# Bhagwan Srikrishna Virajman & Ors v. U.P. Sunni Central Waqf Board & Ors

- **Citation:** (2023) 5 ILRA 683
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-26
- **Case number:** Civil Misc. Transfer Application No. 88 of 2023
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-srikrishna-virajman-ors-v-u-p-sunni-central-waqf-board-ors-50270
- **Pages:** 17

## Headnote

Sri Punit Kumar Gupta, Sri Birendra Prasad
Maurya, Sri Devid Kumar Singh, Sri
Kamlesh
Narayan
Pandey,
Sri
Nasiruzzaman,
Sri
Prateek
Rai,
Sri
Radheshyam Yadav, Sri Varun Singh, Sri
Wajahat Hussain Khan (Sr. Advocate), Sri
J.H. Khan (Sr. Advocate), Sri Manish Goyal
(Addl. A.G.), Ms. Anjali Goklani

A. Civil Law - Civil Procedure Code, 1908 -
Section 24 - the applicants filed civil suit
for declaration, injunction and right to
worship at the site of Shri Krishna
Janmasthan and also removal of the
present structure alleged to be Shahi
Eidgah Mosque- As many as 10 suits are
stated to be pending before the civil court
and also there should be more suits that
can be said to be pending and issue can be
said to be seminal public importance
affected the masses beyond tribe and
beyond
communities
having
not
proceeded an inch further since their
institution on merits for past two to three
years,
provides
full
justification
for
withdrawal of all the suits touching upon
the issue involved in the suit from the civil
court concerned to this Court under
Section 24(1)(b) CPC while the prayer
made for original suit no.353 of 2022
being withdrawn and transferred to this
Court made by the applicant is allowed-
For rest of the suits, this Court withdraws
such suits of similar nature from the lower
civil court concerned are transferred
(them) to this Court exercising its suo
motu powers for trial.(Para 43)

The transfer application is allowed. (E-6)

List of Cases cited:
684 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

_Characters 0–39,872 of 57,862. This is a partial read: ask again with offset=39872 for what follows._

5 All. Bhagwan Srikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
683
has no concern with the partition of
property in dispute and it is between the coowners. Tenant has no business to raise
such objection and it is only open for coowners. Again this Court is of the firm
view that tenant has no right to raise issue
of partition in eviction suit.

44. Therefore, in light of facts and
judgments discussed herein above, this
Court is of the firm view that co-owner
whether being a family member or not has
full right to file suit for eviction in case not
objected by other co-owners. Partition of
property in dispute is not necessary
requirement for filing a suit for eviction so
far as tenant is concerned. It is only
between the co-owners and in the present
case, co-owners are having no dissent on
the point of filing of suit for eviction nor
having any dispute of partition. The only
requirement for filing suit for eviction is
about the relationship of landlord and
tenant and service of notice, which is not
disputed in the present case. Therefore this
Court finds no good reason to interfere with
the impugned order dated 07.02.2023.

45. Therefore, revision lacks merit
and is accordingly dismissed.

46. No order as to costs.
----------
(2023) 5 ILRA 683
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2023

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Civil Misc. Transfer Application No. 88 of 2023

Bhagwan Srikrishna Virajman & Ors.
 ...Applicants
Versus
U.P. Sunni Central Waqf Board & Ors.
 ...Opposite Parties

Counsel for the Applicants:
Sri Prabhash Pandey, Sri Pradeep Kumar
Sharma, Sri Vishnu Shankar Jain, Sri Hari
Shankar Jain (Sr. Advocate)

Counsel for the Opposite Parties:
Sri Punit Kumar Gupta, Sri Birendra Prasad
Maurya, Sri Devid Kumar Singh, Sri
Kamlesh
Narayan
Pandey,
Sri
Nasiruzzaman,
Sri
Prateek
Rai,
Sri
Radheshyam Yadav, Sri Varun Singh, Sri
Wajahat Hussain Khan (Sr. Advocate), Sri
J.H. Khan (Sr. Advocate), Sri Manish Goyal
(Addl. A.G.), Ms. Anjali Goklani

A. Civil Law - Civil Procedure Code, 1908 -
Section 24 - the applicants filed civil suit
for declaration, injunction and right to
worship at the site of Shri Krishna
Janmasthan and also removal of the
present structure alleged to be Shahi
Eidgah Mosque- As many as 10 suits are
stated to be pending before the civil court
and also there should be more suits that
can be said to be pending and issue can be
said to be seminal public importance
affected the masses beyond tribe and
beyond
communities
having
not
proceeded an inch further since their
institution on merits for past two to three
years,
provides
full
justification
for
withdrawal of all the suits touching upon
the issue involved in the suit from the civil
court concerned to this Court under
Section 24(1)(b) CPC while the prayer
made for original suit no.353 of 2022
being withdrawn and transferred to this
Court made by the applicant is allowed-
For rest of the suits, this Court withdraws
such suits of similar nature from the lower
civil court concerned are transferred
(them) to this Court exercising its suo
motu powers for trial.(Para 43)

The transfer application is allowed. (E-6)

List of Cases cited:
684 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Baselius Mar Thoma Mathews I & ors. Vs
Plaulose Mar Athanasius & ors. (1980) 1 SCC
601

2. St. of U.P. & ors. Vs U.P. Sunni Central Board
of Waqf & ors. (1989) 15 ALR 696

3. Swami Vasudevanand Saraswati Disciple of
Swami Shanta Nand Saraswati Vs Jagat Guru
Shankaracharya

4. Jyotishpeeth Peethadheshwar Shri Swami
Swaroopa Nand Saraswati (2016) SCC Online All
2956,

5. Twentieth Century Fox Film Vs NRI Film
Production Pvt. Ltd (2003) AIR 148

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard Sri Hari Shankar Jain,
learned senior counsel for the applicants
through virtual mode, Sri Vishnu Shankar
Jain, Sri Prabhash Pandey and Sri Pradeep
Kumar Sharma, learned counsel for the
applicants, Sri Punit Kumar Gupta, learned
counsel for the respondent no.1, Sri
Wajahat Hussain Khan, learned senior
counsel assisted by Sri Nasiruzzaman and
Sri J.H. Khan, learned counsel for the
respondent no.2, Sri Prateek Rai, learned
counsel for the respondent no.3, Sri
Birendra Prasad Maurya, Sri Kamlesh
Narayan Pandey, learned counsel for the
respondent no.4 and Sri Radhey Shyam
Yadav, learned counsel for the proposed
respondent no.5, Sri Manish Goyal, learned
Additional Advocate General for the State
appointed as Amicus Curiae by the Court,
who is assisted by Ms. Anjali Goklani,
Advocate.

2. Noticeable that in this case, an
impleadment application was moved on
behalf
of
Mahendra
Pratap
Singh,
Advocate who also wanted hearing on
point of transfer, thus praying that he be
impleaded as proposed respondent no.5.
The
impleadment
application
was
supported by affidavit sworn by deponent
Vivek Kumar Mishra whereby averments
were made in the accompanying affidavit
and it was claimed, inter-alia, that the
description of civil suit as described in
paragraph no.7 of this transfer application,
describes
the
suit
of
the
proposed
respondent at serial no.1 of the list being
civil suit no.950 of 2020 (Thakur Keshav
Dev Ji Maharaj Virajman Mandir and
others Vs. Intezamia Committee and
others) has been instituted by the applicants
and others on 22.12.2020. Therefore, he
should be heard in this case before passing
any order. Consequently, he was given
opportunity to extend arguments and state
his case before this Court along with other
counsels of both sides and the case of the
proposed respondent no.5 was argued
before this Court by his counsel, Sri R.S.
Yadav and due consideration was given.

3. By way of this transfer application
under Section 24 of the Civil Procedure
Code 1908, the following prayer has been
made:-

"(a) Withdraw Civil Suit No.353
of 2022 from the Court of Civil Judge
(Senior Division), Mathura to this Hon'ble
Court for Trial in exercise of the powers
under Section 24(1)(b) of Code of Civil
Procedure, 1908;

(b) Direct to withdraw all suits of
similar nature to this Hon'ble Court on the
basis of list of cases which may be supplied
by Ld. District Judge, Mathura to this
Hon'ble Court;

(c) Pass such other order(s) as
this Hon'ble Court may deem fit and proper
under the facts and circumstances of the
case."
5 All. Bhagwan Srikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
685

4. The application is supported by
affidavit with details of facts of the suit
(original suit no.353 of 2022) and for sake
of convenience, it would be relevant that a
brief sketch of chronological development
up to this stage may be narrated.

5. Bare perusal of the record of this
transfer application reflects and proceeds
on line that the applicants filed civil suit for
declaration, injunction and right to worship
at the site of Shri Krishna Janmasthan and
also removal of the present structure
alleged to be Shahi Eidgah Mosque. The
suit was registered as misc. case no.176 of
2020 in the court of the Civil Judge (Senior
Division), Mathura.

6. It is worth mentioning that the
filing of the aforesaid suit was under
circumstances wherein by way of the suit
some compromise decree passed earlier
between parties, to that particular suit was
challenged on ground of collusion between
the parties of the suit by the present
applicants and the alleged compromise
dated 12.10.1968 and based upon that the
decree passed was stated to be sham and
fraud, thus the decree passed by way of
aforesaid compromise was claimed to be
null and void. It being so, the aforesaid suit
was registered by the Civil Judge (Senior
Division), Mathura as civil misc. case
no.176 of 2020 on 25.09.2020. However,
the aforesaid misc. proceeding / suit was
dismissed by the learned Civil Judge
(Senior Division), Mathura vide order
dated
30.09.2020,
holding
that
the
worshipers had no right to file the suit, their
number were in lakhs as worshipers of
Lord
Krishna
and
in
case
suit
is
entertained, a large number of cases may be
filed / instituted, copy of the plaint has been
brought on record (annexure no.1).

7. The applicant aggrieved by the
aforesaid order dated 30.09.2020 of the
Civil Judge (Senior Division), Mathura,
preferred civil appeal no.17 of 2020 before
the learned District Judge, Mathura, which
was admitted by it vide order of the District
Marthura, dated 16.10.2020. Later on this
appeal was converted into civil revision
no.2 of 2021. The parties were heard in the
civil revision and vide judgment and order
dated 19.05.2022, the revision was allowed
and the matter was remanded to the trial
court
with
direction
to
proceed
in
accordance with law. Consequently, the
proceeding started afresh by the Civil
Judge (Senior Division), Mathura, and the
suit was numbered as civil suit no.353 of
2022.

8. However, in the meanwhile it so
happened that the respondent nos.1 and 2 -
U.P. Sunni Central Waqf Board and Trust
Shahi Masjid Eidgah, challenged the
aforesaid order of the District Judge, dated
19.05.2022 (passed in civil revision no.2 of
2021) filing the petition under Article 227
of the Constitution of India, Numbered
5967 of 2022 and 5348 of 2022, both the
sides were heard by the coordinate Bench
of this Court and the petition was disposed
of vide order dated 01.05.2023, the last
paragraph
of
which
is
extracted
hereinbelow:-

"In the light of above, both the
petitions are disposed by remanding the
matter back to the Trial Court with directions
to adjudicate the Civil Suit No.353 of 2022
after following due procedure as per law
without being influenced by any observation
or findings of the District Judge vide
impugned order dated 19.05.2022. All the
parties are free to raise all their contentions
before the trial Court."
686 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In the light of above order, it is
apparent that the order dated 19.05.2022
passed by the District Judge, Mathura, in
civil revision no.2 of 2021 was sustained.
However, the various findings recorded by
the District Judge, Mathura touching upon
the merit of the suit itself was set aside, for
specific reason that any finding on merit
can be recorded only after the written
statement is filed, issues framed thereon,
evidence adduced and after discussion of
facts and law applicable, finding to be
recorded by the trial court thereon.

10. While coming back to the
averments elaborated in this transfer
application, it proceeds with the import that
the matter involved here has historical
background and it involves interest and
sentiments of public at large, requires
interpretation of various statutes, laws, Acts
and ARTICLES of the Constitution of
India. The matter is highly sensitive and
inter-alia relates to belief and faith of crores
of devotees of Lord Krishna. The matter is
of national importance and substantial
questions of law involved in the suit. In
fact, the complicated questions of law
concerning a large section of society
having its impact on the entire nation are
required to be decided by the highest court
of the State.

11. The aforesaid suit also involves,
explicitly and by implication determination
of questions relating to history, scriptures,
interpretation of Hindu and Muslim law
and it being so, the present suit (no.353 of
2022) is standing entirely on different
footing unlike the normal civil suit as such
of exceptional nature.

12. The averments contained in the
transfer application proceed on to claim
that the suit no.353 of 2022 was filed on
25.09.2020, thereafter, a number of suits
have been filed and are pending in the
court
of
the
Civil
Judge
(Senior
Division), Mathura. The applicant has
furnished
details
of
such
suits
in
paragraph no.7 of this transfer application
which comprises list of as many as nine
cases, a brief reference of the same
becomes relevant;

(i) Civil Suit 950 of 2020 Thakur
Keshavji
Maharaj
Vs.
Intizamiya
Committee

(ii) Civil Suit 107 of 2021 Thakur
Keshavji
Maharaj
Vs.
Intizamiya
Committee

(iii) Civil Suit 151 of 2021
Bhagwan Shri Krishna Virajmaan Vs.
Sunni Central Waqf Board

(iv) Civil Suit 152 of 2021
Bhagwan Shri Krishna Virajmaan Vs. U.P.
Sunni Central Waqf Board

(v) Civil Suit 252 of 2021 Thakur
Keshavji Maharaj Vs. U.P. Sunni Central
Waqf Board

(vi) Civil Suit 174 of 2021
Keshav Dev Ji Maharaj Vs. U.P. Sunni
Central Waqf Board

(vii) Civil Suit 620 of 2021
Bhagwan Bal Shri Krishna Keshav Dev
Virajmaan Vs. U.P. Sunni Central Waqf
Board

(viii) Civil Suit 683 of 2021
Gopal Giri Maharaj Vs. U.P. Sunni Central
Waqf Board,

All the aforesaid eight cases are
stated to be pending in the court of the
Additional Civil Judge (Senior Division),
Mathura. However, the last case being
ninth case described in the list of suits
given in the transfer application is stated to
have been pending in the court of the 3rd
Additional Civil Judge (Senior Division)
Mathura, with relevant detail:-
5 All. Bhagwan Srikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
687

(ix) Civil Suit 839 of 2022
Bhagwan Bal Shri Krishna Virajman Vs.
Intezamia Masjid Shahi Masjid.

13. However, the gravity of the issue
involved
and
the
large
and
wide
background of the case has been tried to be
equated with the case of the Ram Janam
Bhoomi pertaining to Ayodhya and specific
plea has been raised that this Court vide
order dated 10.07.1989 was pleased to
transfer all suits pertaining to Ayodhya
dispute consequent upon which, the suits
(alike in nature) were tried by this Court
(High Court) and decided vide judgment
and order dated 30.09.2010. It proceeds
further with claim that an appeal was
preferred against the aforesaid order and
the matter was finally adjudicated upon by
the five Judges Bench of the Hon'ble Apex
Court vide judgment and order dated
09.11.2019 [2020 (1) SCC 1].

14. Based upon aforesaid averments,
specific plea is raised that in case the suit is
decided by the trial court itself, it will take
long time. However, the matter needs be
decided expeditiously to save the time of
the litigant parties and to serve the interest
of justice.

15. In support of his claim, learned
counsel for the applicants proceeds on to say
that under prevailing facts and circumstances
of this peculiar suit, the same may be
conveniently
withdrawn
by
virtue
of
provision under Section 24 of the Civil
Procedure Code, 1908 which empowers the
higher Courts to try the suit after withdrawing
it from the lower court concerned. The suit
requires consideration by higher court which
admittedly has vision broad and wide.

16. The point in issue involved in the
suit for adjudication relates to Shri Krishna
Janmbhoomi and the plaintiffs are claiming
right to worship and removal of the present
Shahi Eidgah Masjid.

17. One of the grounds urged for
exercise powers under Section 24 of the
C.P.C. revolves around the axis to the
ambit that the Civil Judge has not worked
properly while the suit was initially
preferred / instituted while exercising
powers under Order 7 Rule 11 C.P.C.
touching upon those issues which might not
have been touched at this stage. While the
applicants were pursuing remedy against
outcome of order of the trial court dated
30.09.2020 as many as nine suits were filed
and duly registered by the Civil Judge
(Senior Division), Mathura and due to that,
for the past three years the suit has not
progressed any further.

18. Learned counsel for the applicants
has explained the historical and religious
nature of the suit and claimed that the
history of 'Karagar' (jail) of Kans wherein
Lord Krishna incarnated in human form, is
sacred and divine for the Hindu devotees. It
is a deity worshiped by the Hindu devotees.
The 'Karagar' of 'Kans' at present is located
beneath the alleged Shahi Eidgah Masjid
and by explaining these aspects to some
length, the learned counsel for the applicant
has endeavoured to bring to the notice of
this
Court
the
various
complicated
questions which are involved and call for
adjudication of the same in the present suit.
Some of these complicated questions were
stated to be interpretation, validity and
applicability of places of worship Act 1991,
interpretation / applicability of Waqf Act
1995, rights of Hindu deity under Hindu
Law
and
under
Article
25 of
the
Constitution of India and interpretation of
Article 25, 26 and 300 A of the
Constitution of India. Moreover, it involves
688 INDIAN LAW REPORTS ALLAHABAD SERIES
adjudication on point of birth place -
'Asthan', as deity, the rights and duty of
Shebait under Hindu Law and rights of
Hindu devotees where Shebait has been
negligent and the property of the deity has
been alienated/transferred against the law,
decree obtained by fraud and challenged by
Hindu
devotees,
adjudication
upon
distinction between Waqf and Trust, and
apart from all above point of applicability
and interpretation of law of adverse
possession.

19. Learned counsel has asserted that
the aforesaid substantial questions would
arise before the trial court. Therefore, the
original trial may be conducted by this
Court.
After
describing
the
factual
background, the learned counsel claimed
that sensitive / sentimental issues of
national and public importance between
and among people are involved which need
be properly scrutinized and adjudicated
upon.

20. At this juncture, it would be
relevant to take note of objection raised by
the
respondents,
however,
before
proceeding further, it would be desirable to
state that respondent no.3 has no objection
to the forum of litigation, he is interested
only in expeditious disposal of the case /
suit. Therefore, no special objection has
been raised by the respondent no.3.

21. Noticeable that respondent no.1
while rebutting the plea of the applicant is
specific to the point that the only reason
assigned for ground of transfer of the trial
has been enumerated in paragraph no.8 of
the transfer application. Thereafter, the
respondent no.1 proceeds on the line that
claim has been raised by the applicants that
the matter is expanding to the length and
breadth of India and concerns crores of
devotees of Lord Krishna would not serve
the purpose of the applicants. Apart from
aforesaid specific objection, there are
ancillary objections of the nature that no
prejudice is caused to the applicants and the
relief sought to its core by way of the suit
basically pertains to cancellation of the
decree dated 20.07.1973 and 07.11.1974
passed in original suit no.43 of 1967.
Thereafter,
learned
counsel
proceeds
further and has explained about the import
and application of the Section 24 C.P.C. in
the present context. Learned counsel
continued
that
in
case
the
transfer
appellation is allowed it would be opening
pandora box and in every case pertaining to
religious places would be the voice of the
concerned. Learned counsel in concluding
rebuttal vehemently contended that in the
matter of Kashi Vishwanath Temple
dispute, the Hon'ble Apex Court vide its
order dated 20.05.2022 transferred the
proceeding of the original suit to the
District Judge, Varanasi, he being an
experienced judicial officer.

22. The respondent no.2 has virtually
adopted the contention as raised by
respondent no.1 with fresh addition that
none of the applicant is resident of Mathura
where the dispute property is situate. The
plaintiffs are rich persons, whereas, the
opposite party no.2 has no sufficient means
and financial position is very week.
Convenience of the parties would be
suitably adjusted if the suit is tried by the
Civil Judge, Mathura. It would cause
inconvenient to witnesses of both the sides
to come over to Allahahad / Prayagraj from
Mathura. Further claim has been raised that
insofar as the nine cases enumerated in
paragraph no.7 of the transfer application to
be cases of similar nature are concerned,
none of the parties to the suit so described
has been made to this transfer application.
5 All. Bhagwan Srikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
689

23. Similarly placed is the line of
argument of the respondent no.4 more or
less touching and urging upon the same
issue as endeavoured by the respondent
nos.1 and 2 while objecting to the prayer
made in the transfer application, therefore,
there is no need of repeating the same
argument to the same import.

24. The intervenor-the proposed
respondent no.5 Mahendra Pratap Singh,
Advocate was allowed to state his case as
he claimed himself to be one of the
plaintiffs of the suit at the top of the list
furnished by the applicants in paragraph
no.7 of the transfer application. The learned
counsel for the respondent no.5 has not
brought any new theme rather his claim is
based that the relief sought by the proposed
respondent in his suit (950 of 2020) has got
nothing to do with the relief sought in the
suit instituted by the applicants. Therefore,
the transfer application is claimed to be
misconceived and misguided one. The
court below is competent to decide the
issue
raised
and
can
be
properly
adjudicated upon. However, the cases of
the similar nature may be consolidated and
brought together, may be decided by the
court below and basing the leading suit to
be suit no.950 of 2020.

25. Before proceeding further with the
analysis of the entire claim, certain aspects
need be observed. This transfer application is
supported by an affidavit of one Rajesh Mani
Tripathi wherein the aforesaid details have
been provided in paragraph no.8 of the
affidavit. Counter affidavit has been filed on
behalf of the respondent no.1 and there is no
denial of the assertions made in paragraph
no.8 of the affidavit filed in support of this
transfer application. This is evident from bare
perusal of the paragraph no.10 of the counter
affidavit filed by respondent. Likewise, in the
counter
affidavit
of
respondent
no.2,
assertions made in paragraph no.8 of the
affidavit has been stated to be matter of
record except for the fact that original suit
no.151 of 2021 and original suit no. 152 of
2021 were dismissed for want of prosecution
besides these two suits, some more suits are
also pending before the court concerned. For
ready reference, paragraph no.6 of the
counter affidavit of respondent no.2 is
extracted herein under:-

"That the contents of paragraph
no.6, 7 and 8 of the affidavit are also the
matter of record but two suits as CS No.151
of 2021 and CS No.152 of 2021 have been
dismissed for non prosecution and some
more suits are also pending besides the list in
paragraph no.7.

26. Likewise counter affidavit filed by
the respondent no.4 who has admitted
contents of the paragraph no.8 of the affidavit
filed in support of the transfer application and
has given detail of one further suit being
original suit no.12 of 2023 Sri Krishna
Janambhhoomi Mukti Nirman Trust Vs.
Shahi Masjid Eidgah and others, which is
stated to be pending before the court of the
Civil Judge (Senior Division), Mathura.

27. From pleadings of the parties, it
is more evident that at least, nine suits are
pending
consideration,
inter-alia,
involving
the
issue
relating
to
the
interpretation of various facets of statutes,
constitutional law, elastical law, historical
importance besides personal law and
common law.

28. The detailed arguments were
advanced by the parties and upon completion
of the pleadings on several dates which is
evident from the order-sheet, judgment was
reserved on 03.05.2023.
690 INDIAN LAW REPORTS ALLAHABAD SERIES
Analysis

29. Section 24 of the Code of Civil
Procedure (hereinafter referred as "the
C.P.C.") is a general power of transfer and
withdrawal. This power can be exercised
either on the application of the party or
power can be exercised suo motu. Section
24 C.P.C. is extracted hereinbelow:-

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 [is
thereafter to try or dispose of such suit or
proceeding] 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.

2[(3) For the purposes of this
section,

(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.]

30. Bare perusal of Section 24 (1)(b)
CPC shows that suit can be withdrawn
which is pending in the subordinate court to
the Court to which the transfer application
is made i.e. High Court. The High Court is
competent to try or dispose of the same.
The scope of Section 24 CPC is large
enough encompass to try all issues by the
High Court and exercise its power on civil
court. There is no bar that the High Court
cannot try suit, if it is withdrawn from the
civil court where it is pending and is
transferred to the High Court for disposal.

31. For the purpose of exercising
jurisdiction under Section 24 C.P.C., the
High Court has to circumspect all the facts
in issue and all the consequences that it
may have upon masses. It will be apt to
refer the decision of Hon'ble Apex Court in
the case of Baselius Mar Thoma Mathews
I and others Vs. Plaulose Mar Athanasius
and others, (1980) 1 SCC 601. The facts in
the aforecited case relates to the spiritual
life affecting orthodox syrian christians, as
many as 250 suits manifesting litigious
syndrome are remaining pending in the
several courts of Kerala. Even the court of
the Additional District Judge that was
nominated to dispose of eight suits, two
5 All. Bhagwan Srikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
691
sensitive suits did not work out to possible
logical end to the entire litigation. In such
backdrop, Hon'ble Apex Court proceeded
to make observation as follows:-

"(7) It is indubitable that after
the decision by the District Court appeals
will inevitably be carried to the High
Court. It is predictably reasonable to
expect, from all that has been presented to
us and all that we have been able to gather
from the records, that the case involves
questions of public moment and which are
likely to spiral up to the Supreme Court on
final appeal. In this jurisdiction, the
approach has to be pragmatic, not
theoretic, without whittling down the basics
of law bearing on transfer of cases.

(8) We do not for a moment
countenance the suggestion that the district
Judge is not equal to the legal intricacies
or factual challenges of these or other
cases, the procedural law having vested
him with unlimited jurisdiction and the
High Court having committed these cases
to his seisin. Hints of bias are also out of
bounds, as we have indicated. If these suits
at this stage of early arguments which have
yet to begun effectively, are transferred to
the High Court a spell of few years in the
stressful life of the litigation will be saved.
Taking copies of a bunch of decrees by the
District Court, followed by preliminaries
and filing of appeals, service of notices and
other ripening processes, may consume
considerable time and money. And then the
High Court would begin de novo the entire
arguments and appreciation of the whole
range of facts and law as in first appeal it
is bound to do in a case of this type. Where
lakhs of people are excitedly affected by the
ultimate decision and the fate of a few
hundred suits and a thousand churches is
to
be
settled
by
adjudication,
the
elimination of some years and duplication
of hearings and full arguments, at the
commanding height of the High Court is a
wise measure, all things considered. The
social savings of abbreviation of laws'
delays are important to social justice.

(9) We do not tarry to dilate on
the many dimensions to this transfer
petition except to state that we feel the
advancement of public justice will be
promoted by the High Court itself at this
stage, proceeding to hear the suits. We,
therefore, direct that all the suits covered
by the transfer petition be transferred to the
High Court and tried from the present
stage
post-haste,
since
expeditious
termination is the driving force behind this
order for transfer."

32. It has been admitted to the
respondents that they will be losing right of
available remedy on misc. application in
revision before the District Judge, Mathura
and their right of filing the appeal before
the High Court but all procedures are
merely handmade of the justice, the
ultimate aim is to provide speedy justice.
One of the arguments which was advanced
from both the sides was with respect to the
case of Ram Janambhoomi, which was
transferred to the High Court from the
subordinate courts. On the one hand, the
applicants have to say that seminal issue of
the public importance was involved in the
said case of Ram Janambhoomi and the
High Court transferred the matter from the
subordinate court to itself. However, on the
other hand, learned counsel for the
respondents has to say that the transfer was
not made, for the reason of the importance
in issue but was made because of fact that
the suit was already pending before the
subordinate court for 40 years and could
not reach a logical conclusion and even
after transfer to the High Court, it took 30
years for the High Court to decide the suit.
692 INDIAN LAW REPORTS ALLAHABAD SERIES

33. In order to appreciate rival
contentions, it will be appropriate to refer
the decision of the division Bench of this
Court in the case of the State of U.P. and
others Vs. U.P. Sunni Central Board of
Waqf and others, (1989) 15 ALR 696 by
which the suit came to be transferred. In
paragraph no.2 of the aforecited decision,
facts have been stated and contents of
Section 24 C.P.C. and its application have
been duly mentioned which are being
reproduced herein under:-

".....An application was again
moved by the State in the month of
February, 1989 on the administrative side
praying that this application under section
24, C.P.C., may be listed for orders as
early as possible. It was mentioned in the
said application that the suits relate with
inter se dispute between the members of
two communities; one claiming it to be
Ram Janam Bhoomi temple and the other
as Babri Masjid and though the dispute is
purely civil in nature but it assumes
importance, time to time in the context as it
some times excites religious sentiments and
generates tension between the communities.
It was further stated that the State
Government is concerned to preserve amity
and
brotherly
relations
between
the
communities, but at time it assumes
sensitive issue and sometimes creates
possibility of discord and tension between
otherwise peaceful population and the
hearing and final disposal of suits in the
civil court will take long time and hence the
cases may be transferred to this court. On
that application it was ordered that the
case may be listed on February 23, 1989
and this is how proceedings started"

34. A perusal of the same, facts
disclose that it was on account of religious
sentiments, general of tensions between
two communities and to preserve amity
brotherly relations, the application was
moved and not on account of fact that the
matter was not decided for 40 years.
Paragraph no.9 and 10 of the aforesaid
decision of the division Bench of this Court
are relevant and extracted herein under:-

9. Powers of the court under
Section 24 of the C.P.C. are not to be
rendered negatory because right of one or
two appeals is lost. In suitable cases and
situations like the present are the same has
rather become necessary for advancing the
cause of justice and putting an end to the
litigation
rotating
round
the
same
controversy.

10. Taking into consideration the
facts of the case and the pendency of suits
for several years and the issue in question
which is creating tension between the
members
of
two
communities
and
developing division tendency, we are of the
view that the application under Section 24,
C.P.C. for withdrawal of suits and its trial
and disposal by this court be allowed.

35. The apprehension that was
expressed by the learned counsel for the
respondent nos.1 and 2 to the effect that
their right of appeal will be lost if the suit is
transferred to the High Court does not merit
consideration. The issue is no longer res
integra and has been decided by the
division Bench of this Court in the case of
Swami Vasudevanand Saraswati Disciple
of Swami Shanta Nand Saraswati Vs.
Jagat Guru Shankaracharya Jyotishpeeth
Peethadheshwar Shri Swami Swaroopa
Nand Saraswati reported in 2016 SCC
Online All 2956, paragraph nos.27, 28, 29
and 30 are extracted herein under:-

"27.
Further
argument
that
transfer of appeal from District Judge to
5 All. Bhagwan Srikrishna Virajman & Ors. Vs. U.P. Sunni Central Waqf Board & Ors.
693
High Court, if allowed, then a right of
second appeal will be lost, has been
negatived by this Court in State of U.P. v.
Sunni Central Board of Waqf. It is an order
passed on application under Section 24,
C.P.C. whereby suits pending in Court of
Civil Judge / Munsif were transferred to
this Court at Lucknow. A similar argument
of loss of right of appeal was negated by
observing as under:

"Powers of the Court under
Section 24 of the C.P.C. are not to be
rendered negatory because right of one of
two appeals is lost. In suitable cases and
situations like the present are the same has
rather become necessary for advancing the
cause of justice and putting an end to the
litigation
rotating
round
the
same
controversy".

28. So far as circumstances when
this Court would be justified in transferring
a case pending in subordinate Court to
High Court is concerned, in Baselius Mar
Thoma Mathews I V. Paulose Mar
Asthanasius, it has been held, where
dispute may affect lot of people, who are
excitedly affected by ultimate decision, and
exercise of transfer would save some years
and duplication of hearing, which is likely
to take ample time, transfer of matter to
High Court is a wise measure.

29. Here we do not propose to
multiply this judgment by referring to
catena of authorities on the question when
exercise of jurisdiction under section 24,
C.P.C. would be justified and suffice it to
mention, where a matter is of importance of
general public and parties also agree for
early disposal, and more so that early
disposal
of
matter
has
been
found
expedient even by Highest Court of law, an
attempt should be made so that dispute is
adjudicated at the earliest so as not to
consume much more time and leave scope
of dispute to prolong and take long time.

30. It cannot be doubted that
office of Jagat Guru Shankaracharya at
Jyotirmath
Badrikashram
is
of
high
importance to majority of people and lakhs
of people visit the Holy Math. Dispute of
holder of office of such place, is a matter of
wide
importance
and
ought
to
be
adjudicated at the earliest."

36. The special leave petition filed
against
the
aforesaid
judgment
was
dismissed as such the aforesaid decision
has attained finality. The office of Jagat
Guru Shankaracharya has been held to be
office of high importance as lakhs of
people visit the Holy Math, therefore, it
was decided to give expeditious disposal to
the matter.

37. Having said so on the power to try
the suit after withdrawing the same under
Section 24 CPC., the next apprehension
expressed by the learned counsel for the
respondents is with regard to the presence
of the witnesses to give evidence and
inconvenience caused to the witnesses to
come Prayagraj from Mathura for getting
their statement recorded before the court
concerned. The aforesaid argument, on the
face of it, is ill-founded. The Order 18 Rule
4 CPC provides for recording evidence and
it is for the Court to record evidence either
itself or by commissioner appointed by it.
With the advancement of the technology
and impetus being provided to e-judiciary,
physical presence of the witnesses can be
done in the manner and mode as per
discretion available with this Court trying
the suit and it can be recorded through
audio - video link. The reference in this
regard may be made in the case reported in
the case of Twentieth Century Fox Film
Vs. NRI Film Production Pvt. Ltd AIR
2003 148 wherein following points have
been observed by Karnataka High Court.
694 INDIAN LAW REPORTS ALLAHABAD SERIES
This can be done by providing link officer
in the local court where witnesses can
physically present, provide video link and
cross examination can be done through
audio - video mode. The relevant extract
from paragraph no.7 is reproduced herein
under:-

"7. Coming to the merits of the
matter, let me see as to whether the AudioVideo Link in the matter of evidence is
permissible in law or not ?

Order 18 of CPC provides for
hearing of the suit and examination of
witnesses. Order 18 Rule 3 provides for
evidence where other issues are involved.
Recording of evidence is provided under
Order 18, Rule 4. The CPC is amended
from time to time in the Interest of speedy
disposal
and
to
avoid
cumbersome
procedure in the matter of conducting civil
trials. It is a matter of fact that civil
proceedings in this country take a few
years as experience reveals. To get over
this
normal
procedural
delay,
the
Government has thought it fit to amended
the Act in the larger interest of speedy
disposal. The statement of objects and
reasons of CPC Amendment Act 1999
would show that the maximum time is
consumed in recording evidence by the
courts and it is proposed to reduce such
delay by making provision for evidence by
affidavit. The object refers to the report of
the Hon'ble Mr. Justice Malimath. and the
Law Commission Recommendations. The
Act was amended in 1999 in terms of the
Act 46/1999 it was subsequently amended
in CPC amendment Act of 2002. Order 18.
Rule 4 provides for examination in chief of
a witness by way of an affidavit. Sub-rule
(2) provides for cross-examination and reexamination of witnesses being done in
attendance whose evidence by affidavit has
been furnished to the Court is to be taken
by
the
Court
or
the
commissioner
appointed by it. The Court may also take
into consideration the relevant factors as it
it think fit in terms of the rule. The
argument of Sri AYN Gupta, learned
counsel is that the word "attendance"
would mean physical attendance. The
argument of Sri Udaya Holla, learned
counsel is that the word "attendance"
would not mean physical attendance.
Audio-Video
Link
is
a
technology
developed by electronic media to avoid the
physical presence and to avoid the loss in
time. It is a speedy method evolved for the
purpose of speedy decision. Even in AudioVideo Link party is definitely present in
person and his presence is reflected on the
screen.