# Jabiullah & Anr v. Sakir

- **Citation:** (2022) 10 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-21
- **Case number:** Transfer Application (Civil) No. 425 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jabiullah-anr-v-sakir-47727
- **Pages:** 3

## Headnote

Civil Law - Civil Procedure Code, 1908
- Section 24: - Transfer Application - to
transfer the original Suit from district Basti
to new district Sant Kabir Nagar - on the
ground that the property in question & both
the parties of suit are belongs to district
Sant
kabir
Nagar
-
question
of
maintainability - suit was instituted in year
1994 at a time when the new district Sant
Kabir Nagar had not been exist later on, in
year 2008 said new district has been carved
out - court find that, the venue of litigation,
subject to territorial and other jurisdiction,
ought to be convenient to parties - thus,
transfer application is succeeds and is
allowed - However, since suit is pending
since last 27 years - therefore, the Trial
Court shall proceed with the suit and shall
conclude the trial within four months -
direction accordingly.(Para - 6, 7, 9)

Transfer Application Allowed. (E-11)

## Text

10 All. Jabiullah & Anr. Vs. Sakir
357
death of his Counsel, both father and son,
instructed to appear in the case, yet those
events too do not explain the long time
period of 15 years and more in moving this
Court against the order impugned.

22. In the considered opinion of this
Court, there is no sufficient cause made out
to condone the delay on the basis of which
this Court may exercise its discretion in
favour of the applicant-revisionist.

23. The application is, accordingly,
dismissed.

Order
on
CIVIL
REVISION
DEFECTIVE No. - 253 of 2015

24. The delay condonation application
filed in aid of the present belated revision
having been rejected by my order of date,
the memo of revision is rejected as barred
by time.
----------
(2022) 10 ILRA 357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.09.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Transfer Application (Civil) No. 425 of 2021

Jabiullah & Anr. ...Applicants
Versus
Sakir ...Respondent

Counsel for the Appplicants:
Sri Hanuman Deen

Counsel for the Respondent:
Sri Sheetala Prasad Pandey

Civil Law - Civil Procedure Code, 1908
- Section 24: - Transfer Application - to
transfer the original Suit from district Basti
to new district Sant Kabir Nagar - on the
ground that the property in question & both
the parties of suit are belongs to district
Sant
kabir
Nagar
-
question
of
maintainability - suit was instituted in year
1994 at a time when the new district Sant
Kabir Nagar had not been exist later on, in
year 2008 said new district has been carved
out - court find that, the venue of litigation,
subject to territorial and other jurisdiction,
ought to be convenient to parties - thus,
transfer application is succeeds and is
allowed - However, since suit is pending
since last 27 years - therefore, the Trial
Court shall proceed with the suit and shall
conclude the trial within four months -
direction accordingly.(Para - 6, 7, 9)

Transfer Application Allowed. (E-11)

(Delivered by Hon'ble J.J. Munir, J.)

1. This is an application, seeking
transfer of Original Suit No.1099 of 1994,
Sakir Vs. Ilake and others, from the Court
of the Additional Civil Judge (Jr. Div.) Vth,
Basti be transferred to the Court of
competent jurisdiction at Sant Kabir Nagar.

2. Heard Mr. Hanuman Deen, learned
Counsel for the applicants and Mr. Sheetala
Prasad Pandey, learned Counsel appearing
on behalf of the opposite party.

3. The opposite party has not filed a
counter affidavit. As such, the averments in
the affidavit remain unrebutted. However,
the learned Counsel for the opposite party
vehemently opposes the prayer for transfer
on ground that will shortly be indicated.

4. According to the applicants, both
parties are residents of Sant Kabir Nagar
and the property is also located there. The
suit was instituted prior to carvation of new
District Sant Kabir Nagar in the year 1997.
The Court was established later on. The
submission is that now the said case ought
358 INDIAN LAW REPORTS ALLAHABAD SERIES
to be transferred to the new judgeship of
Sant Kabir Nagar.

5. The learned Counsel for the
opposite party submits that the ground on
which transfer sought is not tenable,
because the trial of the suit at Basti is at a
fairly advanced stage, where witnesses
have been examined.

6. Upon consideration of the entire
facts and circumstances, it is evident that
the suit was instituted at a time when the
new district of Sant Kabir Nagar had not
been carved out of the existing District
Basti. It is also not in dispute that the new
district of Sant Kabir Nagar has been
carved out in the year 2008. It is also
common ground between parties that the
suit property is located in the district of
Sant Kabir Nagar now; not Basti. Quite
apart, there is an averment in Paragraph
No. 7 of the affidavit filed in support of the
transfer application that both parties reside
at District Sant Kabir Nagar and face much
trouble in reaching the Court at Basti. The
distance of District Court, Sant Kabir
Nagar from the residence of both parties is
about 10 kilometers. Moreover, the Courts
at District Sant Kabir Nagar are now well
established
and
promptly
delivering
judgments. It is also the applicants' case
that the suit, that was instituted in the year
1994, is pending at Basti for the last 27
years.

7. This Court is of opinion that
looking to the entire circumstances, the
Court at Sant Kabir Nagar appears to be the
Court within the local limits of which the
immovable property, subject matter of the
suit, is situate. More than that, both parties
live in the district of Sant Kabir Nagar at a
place that is close by to the new District
Court, that has been established there. The
venue of litigation, subject to territorial and
other jurisdiction, ought to be that which is
convenient to parties. The contention of the
opposite party that the trial of the suit is at
a fairly advanced stage at Basti, would be
relevant as a plea against transfer, if and
only if the opposite party were able to
demonstrate that the Judge at Basti, before
whom the witnesses have been examined,
is the same learned Judge, who has heard
these witnesses. This is neither the pleaded
case of the opposite party, who has not filed
a counter affidavit in any case nor any
material on record pointed out that the
ongoing trial at Basti is before a Judge,
who has heard all witnesses and can deliver
judgment. If some other Judge, different
from the one who has heard witnesses at
Basti, is to deliver judgment, it is of no
consequence, whether the suit is heard at
Basti or Sant Kabir Nagar. A Trial Judge
gains his peculiar position by the fact that
he is the same Judge, who has heard
witnesses. If that be not so, the Trial Judge
hardly fills the description of one. Since
there is nothing to show that the Judge at
Basti, who is hearing the matter is indeed
the Judge, who has heard all witnesses or a
substantial number of them, the Court at
Sant Kabir Nagar, that is located closer to
the residence of parties and is also the
Court of territorial jurisdiction, ought to try
the suit.

8. In the circumstances, this transfer
application succeeds and is allowed.

9. Original Suit No.1099 of 1994,
Sakir Vs. Ilake and others, is withdrawn
from the file of the Additional Civil Judge
(Jr. Div.) Vth, Basti and transferred to the
District Judge at Sant Kabir Nagar, who
shall assign the suit to the Court of
competent
jurisdiction
for
trial
in
accordance with law. In the circumstances
10 All. Deepak & Anr. Vs. State of U.P.
359
that the suit is pending for the past 27
years, it is ordered that the Trial Court shall
proceed with the suit, fixing two dates of
effective hearing every week and shall
conclude the trial within four months next
after hearing parties and their witnesses,
who have already not been examined. The
District Judge, Basti shall cause the records
of the case to be transmitted forthwith to
the District Judge, Sant Kabir Nagar. .

10. Let a copy of this order be
communicated to the Additional Civil
Judge (Jr. Div.) Vth, Basti through the
learned District Judge, Basti, the District
Judge, Basti and the District Judge, Sant
Kabir
Nagar
by
the
Registrar
(Compliance).
----------
(2022) 10 ILRA 359
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Appeal No. 1005 of 2013

Deepak & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Shailendra Kumar Verma, Sri Sheshadri
Trivedi, Sri Satish Trivedi(Sr. Adv.)

Counsel for the Opp. Party:
Govt. Advocate

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506, - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
evaluation of evidences - offence of murder -
FIR - informant alleged that his niece was killed
by both of the accused by pouring kerosene oil
on her and set her ablaze - dying declaration is
the sole basis of conviction - distinction between
'murder' and 'culpable homicide' - admittedly
death of deceased was a homicidal death since
she died after 17 days of burning incident - in
post mortem-report cause of death was
septicaemia shock due to ante mortem flame
burning - hence, instant case is falls within
ambit of section 304 IPC not under section 302
IPC - quantum of sentence - impugned
conviction & sentences u/s 302/34 IPC is liable
to be converted into u/s 304(part-1) IPC - since,
sentence to undergone more than 10 years of
incarceration with remission court maintain the
fine and default sentences for section 452 and
354 of IPC - appeal partly allowed.
(Para - 45, 46, 47, 53, 54, 55, 56)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506 - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -
evaluation of evidences - offence of murder -
dying declaration - principle for accepting dying
declaration - if dying declaration is true, reliable
and has been recorded in accordance with
established
practice
and
principles,
its
correctness & authenticity cannot be challenged
and further, hostility of witnesses of fact cannot
demolish the value & reliability of dying
declaration of the deceased.
(Para - 29, 30, 31)

(C) Criminal Law - Criminal Procedure
Code, 1973 - Section - 161 & 313 - Indian
Penal Code, 1860 - Sections 34, 299,
300(4), 302, 304, 326, 354, 452, 504 &
506 - Scheduled Castes and Scheduled
Tribes Prevention of Atrocities Act, 1989 -
Section- 3(2)(V), - Indian Evidence Act,
1872 - Sections 32 & 60: - Criminal Appeal -
Conviction & Sentence - Life imprisonment -