# Dr. Ajay Chaturvedi v. Smt. Shobhana

- **Citation:** (2014) 3 ILRA 1456
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-11-26
- **Case number:** Special Appeal No. 1037 of 2014
- **Bench:** Arun Tandon, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-ajay-chaturvedi-v-smt-shobhana-43040
- **Pages:** 4

## Headnote

High Court Rules, 1952-Chapter VII-Rule
V-Special
Appeal-maintainability-when
order passed by learned Single Judge u/s
24 C.P.C.-appealable? held-'No'-power of
superintendence-exercised
by
Single
Judge-special appeal not maintainable.
Held: Para-11
In our opinion, the judgment/order
made on the petition under Section 24 of
the CPC only a judgment/order of the
learned Single Judge in exercise of
power of superintendence and nothing
beyond it. In view of the interpretation
of Chapter VIII Rule 5 of the Rules as
above no special appeal against the
judgment/order made in exercise of
power of superintendence would be
maintainable. We hold that the present
special appeal as filed by the appellant is
not maintainable.
Case Law discussed:
AIR 2001 SC page 883; 1963 SCC ONLINE
Mad. 260 (1965) 78 LW 133 (Mad.).

## Text

1456
 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners-appellants was duly heard and
has been finally disposed of by the
impugned judgment and order. In any
event, for the sake of rendering a final and
complete adjudication of the issues raised,
we have considered all the submissions
which have been urged on behalf of the
appellants and find no substance in them.
The special appeal is, accordingly,
dismissed. There shall be no order as to
costs.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2014
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.
Special Appeal No. 1037 of 2014
Dr. Ajay Chaturvedi
 Appellant
Versus
Smt. Shobhana
...Respondent
Counsel for the Appellant:
Sri Suyash Pandey, Sri N.L. Pandey
Counsel for the Respondents:
Sri Rupak Chaubey
High Court Rules, 1952-Chapter VII-Rule
V-Special
Appeal-maintainability-when
order passed by learned Single Judge u/s
24 C.P.C.-appealable? held-'No'-power of
superintendence-exercised
by
Single
Judge-special appeal not maintainable.
Held: Para-11
In our opinion, the judgment/order
made on the petition under Section 24 of
the CPC only a judgment/order of the
learned Single Judge in exercise of
power of superintendence and nothing
beyond it. In view of the interpretation
of Chapter VIII Rule 5 of the Rules as
above no special appeal against the
judgment/order made in exercise of
power of superintendence would be
maintainable. We hold that the present
special appeal as filed by the appellant is
not maintainable.
Case Law discussed:
AIR 2001 SC page 883; 1963 SCC ONLINE
Mad. 260 (1965) 78 LW 133 (Mad.).
(Delivered by Hon'ble Arun Tandon, J.)
1. Heard learned counsel for the
parties.
2. This special appeal under Chapter
VIII Rule 5 of the High Court Rules, 1952
(hereinafter referred to "as the Rules") is
directed against the order of the learned
Single Judge, dated 28.10.2014 wherein
learned Single Judge in exercise of
powers under Section 24 of the Code of
Civil
Procedure,
1908
(hereinafter
referred to "as the CPC") has been pleased
to direct transfer of Original Suit No.956
of 2010 filed by Dr. Ajay Chaturvedi, the
appellant before this Court, under Section
13 of the Hindu Marriage Act from the
Court of 1st Additional District Judge,
Bulandshahar to the competent Court at
Moradabad.
3. A preliminary objection has been
raised with regard to the maintainability
of the present special appeal. The issue so
raised revolves around the interpretation
of the provisions of Chapter VIII Rule 5
of the Rules. It would be appropriate to
reproduce the Rules which read as
follows:
5. Special Appeal.- An appeal shall
lie to the Court from a judgment (not
being a judgment passed in the exercise of
Appellate Jurisdiction in respect of a
decree or order made by a Court subject
to the Superintendence of the Court and
3 All].
 Dr. Ajay Chaturvedi Vs. Smt. Shobhana
1457
not being an order made in the exercise of
revisional jurisdiction or in the exercise
of its powers of Superintendence or in the
exercise of criminal jurisdiction [or in the
exercise of jurisdiction conferred by
Article 226 or Article 227 of the
Constitution in respect of any judgment,
order or award (a) of a tribunal, Court or
statutory arbitrator made or purported to
be made in the exercise or purported
exercise of jurisdiction under any Uttar
Pradesh Act or under any Central Act,
with respect to any of the matters
enumerated in the State List or the
Concurrent List in the Seventh Schedule
to the Constitution or (b) of the
Government or any Officer or authority,
made or purported to be made in the
exercise
or
purported
exercise
of
Appellate
or
Revisional
Jurisdiction
under any such Act] of one Judge]"
4. From a simple reading of the
Rules, it is apparent that all the judgment
of the learned Single Judge of this Court
are appealable before a division Bench of
the Court except for the category of the
judgments which stands excluded from
the purview of such special appeal. The
Rule in fact excludes judgments against
which Special Appeal will not be
maintainable. Therefore, what is to be
seen is as to whether the judgment/order
made in exercise of the powers under
Section 24 of the CPC stands within there
excluded from the provisions of the
Chapter VIII Rule 5 of the Rules or not?
5. A division Bench of this Court in
the case of Vajra Yojna Seed Farm
Kalyanpur (M/s) and others Vs. Presiding
Officer, Labour Court II and another
reported in 2003 (1) U.P.L.B.E.C. page
490 has laid down that ordinarily,
following
categories
of
the
judgments/orders stand excluded from the
purview of the special appeal under
Chapter VIII Rule 5 of the Rules which
reads as under:
"(i) Judgment of one Judge passed in
the exercise of appellate jurisdiction in
respect of a decree or order made by a
Court subject to the Superintendence of
the Court.
(ii) Judgment of one Judge in the
exercise of revisional jurisdiction.
(iii) Judgment of one Judge made in
the
exercise
of
its
power
of
superintendence.
(iv) Judgment of one Judge made in
the exercise of criminal jurisdiction.
(v) Judgment or order of one Judge
made in the exercise of jurisdiction
conferred by Article 226 or Article 227 of
the Constitution in respect of any
judgment, order or award of a Tribunal,
Court or Statutory Arbitrator made or
purported to be made in the exercise or
purported exercise of jurisdiction under
any Uttar Pradesh Act or under any
Central Act, with respect of any of the
matters enumerated in State List or
Concurrent List.
(vi) Judgment or order of one Judge
made in exercise or jurisdiction conferred
by Article 226 or Article 227 of the
Constitution in respect of any judgment,
order or award by the Court or any
officer or authority made or purported to
be made in the exercise or purported
exercise
of
appellate
or
revisional
jurisdiction under any Uttar Pradesh Act
or under Any Central Act."
6. Another division Bench in the
case of Amit Khanna Vs. Smt. Suchi
Khanna reported in 2008 (10) ADJ page
426 has held that the order made under
Section 24 of the CPC does not qualify as
1458
 INDIAN LAW REPORTS ALLAHABAD SERIES
a judgment and, therefore, no appeal
under Chapter VIII Rule 5 of the Rules is
maintainable.
7. Learned counsel for the appellant
vehemently submitted that the division
Bench of this Court has not laid down
correct law in the case of Amit Khann
(supra) inasmuch as the order of the
learned Single Judge made on the
application under Section 24 of the CPC
will qualify as a judgment and, therefore,
the special appeal would be maintainable.
For the propositions, he has placed
reliance upon the judgment of the Apex
Court in the case of Employer In Relation
To
Management
Of
Central
Mine
Planning and Design Institute Ltd. Vs.
Union of India reported in AIR 2001 SC
page 883.
8. The contention so raised on behalf
of the appellant may not detain the Court
for a long inasmuch as the exercise of
powers by the High Court under Section
24 of the CPC is an exercise of power of
superintendence.
Therefore,
the
judgment/order of the learned Single
Judge on an application under Section 24
CPC would being an order made in
exercise of power of superintendence
stands excluded from the purview of
special appeal as provided for under
Chapter VIII Rule 5 of the Rules.
"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 subsection
(1),
the
Court
which
1[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.
3[(5) A suit or proceeding may be
transferred under this section from a
Court which has no jurisdiction to try it.]"
9. From a simple reading of the
Section 24 CPC, it is clear 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
3 All]. Shri Ram Kushwaha Vs. U.P. State Sugar Corporation Ltd. Merrut & Anr.
1459
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.
10. The power of transfer of suit and
other proceedings is an exercise of power
of superintendence. The legal position in
that has been explained by the Madras
High Court in the case of P. Karuppiah
Ambalam Vs. Ayya Nadar reported in
1963 SCC ONLINE Mad. 260; (1965) 78
LW 133 (Mad.) relevant portion of the
judgment is reproduced hereinbelow:
"... Section 24 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. In terms S. 24
confers a very wide power, and it is
intended to enable the two superior courts
mentioned in it, in their general power of
superintendent over subordinate courts,
or in the interest of justice to redistribute
all civil work of whatever nature pending
in subordinate courts for the purpose of
disposal. It has also to be used where the
interests of justice require, that a
particular case should be transferred
from one Subordinate Court. The subject
matter of the transfer referred in S. 24
C.P.C.,
as
suit,
appeal
or
other
proceeding, is of the widest kind, and
there is no reason why execution
proceedings should be excluded from the
scope of other proceeding mentioned in
this section. Considering also the general
purpose
of
superintendence,
and
furthering the interests of justice for
which this section is enacted, there is no
reason why execution proceedings should
be excluded from its scope."
11.

In
our
opinion,
the
judgment/order made on the petition
under Section 24 of the CPC only a
judgment/order of the learned Single
Judge
in
exercise
of
power
of
superintendence and nothing beyond it. In
view of the interpretation of Chapter VIII
Rule 5 of the Rules as above no special
appeal against the judgment/order made
in exercise of power of superintendence
would be maintainable. We hold that the
present special appeal as filed by the
appellant is not maintainable.
12. The present special appeal is
dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2014
BEFORE
THE HON'BLE TARUN AGARWALA, J.
THE HON'BLE SHRI NARAYAN SHUKLA, J.
First Appeal From Order No. 1060 of 2004
Shri Ram Kushwaha
 Appellant
Versus
U.P. State Sugar Corporation Ltd. Meerut
& Anr.
 Opp. Parties
Counsel for the Appellant:
Sri K.S. Kushwaha, Sri Manu Khare, Sri
P.V. Singh
Counsel for the Opp. Parties:
Sri R.K. Srivastava, Sri Pranav Chaudhary,
Sri Rakesh Bagga, Sri S. Bagga
Evidence
Act-Section-74,77-disability
certificate-being
public
document-not
required
to
be
proved-on
40%
permanent disability-petitioners claim
allowed partly-appeal for enhancement