a District
Court to transfer inter alia any suit, appeal
or other proceeding pending before it or in
any Court subordinate to it to any other
Court for trial and disposal. The said
provision confers comprehensive power on
the Court to transfer suits, appeals or other
proceedings ''at any stage' either on an
application by any party or suo motu.

14. Although the discretionary
power of transfer of cases cannot be
imprisoned within a strait-jacket of any
cast-iron formula unanimously applicable
to all situations, it cannot be gainsaid that
the power to transfer a case must be
exercised with due care, caution and
circumspection. Reading Sections 24 and
25 of the Code together and keeping in
view various judicial pronouncements,
certain broad propositions as to what may
constitute a ground for transfer have been
laid down by Courts. They are balance of
convenience or inconvenience to plaintiff
or defendant or witnesses; convenience or
inconvenience of a particular place of trial
having regard to the nature of evidence on
the points involved in the suit; issues raised
by the parties; reasonable apprehension in
11 All. Babu Singh & Ors. Vs. Raj Bahadur Singh & Ors.
633
the mind of the litigant that he might not
get justice in the court in which the suit is
pending; important questions of law
involved or a considerable section of public
interest in the litigation; ''interest of justice;
demanding for transfer of suit, appeal or
other proceeding, etc. Above are some of
the instances which are germane in
considering the question of transfer of a
suit, appeal or other proceeding. They are,
however, illustrative in nature and by no
means be treated as exhaustive. If on the
above or other relevant considerations, the
Court feels that the plaintiff or the
defendant is not likely to have a ''fair trial'
in the Court from which he seeks to
transfer a case, it is not only the power, but
the duty of the Court to make such order.
x
x
x
x

17.
..............It
is
true
that
normally while making an order of transfer,
the Court may not enter into merits of the
matter as it may affect the final outcome of
the proceedings or cause prejudice to one
or the other side. At the same time,
however, an order of transfer must reflect
application of mind by the court and the
circumstances which weighed in taking the
action.............."

SCOPE OF SECTION 115 CPC

12. The scope of Section 115 CPC
was also considered by Hon'ble the
Supreme Court in Prem Bakshi and
others vs. Dharam Dev and others
wherein it has been held as under :-

"6. The proviso to Sub-section (1)
of Section 115 puts a restriction on the
powers of the High Court inasmuch as the
High Court shall not, under this section
vary or reverse any order made or any
order deciding a issue, in course of a suit or
other proceedings except where (I) the
order made would have finally dispose of
the suit or other proceedings or, (ii) the said
order would occasion a failure of justice or
cause irreparable injury to the party against
whom it is made. Under Clause (a), the
High Court would be justified in interfering
with an order of a subordinate court if the
said order finally disposes of the suit or
other proceeding. By way of illustration we
may say that if a trial court holds by an
interlocutory
order
that
it
has
no
jurisdiction to proceed the case or that suit
is barred by limitation, it would amount to
finally deciding the case and such order
would be revisable................"

13. In Sadhana Lodh vs. National
Insurance Company Ltd. and others,
Hon'ble the Supreme Court has observed :-

"......................Where a statutory
right to file an appeal has been provided
for, it is not open to High Court to entertain
a petition under Article 227 of the
Constitution. Even if where a remedy by
way of an appeal has not been provided for
against the order and judgment of a District
Judge, the remedy available to the
aggrieved person is to file a revision before
the High Court under Section 115 of the
Code of Civil Procedure. Where remedy for
filing a revision before the High Court
under Section 115 of CPC has been
expressly barred by a State enactment, only
in such case a petition under Article 227 of
the Constitution would lie and not under
Article 226 of the Constitution......"

14. The Division Bench of this Court
in Ram Dhani and others vs. Raja Ram
and others has considered the scope of
Section 115 CPC as amended in the State
of Uttar Pradesh, by the Code of Civil
Procedure (U.P. Amendment) Act, 2003 in
detail and has held as under :
634 INDIAN LAW REPORTS ALLAHABAD SERIES

"4. A perusal, therefore, of the
aforesaid amendment in Uttar Pradesh,
would show that what was contained in
Clause (b) of proviso to Section 115 (1)
before
its
amendment
has
been
reintroduced in Section 115 (3) (ii) after the
amendment in the State of U.P. In the U.P.
Amendment Act, 2003, the expression
''order' has been set out to include ''an order
deciding an issue in any original suit or
other proceedings.'

5. Section 2 (14) of Code of Civil
Procedure, describes an ''order' to mean
''the formal expression of any decision of a
Civil Court which is not a decree.'

The expression ''decree' has been
defined under Section 2 (2) to mean ''the
formal expression of an adjudication
which, so far as regards the Court
expressing it, conclusively determines the
rights of the parties with regard to all or
any of the matters in controversy in the suit
and may be either preliminary or final. It
shall be deemed to include the rejection of
a plaint and the determination of any
question within Section 144, but shall not
include- (a) any adjudication from which
an appeal lies as an appeal from an order,
or (b) any order of dismissal for default.

6. An order thus has to have the
trappings of a formal expression of a
decision
of
a
Civil
Court.
In
the
Explanation contained in Section 115 of
Code of Civil Procedure in the Central Act,
both before and after the amendment, it is
specifically set out that the expression ''any
case which has been decided' includes ''any
order made or any order deciding an issue,
in the course of a suit or other proceeding.'
The provision as contained in the U.P.
Amendment is revision against an order in
a case decided. The intent and object,
therefore, of both the Central Act and as
amended in the State of U.P. appear to be,
that a revision will be maintainable in
respect of an order in a case decided.
x
x
x
x

12. Section 115(3) as applicable to the
State of U.P., apart from providing that the
Superior Court would not vary or reverse
any order except where- (I) the order, if it
had been made in favour of the party
applying for revision, would have finally
disposed of the suit or procedure, or (ii) the
order, if allowed to stand, would occasion a
failure of justice or cause irreparable injury
to the party against whom it is made, would
also require that there must be an order and
that order decides the part of the case or
proceedings.
These
are
further
considerations which the Court must apply
after it comes to the conclusion that it is a
case decided. Thus, Section 115 (3) really
would be of no assistance in deciding the
issue of ''order' or ''case decided'."

15. Section 115 CPC, as applicable to
the State of U.P., provides for remedy to
any of the party to the litigation to
challenge the order passed by the court
below. If the subordinate court has acted in
exercise of its jurisdiction illegally or with
material irregularity, the superior court may
revise such an order. The superior court
may also vary or reverse any order in
exercise of revisional powers, if the order is
allowed to stand, it would occasion failure
of justice or cause irreparable injury to the
party against whom it is made. An order
passed under Section 24 C.P.C. will also
fall in that category.

16. So as to arrive at a conclusion to
answer the questions referred by the
learned
Single
Judge,
we
deem
it
appropriate to categorize the set of
judgments expressing different opinions in
the matter.
11 All. Babu Singh & Ors. Vs. Raj Bahadur Singh & Ors.
635

(A)

JUDGMENTS
HOLDING
THAT A SECOND APPLICATION
UNDER
SECTION
24
CPC
IS
MAINTAINABLE

17. This Court in Jagdish Kumar's
case (supra) observed as under :

"14. Thus, an order under Section
24 of the Code either allowing or refusing
to transfer or withdraw a suit or proceeding
is not a case decided within the meaning of
Section 115 of the Code as such an order
under Section 24 of the Code is not subject
to revision under Section 115 of the Code.

15. Since the order is neither
appellable nor revisable as is the position as
observed earlier, the same can never be
sacrosanct or without any remedy. Such
remedy are available under different
provision of law. If it is an order of District
Court refusing to transfer or allowed the
transfer, the party can approach for
retransfer, if transferred either before the
District Judge or before the High Court. If
refused, the aggrieved party may approach
the High Court. Similarly in case of
transfers,
the
High
Court
may
be
approached for retransfer and in case of
refusal, the party is free to approach the
Supreme Court under Section 25 of the
Code. Against an order passed by the
learned District Judge, it is open to the
party to invoke the Higher Court's power of
superintendence over subordinate court
conferred upon the former under Article
227 of the Constitution. Inasmuch as
Article 227 of the Constitution is not
frittered by any other law or statute or any
qualification.
x
x
x
x

21. Thus the out-come of the
above discussion indicates that when an
application for transfer before the District
Court fails, the party applying may
approach the concurrent jurisdiction of the
High Court under the same provision but
the party opposing though may apply for
retransfer before the District Judge but
cannot challenge the said order under
Section 115 of the Code though, however,
on the principle on which Article 227 of the
Constitution can be exercised he may
invoke the power of superintendence
conferred upon the High Court by the
Constitution under Article 227 of the
Constitution thereof. But if the party
approaches the concurrent jurisdiction of
the High Court straightaway then the
applicant and opposite party - both may
approach the Supreme Court under Section
25 of the Code, if aggrieved by the order of
the High Court. But once the High Court
passes an order under Section 24 on an
application of an unsuccessful applicant
before the District Judge, the order of the
District
Judge
stands
overruled
by
implication on passing of the order by the
High Court. As such in the facts and
circumstances of the present case, the
application under Section 24 of the Code
before this Court is maintainable."

18. The Judgment of Jagdish
Kumar's case (supra) was followed by the
learned Single Judge of this Court in
Ishtiyak Ahmad v. Smt. Meena and
others, wherein it was observed:

"5. The remedy under Article 227
of the Constitution of India is an
extraordinarily remedy of discretionary
nature and it cannot be ordinarily permitted
to be invoked if the party has any
alternative statutory remedy for getting the
desired relief.

6. The jurisdiction under section
24, C.P.C.
is
concurrent
jurisdiction
conferred both upon the District Judge and
the High Court. Therefore, if an application
636 INDIAN LAW REPORTS ALLAHABAD SERIES
under section 24, C.P.C. has been rejected,
the party aggrieved may move a fresh
application before the High Court under
section 24, C.P.C. itself as has also been
laid down by the aforesaid decision."

19. The Judgment of Jagdish
Kumar's case (supra) was also followed
by another Single Judge in Amit Pachauri
Vs.
Smt.
Ram
Beti
in
Transfer
Application (Civil) No. - 226 of 2016,
decided on July 13, 2016, wherein it was
observed:

" The aforesaid decision nowhere
lays down that once a party has approached
the District Judge under Section 24 CPC, it
cannot file a fresh application before the
High Court, rather it specifically lays down
that
the
jurisdiction
conferred
under
Section 24 CPC is concurrent and that a
party filing an application under Section 24
CPC before the District Judge may
approach the High Court under the same
provision. In view of the aforesaid facts
and circumstances, there is no bar in
moving an application under Section 24
CPC before the High Court for transfer of a
case by the same party after losing in
getting it transferred by the District Judge."

20. Another learned Single Judge in
Jaikaran Singh & others Vs. Balakram
and others has held :

"10. Having heard the learned
counsel for the parties, I am of the view
that an Application under Article 227 of the
Constitution of India did not lie against an
order passed under Section 24 of the CPC
by the District Court. The High Court can
always independently look into the grounds
of a Transfer Application afresh. The
jurisdiction conferred on both-the High
court and the District was concurrent and
was independently available to both the
Courts.

11. However, the parties should
approach the District Court first and
thereafter the High Court as judicial
propriety demands that judicial hierarchy
be maintained. It was, therefore, always in
the interest of justice that the powers of the
District Court be invoked initially and,
thereafter, those of the High Court.........."

21. A Division Bench of Calcutta
High Court in Gorachand Das vs. Dipali
Das decided on April 9, 1976 has observed
as follows :

"9. In the last place the contention
of Mr. Mukherjee on behalf of the opposite
party has been that the present application
is not maintainable on the ground that no
revision lies against the order passed by a
District Judge refusing to transfer a case
under section 24, and further that the
petitioner once having made an application
under section 24 before the District judge
and that application having failed he is not
entitled to move a fresh application under
section 24 before the High Court. We are
unable to accept this contention of Mr.
Mukherje. The language used in section 24
is :

The High Court or the District
Court may, at any stage-

Transfer any suit....."

On a plain reading of the section,
therefore, it cannot be said that moving an
application before the District Court will
preclude the petitioner from moving a fresh
application before the High Court. In the
case of Hari Nath Biswas v. Debendra Nath
Biswas 11 C.L.J. 218 also reported in 5 I.C.
771, which is a Bench decision of this
Court, it has been held that if the District
Judge refuses to transfer a case under
section 24 the petitioner may make a fresh
11 All. Babu Singh & Ors. Vs. Raj Bahadur Singh & Ors.
637
application for transfer to the High Court.
The same view was also taken in Sheo
Nandan Lal v. Mangal Chand, AIR 1927
Pat. 383. In this view of the matter we need
not concern ourselves with the question as
to whether a revisional application under
section 115 of the Code is maintainable
against the order passed by a District Judge
refusing to transfer a suit under section 24
of the Code."

(B)

JUDGMENTS
HOLDING
SECOND
APPLICATION
UNDER
SECTION
24
CPC
NOT
MAINTAINABLE
AND
PETITION
UNDER ARTICLE 227 OR REVISION
UNDER
SECTION
115
CPC
MAINTAINABLE

22. This Court in Sunita Devi Vs.
Ram Kripal and another, considered the
scope of section 24 of C.P.C. and held as
under:

"8. The expression "the High
Court or the District Court" clearly
indicates that the power of the District
Judge and that of the High Court under
section 24 of the C.P.C. is mutually
exclusive. The word "or" in the expression
"the High Court or the District Court" in
sub-section (1) is used disjunctively and
not conjunctively which means that a
person can move either the High Court or
the District Court and not both the Courts
in succession one after the other. Thus,
from the aforesaid expression it is crystal
clear that the application under section 24
of the C.P.C. can either be moved before
the District Judge or the High Court and
cannot be moved simultaneously or one
after the other. Thus, the remedy can be
availed either by approaching the District
Judge or directly to the High Court. Since
the jurisdiction of the District Judge and the
High Court is concurrent under section 24
of the C.P.C., so if one party has
approached the District Court, that party
would be precluded from approaching the
High Court under section 24 of the C.P.C.
The High Court under section 24 of the
C.P.C. cannot sit over the order of the
District Judge as a Revisional Court or as
an Appellate Court.
x
x
x
x

10. From the above provision of
the Cr.P.C. it is clear that if any transfer
application is rejected by the Sessions
Judge the applicant can come to the High
Court for getting the case transferred from
one Court to the other in the same
judgeship on the same ground but there is
no such provision in the C.P.C. So, in the
absence of such provision no party can
approach the High Court after rejection of
his application by the District Judge. In this
reference, the ruling of the Hon'ble High
Court rendered in Dadi Jagannadham v.
Jammulu Ramulal, may be referred to. In
this ruling, it has been held that the Court
could not add words to a statute or read
words into it which are not there, especially
when the literal reading produces an
intelligible result.

11. So, in the absence of any
specific provision in the C.P.C. a person
cannot approach the High Court under
section 24 of the C.P.C. or any other
provision of the C.P.C. to get his case
transferred from one Court to another in the
same judgeship after rejection of his
transfer application by the District Judge on
the same ground. But he is not remediless.
He may approach the High Court for this
purpose by means of filing the writ petition
under Article 226 and 227 of the
Constitution of India and may invoke the
High Court's power of superintendence" 9.
In view of the aforesaid, I find that transfer
application filed by the applicant is not
638 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable. Consequently, the transfer
application deserves to be dismissed."

23. The decision in Sunita Devi's
case (supra) was followed by this Court in
Indian Oil Corporation Ltd. Vs. Ram
Swaroop Bajaj, in Transfer Application
(Civil) No. 34 of 2016, decided on
February 2016, wherein it has been
observed as under :

"5. From perusal of the aforesaid
provisions, it is apparently clear that no
power has been conferred on the High
Court to set aside the order passed by the
District Court on an application under
section 24 of C.P.C.

6. In the case of Dr. Ajay
Chaturwedi v. Smt. Shobhanal, a Division
Bench of this Court has considered the
nature of power under section 24 of C.P.C.
and held that transfer of proceedings of
suit, appeal etc. can be directed by the High
Court/District Court on an application as
also suo moto. This power of transfer is not
an exercise of original jurisdiction, it is not
an exercise of appellate jurisdiction nor it is
an exercise of revisional jurisdiction. The
power of transfer of suit and other
proceedings is an exercise of power of
superintendence. The legal position has
also been explained by the Madras High
Court in the case of P. Karuppiah Ambalam
v. Ayya Nadar. The power conferred under
section 24 of C.P.C. gives power to two
Superior Courts, viz., the High Court or the
District Court to withdraw any suit, appeal
or other proceedings pending in any Court
subordinate to it and either try and dispose
of the same, or transfer the same for trial or
disposal to any Court, subordinate to it and
competent to try or dispose of the same.
Section 24 confers a very wide power, and
it is intended to enable the two Superior
Courts mentioned in it to exercise their
general power of superintendent over
Subordinate Courts, or in the interest of
justice."

24. A Division Bench of Kerala High
Court in Ariamma Sachariah vs. Rose
Elizabeth Kurian in C.M.C. no. 94/2000
decided on February 26, 2004, held as
under :

"8. A perusal of the provisions
would show that power has been given to
the District Court or the High Court to
order transfers. Of course, in cases where
suits or proceedings lie outside the
jurisdiction of the District Court, power
under Section 24 of the C.P.C. can be used
only by the High Court. According to us,
an interpretation of Section 24 of C.P.C.
will clearly show that a party can approach
the District Court or High Court for transfer
of cases. That does not mean that party,
who did not get favourable orders by filing
petition under Section 24 of C.P.C. before
the District Court can approach the High
Court for the same relief.

9. The main attack is that even if
the order is passed by the District Court
under Section 24, the party can be allowed
to approach this Court under Section 24 of
the C.P.C. We are of the view that this
contention cannot be accepted. According
to us, the party can approach this Court
under Article 227 of the Constitution to
redress their grievances. If we accept the
interpretation given by the learned Counsel
for the petitioners that will lead to
multiplicity of proceedings and waste of
time.

10. In the above view of the
matter, we are of the view that once an
order is passed in a petition under Section
24 of C.P.C. by the District Court, that
order can be challenged and the party
cannot file another petition under Section
11 All. Babu Singh & Ors. Vs. Raj Bahadur Singh & Ors.
639
24 of C.P.C. for the same cause of action
before the High Court."

25. The Madras High Court in
Sebastian vs. R. Prabakaran and others
in Transfer Civil Miscellaneous Petition
(MD) No. 19 of 2011 and M.P.