# Brijesh Kumar Gupta v. Smt. Poonam Gupta

- **Citation:** (2002) 2 ILRA 459
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-07-17
- **Case number:** Civil Misc. Transfer Application No. 211 of 2002
- **Bench:** A.K. Yog
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/brijesh-kumar-gupta-v-smt-poonam-gupta-39959
- **Pages:** 8

## Headnote

Code
of
Civil
Procedure-
Territorial
Jurisdiction 23 (3) 24- readwith section
21-A Hindu Marriage Act- Divorce
Proceeding pending before family court
judge, Meerut to Judge Family Court,
Gwaliyar (MP) can not be entertained by
High Court Allahabad.

Held- para 23

In view of the above, the present
transfer application seeking transfer of
the case from Meerut (State of UP) to
gwalior (State of MP) is not cognizable
by this Court.
Case law discussed:
AIR 1981 SC 1143

## Text

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2 All] Brijesh Kumar Gupta V. Smt. Poonam Gupta
459
the petitioner we are of the considered
view that an order under section 156 (3)
of the Code has the complexion of a
judicial order amenable to revision
jurisdiction under section 397 of the
Code. ' Accordingly the writ petition for
quashing the first information report was
dismissed as not maintainable.

9. This decision supply the complete
reply of both the submission of Sri Tejpal.

10. In view of the above decision,
there is no illegality in the order of
Incharge Sessions Judge in admitting the
revision and also staying the operation of
the order.

11. Accordingly, the petition is
dismissed. However, the learned Sessions
Judge, before whom the revision is
pending is directed to dispose of the
revision expeditiously preferably within a
period of one month from the date of
presentation of the certified copy of this
order before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD JULY 17, 2002

BEFORE
THE HON'BLE A.K. YOG, J.

Civil Misc. Transfer Application No. 211 of
2002

Brijesh Kumar Gupta

...Applicant
Versus
Smt. Poonam Gupta
...Opposite party

Counsel for the Applicant:
Sri Vijaya Prakash

Counsel for the Opposite Party:

Code
of
Civil
Procedure-
Territorial
Jurisdiction 23 (3) 24- readwith section
21-A Hindu Marriage Act- Divorce
Proceeding pending before family court
judge, Meerut to Judge Family Court,
Gwaliyar (MP) can not be entertained by
High Court Allahabad.

Held- para 23

In view of the above, the present
transfer application seeking transfer of
the case from Meerut (State of UP) to
gwalior (State of MP) is not cognizable
by this Court.
Case law discussed:
AIR 1981 SC 1143

(Delivered by Hon'ble A.K. Yog, J.)

1. Brijesh Kumar Gupta, applicant
before this Court, has filed the present
Transfer Application under Section 23 (3)
and 24 of the Code of Civil Procedure
read with Section 21 A (B) of Hindu
Marriage Act praying for transferring
divorce petition no. 367 of 2001- Smt.
Poonam Gupta versus Brijesh Gupta,
under section 13 and 27, Hindu Marriage
Act pending in the Court of Principal
Judge. Family Court, Meerut to the Court
of VII- Additional District Judge, Gwalior
where Matrimonial petition no. 2A/2000-
Brijesh
Kumar
Gupta
versus
Smt.
Poonam Gupta under section 12. Hindu
Marriage Act (to declare the marriage
between the parties as void) is said to be
already pending since before the filing of
the aforementioned divorce petition by
the wife at Meerut.

2. In para 10 of the affidavit, filed in
support of the transfer application, the
applicant, Brijesh Kumar Gupta has
admitted that he had received notice of
the said matrimonial divorce petition no.
367 of 2001 (Annexure 2 to the affidavit)
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
460
to appear in the case on July 30, 2001
when an attempt for reconciliation was
made before the Family Court, Meerut.
He also admitted that Family Court
Meerut fixed 5.7.2002 vide its order dated
14.5.2002 and that the said court has
rejected his application for stay of the
proceedings not finding favour with the
prayer made by the said applicant (the
husband) vide application (paper no. 18
Ga) for transferring the matrimonial
divorce petition at Meerut to Gwalior.

3. From the facts, as stated in the
affidavit in support of the transfer
application, it is evident that husband
applicant has already submitted to the
transfer of the Family Court, Meerut by
joining proceedings.

Heard
learned
counsel
for
the
husband-applicant. Sri Vijay Prakash,
Advocate at length and perused the
record.

4. The learned counsel for the
husband applicant contends that the Court
below
(Family
court,
Meerut)
has
committed
illegality
in
rejecting
application filed by the husband applicant
for transferring divorce petition no. 367 of
2001 to the Court at Gwalior where
Matrimony- Petition No. 2 A/2000
(Annexure 1 to the affidavit), filed earlier
in point of time, is already pending.

5. Copy of the application (paper no.
18G) dated 14.5.2002 have been filed as
Annexure-1 to the affidavit wherein the
prayer is to the effect that proceedings of
matrimonial petition no. 367 of 2001
(Smt. Poonam Gupta versus Brijesh
Kumar Gupta) be stayed and transferred
to the Court of VII Additional District
Judge, Gwalior so that both the cases may
be heard together.

6. By means of the order dated
31.5.2002 the Family Court, Meerut has
held, while rejecting the said application
(18 Ga), that the said Court was not
competent to transfer the case as prayed
and it was open for the said husband
(opposite party in the Meerut case) to
seek desired relief by approaching the
Hon'ble High Court, Allahabad/Hon'ble
Supreme Court for the desired relief.

7. The learned counsel for the
husband-applicant, in support of his
prayer in the transfer application, referred
to the provision of Section 21-A. Hindu
Marriage Act, 1955 (as amended up to
date) called the Act.

Section 21 A of the Act is being
reproduced.

"21 A(1) Where-

(a) a petition under this Act has been
presented to a district court having
jurisdiction by a party to a marriage
praying
for
a
decree
for
judicial
separation under section 10 or a decree of
divorce under section 13 and
(b) another petition under this Act has
been presented thereafter by the other
party to the marriage praying for a decree
for judicial separation under Section 10 or
for a decree of divorce under Section 13
on any ground, whether in the same
district court or in a different district
court, in the same State or in a different
State, the petitions shall be dealtwith as
specified in sub section (2).

(2) In a case where sub section (1)
applies -
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2 All] Brijesh Kumar Gupta V. Smt. Poonam Gupta
461
(a) if the petitions are presented to the
same district court, both the petitions shall
be tried and heard together by that district
court.
(b) If the petitions are presented to
different district transferred to the district
court in which the earlier petition was
presented and both the petitions shall be
heard and disposed of together by the
district court in which the earlier petition
was presented.

(3) In a case where clause (b) of sub
section (2) applies, the court or the
Government
as
the
case
may
be
competent under the Code of Civil
Procedure, 1908, 5 of 1908) to transfer
any suit or proceeding from the district
court in which the later petition has been
presented to the district court in which the
earlier petition is pending shall exercise
its powers to transfer such later petition as
if it had been empowered so to do under
the said code."

8. Learned counsel for the applicant
submits that since a petition (for declaring
marriage between parties void) has been
presented prior in time at Gwalior under
section 12, Hindu Marriage Act, the
subsequent Matrimonial Divorce petition
at Meerut filed by the wife could not
proceed and it was incumbent upon the
Meerut Court to stay proceedings before it
and transfer the said petition to Gwalior.
In support of the above argument he has
referred to the expression' where in the
same State or in a different State.'
According to the learned counsel for the
applicant Section 21 A. of the Act
provides where conditions contemplated
under sub section (1) clause (a) & (b) are
fulfilled and in that situation, according to
him the petitions have to be dealt with as
specified in sub section (2) and since all
the conditions contained under Section 21
A (1) clause (a) & (b) of the Act are
specified in the present case, the court
below had no choice option but to resort
to sub section (2) of Section 21 A of the
Act. Referring to sub section (2) he
referred to clause (b) and sub section (3)
of Section 21 A of the Act, it is argued
that under sub section (3) of Section 21 A,
Meerut Court should have transferred the
case before it to the Gwalior Court.

9. Learned counsel for the husband-
applicant, further referred to Section 22 &
23, Code of Civil Procedure which are
reproduced:

22. "Where a suit may be instituted in any
one of two or more courts and is instituted
in one of such courts, any defendant, after
notice to the other parties, may at the
earliest possible opportunity and in all
cases where issues are settled at or before
such settlement, apply to have the suit
transferred to another Court, and the
Court to which such application is made,
after considering the objections of the
other parties (if any), shall determine in
which of the several courts having
jurisdiction the suit shall proceed."

23.(1) Where the several courts having
jurisdiction are subordinate to the same
Appellate Court, an application under
section 22 shall be made to the Appellate
Court.

(2) Where such Courts are subordinate to
different Appellate Courts but to the same
High Court, the application shall be made
to the said High Court.

(3)Where such Courts are subordinate to
different High Courts the application
shall be made to the High Court within
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the local limits of whose jurisdiction the
Court in which the suit is brought is
situate.

10. A bare reading of Section 22 and
23, Code of Civil Procedure go to show
that these provisions deal with an entirely
different contingency. Section 23 is
complementary provision to Section 22,
Code of Civil Procedure, as is evident
from the reading of sub section (1) of
Section 23. Further Section 22 and 23,
Code of Civil Procedure come into play
only in a situation when a suit may be
instituted in any one of two or more
Courts and is instituted in one of such
Courts, then Section 22 confers a right
upon any defendant to file an application
(in the Court specified under section 23
Code of Civil Procedure) to have the suit
transferred to some such another Court,
subject to fulfilment of other conditions
contained under Section 22 i.e. said
application is being filed at the earliest
possible opportunity and in all cases
where issues are settled at or before such
settlement. If such an application is being
filed by the defendant, the Court may,
after considering the objections of the
other parties, if any, shall determine in
which of the several courts having
jurisdiction, the suit shall proceed, if at all
be transferred from that Court to another
Court
(considering
the
attending
circumstances of a particular case.).

11. Sub section (3) of Section 23,
Code of Civil Procedure contemplates
that where two or more Courts where suit
could be instituted, are subordinate to
different High Courts, the application
shall be made to the High Court within
the local limits of whose jurisdiction the
court in which the suit is brought is
situate.

12. Thus it will be seen that Sections
22 and 23 code of Civil Procedure deals
with a situation where at suit can be filed
in two or more courts but it has been
instituted in any one or more courts, then
on the objection of Defendant it can be
directed to proceed in another such court.
These provisions do not at all deal with a
situation where two different suits have
been instituted in the Courts which are
subordinate to different High Courts. In
fact where two suits are instituted which
are within the territorial jurisdiction of
two different High Courts, the relevant
provisions, which shall come in play are
Sections 24 and 25 of the Code of Civil
Procedure which are also reproduced for
convenience -

"(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 trail 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 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.
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2 All] Brijesh Kumar Gupta V. Smt. Poonam Gupta
463
(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.

(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
under this section from a Court which has
no jurisdiction to try it.

25. (1) On the application of a party, and
after notice to the parties, and after
hearing such of them as desire to be
heard, the Supreme Court may at any
stage, if satisfied that an order under this
section is expedient for the ends of justice,
direct that any suit appeal or other
proceeding be transferred from a High
Court or other Civil Court in one State to
a High Court or other Civil Court in any
other State.

(2) Every application under this section
shall be made by a motion which shall be
supported by an affidavit.

(3) The Court to which such suit appeal
or other proceeding is transferred shall,
subject to any special directions in the
order of transfer, either retry it or
proceed from the stage at which it was
transferred to it.

(4) In dismissing any application under
this section, the Supreme Court may, if it
is of opinion that the application was
frivolous or vexations, order the applicant
to pay by way of compensation to any
person who has opposed the application
such sum, not exceeding two thousand
rupees, as it considers appropriate in the
circumstances of the case.

(5) The law applicable to any suit,
appeal or other proceeding transferred
under this section shall be the law which
the Court ink which the suit appeal or
other proceeding was originally instituted
ought to have applied to such suit, appeal
or proceeding.

13. It is, therefore, clear that in a
situation where two suits have been
instituted before different courts within
the territorial jurisdiction of two different
High Courts, the relevant provision for
seeking transfer is Section 25, Code of
Civil Procedure.

The aforesaid conclusion is clearly
borne out from the bare reading of sub
section (1) of Section 25 Code of Civil
Procedure.

14. Coming to the submission of the
learned counsel for the husband-applicant
that Hindu Marriage Act contains special
provision and confers power to transfer
petition in certain cases- including a case
in a situation existing in the present case,
Section 21 A of the Act, it will suffice to
mention that submission is itself bereft of
merit as it has been made ignoring the
provisions of sub section (3) of Section 21
A of the Act.

15. Sub- Section (3) of the Section
21 A of the Act provides that in a case
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where clause (b) of sub section (2)
applies, the Court or the Government as
the case may be competent under Code of
Civil Procedure, 1908 can entertain an
application to transfer any suit or
proceeding from the District Court in
which later petition has been presented to
the District Court in which earlier petition
is pending.

16. No provision or the Clause under
Section 21 A of the Act confers
jurisdiction upon a District Court or upon
the High Court to which such District
Court in subordinate to transfer a petition
to another District Court in which earlier
petition is pending in the territorial
jurisdiction of the State.

17. Submission of the learned
counsel for the husband-applicant is
completely devoid of merit as is evident
from the reading of afore quoted Sections
of the Act and the Code of Civil
Procedure.

18. Learned counsel for the husband
applicant has placed reliance upon the
case of Guda Vijaylakshmi V. Guda
Ramchandra Sekhara Sastry- AIR 1981
Supreme Court 1143.

19. I have carefully gone through the
aforementioned decision.

In para 3 of the said decision their
lordships
of
the
Apex
Court
noted..."....In the first place it is difficult
to
accept
the
contention
that
the
substantive provision contained in Section
25 CPC is excluded by reason of Section
21 of Hindu Marriage Act 1955.....In
terms Section 21 does not make any
distinction
between
procedural
and
substantive provisions of CPC and all that
it provides is that the Code as far as may
be shall apply to all the proceedings under
the Act...'

20. In para 4 their Lordships
observed- "So far as Section 21 A of
Hindu Marriage Act is concerned since
the marginal note of that section itself
makes it clear that it deals with power to
transfer petitions and direct their joint or
consolidated trial ' in certain cases' and is
not exhaustive...... This provision in
terms deals with the power of the
Government or the Court on whom
powers of transfer have been conferred by
the CPC as it then stood, that is to say, old
Sections 24 and 25 CPC. It does not deal
with the present Section 25 which has
been substituted by an amendment which
has come into force with effect from
February 1, 1977 (Section 11 of the
Amendment Act 104 of 1976), By the
amendment very wide and plenary power
has been conferred on this Court for the
first time to transfer any suit ,appeal or
other proceedings from one High Court to
another High Court or from one Civil
Court in one State to another Civil Court
in any other State such wide and plenary
power on this Court could not have been
in the contemplation of parliament at the
time enactment of Section 21 A of the
Hindu Marriage Act 1955. It is, therefore,
difficult to accept the contention that
Section 21 A of Hindu Marriage Act
excludes the power of transfer conferred
upon this Court by the present Section 25
of CPC in relation to proceedings under
that Act.'

Again in para 5 Apex Court held-

"such a view in our opinion is not
correct. As stated earlier, in the mater of
transfer of petitions for a consolidated
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2 All] Brijesh Kumar Gupta V. Smt. Poonam Gupta
465
hearing thereof Section 21 A cannot be
regarded as exhaustive for the marginal
note clearly suggests that the Section
deals with power to transfer petitions and
direct their joint and consolidated trial '
in certain cases" Moreover, it will
invariably be expedient to have a joint or
consolidated hearing or trial by one and
the same court of a husband's petition for
restitution of conjugal rights on the
ground that the wife has withdrawn from
his society without reasonable excuse
under Section 9 of the Act and the wife's
petition for judicial separation against
her husband on ground of cruelty under
Section 10 of the Act in order to avoid
conflicting decisions being rendered by
two different Courts. In such a situation
resort will have to be had to the powers
under sections 23 to 25 of the Civil
Procedure Code for directing transfer of
the petitions for a consolidated hearing,
Reading Section 21 A in the manner done
by the Nagpur Bench which leads to
anomalus results has to be avoided."

21. Hon'ble Amrendra Nath Singh
concurring with the view expressed by
Hon'ble V.D.Tulzapurkar in para 3,4 and
5 reproduced above, in paras 8 and 9 of
the judgment, noted as follows -

"In my opinion, this argument of the
learned counsel for the respondent
husband is without any substance. I have
earlier set out Section 25 of the Code of
Civil Procedure and I have pointed out
that an analysts of the section makes it
abundantly clear that for the ends of
justice, wide power and jurisdiction have
been conferred on this Court in the matter
of transfer of any suit, appeal or
proceeding from any High Court or other
Civil court in one State. A suit or a
proceeding for divorce under the Hindu
Marriage Act in a civil court is
necessarily a suit or proceeding and must
on a plain reading of Section 25 (1) of the
Code of Civil Procedure be held to come
under Section 25 (1) of the Code, as the
said section speaks of any suit, appeal or
other
proceeding.
This
Court
must
necessarily
enjoy
the
power
and
jurisdiction under the said provisions of
transferring such a suit or proceeding for
the ends of justice, unless the power and
jurisdiction of this Court are specifically
taken away by any statute. If the
jurisdiction clearly conferred on any
Court has to be ousted, the exclusion of
such jurisdiction must be made in clear
and unequivocal terms. Section 21 of the
Hindu Marriage Act does not deal with
the question of jurisdiction of any Court.
As no procedure with regard to the
proceedings under the Hindu Marriage
act has been laid down in the said Act.
Section 21 of the Act only provides that '
all proceedings under this Act shall be
regulated as far as may be by the Code of
Civil Procedure."

Section 21 of the Hindu Marriage
Act cannot be construed to exclude the
jurisdiction conferred on this Court under
Section 25 of the Code of Civil Procedure.
It does not become necessary in the
instant case to decide whether the
provision in relation to jurisdiction of this
Court contained in Section 25 of the Code
of Civil Procedure is one of substantive
law or it belongs to the domain of
procedure. Even if I accept the argument
of the learned counsel for the respondent
that Section 25 does not form any part of
the procedural law and is a part of the
substantive law. I am of the opinion, that
jurisdiction conferred on this Court by
Section 25 of the Code of Civil Procedure
is not in any way, affected by Section 21
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
466
of the Hindu Marriage Act which as I
have already noted only provides that all
proceedings under the Hindu Marriage
Act shall be regulated as far as may by
the Code of Civil Procedure, 1908.

9.S. 21 A of the Hindu Marriage Act
in my opinion, has indeed no bearing on
the question of jurisdiction conferred on
this Court under Section 25 of the Code of
Civil Procedure Section 21 A of the Hindu
Marriage Act makes provisions for
transfer of petitions specified in the said
section and for hearing and disposal of
such petitions together by the District
Court in which the earlier petition has
been presented. Such power has been
conferred on the Court or the Government
Section 21 A has no application to the
case of transfer of any suit or proceeding
from one State to another. As I have
earlier noted very wide power and
jurisdiction have been conferred on this
Court in the interest of justice for
transferring
any
appeal,
suit
or
proceeding from one State to another
under Section 25 of the Code of Civil
Procedure. In the instant case, the
petitioner has applied for transfer of the
suit pending in the District at Eluru in the
State
of
Andhra
Pradesh
to
the
appropriate court at Udaipur in the State
of Rajsthan. I am, therefore, of the
opinion that this Court enjoys the power
and
jurisdiction
to
entertain
this
application under Section 25 of the Code
of Civil Procedure and Sections 21 and
21 A of the Hindu Marriage Act do not, in
any way, exclude, affect or curtail the
power conferred on this Court under
Section 25 of the Code of Civil Procedure.
I may incidentally add that the present
Section 25 in the Code of Civil Procedure
came into force after Sections 21 and 21
A have been incorporated in the Hindu
Marriage Act, 1955".

(Emphasis laid down by me)

22. The aforesaid decision in the
case
of
G.
Vijayalakshmi
(supra)
negatives the contention of the learned
counsel for the husband-applicant before
this Court.

23. In view of the above, the present
transfer application seeking transfer of the
case from Meerut (state of UP) to Gwalior
(State of MP) is not cognizable by this
Court.

24.

Transfer
application
is,
accordingly, rejected in limine as not
cognizable.

No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.7.2002

BEFORE
THE HON'BLE M.KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 21348 of 2001

Braham Shanker Tripathi
...Petitioner
Versus
State of U.P. and another ...Respondent

Counsel for the Petitioner:
Sri W. Khan
Sri J.H. Khan

Counsel for the Respondent:
S.C.

Constitution of India, Article 226- where
a person is appointed according to the
Rules his seniority is to be computed