# Jaikaran Singh & Ors v. Balakram & Ors

- **Citation:** (2020) 7 ILRA 120
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-13
- **Case number:** Matters Under Article 227 No. 8287 of 2019
- **Bench:** Siddharth Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jaikaran-singh-ors-v-balakram-ors-45846
- **Pages:** 7

## Headnote

A. Constitution of India - Article 227 -
Maintainability - Transfer Order of Lower Court
- An Application under Article 227 did not lie
against an order passed under Section 24 of the
CPC by the District Court - Since the High Court
had not to sit in appeal or under its supervisory
jurisdiction over the order passed by the District
Court while rejecting a Transfer Application, and
in fact it had to independently decide the
Transfer Application afresh, the Application
under Article 227 of the Constitution of India is
not maintainable. (Para 10 and 15 )
B. Civil Law - Civil Procedure Code, 1908 -
Section 24 - Transfer of case - Jurisdiction of
High Court - Judicial Hierarchy - 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 -
However, the parties should approach the
District Court first and thereafter the High Court
as judicial property demand that judicial
hierarchy be maintained - Held - 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.
(Para 10 and 11)
Petition dismissed (E-1)
Cases relied on :-

## Text

120 INDIAN LAW REPORTS ALLAHABAD SERIES
factor so the case calls for a more cautious
approach...."

13. The importance of discretion of
the court was emphasized by the Hon'ble
Supreme Court in New India Insurance
Co. Ltd. V. Smt. Shanti Misra reported at
AIR 1976 SC 237 by holding that
discretion given by section 5 should not be
defined or crystallized so as to convert a
discretionary matter into a rigid rule of law.
The express "sufficient cause" should
receive a liberal construction.

14. The Hon'ble Supreme Court in
Shakuntala Devi Jain V. Kuntal Kumari
reported at AIR 1969 SC 575, held that
unless want of bona fides of such inaction
or negligence as would deprive a party of
the protection of section 5 is proved, the
application must not be thrown out or any
delay can not be refused to be condoned.

15. Adopting a justice oriented
approach to delay condonation application
the Hon'ble Supreme Court in O.P.
Kathpalia V. Lakhmir Singh reported in
AIR 1984 SC 1744 held that if the refusal
to condone the delay results in grave
miscarriage of justice, it would be a ground
to condone the delay.

16. The petitioner was not substituted
in place of his father even before this Court
confirms the fact that the father of the
petitioner was prosecuting the first appeal
and not the petitioner. There is nothing
abnormal in this conduct. In fact it is the
most natural manner in which litigations
are prosecuted in this State.

17. The petitioner is the sole heir of
deceased/Vijay Pal Singh whose lands were
acquired. The petitioner is entitled to
prosecute the claim for compensation on
behalf of his father and is liable to be
substituted. There was no inordinate delay
on part of the petitioner to institute the
substitution application. The petitioner was
reasonably diligent to his cause. Part of the
delay
was
caused
by
systematic
deficiencies. Substantive rights of the
petitioner are engaged in the controversy
and in these facts rejection of the delay
condonation application has resulted in a
serious miscarriage of justice.

18. The authorities cited in the
preceding part of the judgment are thus
squarely applicable to the facts of the case.

19. The delay condonation application
is liable to be allowed. The delay
condonation application is allowed.

The
order
dated
13.12.2019
passed
by
the
learned
reference
court/learned Additional District Judge,
Moradabad is set aside.

20. The matter is remitted to the
learned reference court/learned Additional
District Judge, Moradabad to execute the
following direction:

21.

The
learned
reference
court/learned Additional District Judge,
Moradabad shall decide the substitution
application immediately upon receipt of a
certified copy of this order.

22. The petition is allowed.
----------
(2020)07ILR A120
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2020

BEFORE

THE HON'BLE SIDDHARTH VARMA, J.
7 All. Jaikaran Singh & Ors. Vs. Balakram & Ors.
121
Matters Under Article 227 No. 8287 of 2019
(CIVIL)

Jaikaran Singh & Ors. ...Petitioners
Versus
Balakram & Ors. ...Respondents

Counsel for the Petitioner:
Sri Virendra Kumar Jaiswal, Sri Ashok
Kumar Singh

Counsel for the Respondents:

A. Constitution of India - Article 227 -
Maintainability - Transfer Order of Lower Court
- An Application under Article 227 did not lie
against an order passed under Section 24 of the
CPC by the District Court - Since the High Court
had not to sit in appeal or under its supervisory
jurisdiction over the order passed by the District
Court while rejecting a Transfer Application, and
in fact it had to independently decide the
Transfer Application afresh, the Application
under Article 227 of the Constitution of India is
not maintainable. (Para 10 and 15 )
B. Civil Law - Civil Procedure Code, 1908 -
Section 24 - Transfer of case - Jurisdiction of
High Court - Judicial Hierarchy - 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 -
However, the parties should approach the
District Court first and thereafter the High Court
as judicial property demand that judicial
hierarchy be maintained - Held - 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.
(Para 10 and 11)
Petition dismissed (E-1)
Cases relied on :-
1. Sunita Devi Vs Ram Kripal & anr. (2015) 2
AWC 1543
2. Dadi Jagannadhan Vs Jammulu Ramulu Vs &
ors. (2001) 7 SCC 71
3. Asrumati Debi Vs Kumar Rupendra Deb
Raikot & ors. AIR (1953) SC 198

(Delivered by Hon'ble Siddharth Varma, J.)

1. This application under Article 227
of the Constitution of India has been filed
against the order dated 4.10.2019 by which
the District Judge Ghaziabad had refused to
interfere in the Transfer Application filed
by the petitioner. A further prayer in the
application is that the Civil Appeal No. 8 of
2019 (Balakram and others vs. Jaikaran
Singh and others) be Transferred from the
Court of 4th Additional District Judge,
Ghaziabad, to any other Court of the
judgeship of Ghaziabad.

2. Even before notices could be issued
to the respondents, the learned Additional
Chief
Standing
Counsel
Sri
Neeraj
Upadhyay opposed the filing of the instant
application under Article 227 of the
Constitution of India and, therefore, before
entering into the merits of the case, the
Counsel were heard with regard to the
maintainability of the application under
Article 227 of the Constitution of India.

3. Learned counsel for the petitioner
relied upon Sunita Devi vs. Ram Kripal and
another1 and submitted that an application
when was rejected by the District Court
under Section 24 of the C.P.C., a further
application under Section 24 of the C.P.C.
was not maintainable before the High
Court. Learned counsel relied upon the
provisions of Section 24 of the C.P.C. and
submitted that when the provisions of
Section 24 of the C.P.C. itself stated that an
Application for Transfer or withdrawal of
the Suit could be filed before the High
Court "or" the District Court then the
provision had to be construed strictly and
relying
upon Dadi
Jagannadhan v.
122 INDIAN LAW REPORTS ALLAHABAD SERIES
Jammulu Ramulu and Other2 submitted
that when only one Court could be
approached because of the word "or"
between the word "High Court' and
"District Court" then a party could
approach either the High Court or the
District Court and it could not approach the
High Court after approaching the District
Court under the same jurisdiction. He
submitted that the High Court under its
supervisory powers could look into the
judgement of the District Court but it could
not entertain a fresh Transfer Application
when once it had been rejected by the
District Court.

4. Learned counsel submitted that
legislature chose its word very carefully
and the Court could not add words to a
statute and, therefore, he submitted that
when it was provided that either the High
Court or the District Court could transfer a
Suit then, when, once the application was
rejected by the District Court then the same
application could not be filed before the
High Court.

5. Learned Additional Chief Standing
Counsel, however, in reply, submitted that
even though the order passed by the learned
District Judge was final it did not decide
any controversy between the parties when
it terminated the proceeding with regard to
the Transfer Application. No litigation
between the parties was brought to an end.
Learned Standing Counsel submitted that
an order in a Transfer Application was
virtually an administrative order passed on
the judicial side.

6. Learned Standing Counsel also
submitted that when Section 24 of the
C.P.C used the words "High Court or the
District Court" then it did not mean that
when the application was filed before the
District Court then the filing of the
application before the High Court was
excluded. Learned Standing Counsel relied
upon Sections 438 and 439 of the Cr.P.C.
and submitted that an anticipatory bail or a
bail application could be filed in both the
District Court and the High Court, one after
the other. Learned Standing Counsel
submitted that if the provisions of Order IX
Rule 13 of the CPC were perused then it
would
become
clear
that
legislature
intended that after an Appeal had been
disposed of against a decree alleged to have
been passed ex parte then no application
lay under the Order IX Rule 13 of the CPC
for setting aside the ex parte decree and,
therefore, he submitted that unless the
filing of the application under Section 24
was excluded by any provision of Section
24 of the CPC before the High Court after
the District Court had rejected an earlier
application, the transfer application could
be filed one after the other in the two
different Court. He, therefore, submitted
that when the application was rejected by
the District Court it could definitely be
independently filed before the High Court.

7. Learned Standing Counsel further
submitted that if the application under
Section 24 of the C.P.C. had decided any
litigation between the parties then of-course
the supervisory jurisdiction under Article
227 could be invoked. Learned Standing
Counsel submitted that a supervisory
jurisdiction could have then looked into the
merits of the judgement passed by the
District Court. In a Transfer Application,
he submitted that, when the merits of the
Transfer Application had been looked into
by the District Court and an order had been
passed, then the High Court was not
required to look into the merits of the order
passed by the District Court but it was
required to look into the merits of the
7 All. Jaikaran Singh & Ors. Vs. Balakram & Ors.
123
Transfer Application afresh as had been
filed under Section 24 of the CPC before it.
Learned Standing Counsel submitted that
under Article 235 of the Constitution of
India the High Court had power of
superintendence over its District Courts
and, therefore, it was aware of how judges
in the District Court were functioning and
had a wider vista before it of its judges in
the State than was available with District
Courts. Therefore, the Transfer Application
which
was
filed
after
the
transfer
application was rejected by the District
Court was virtually a fresh application filed
before the High Court. It was not in any
way filed under the supervisory jurisdiction
whereby the order of the District Judge
passed on the Transfer Application could
be looked into and examined on the judicial
side.

8. Learned Standing Counsel further
submitted that since there was a judicial
hierarchy in the State it was proper that
after the party had appraoched District
Court it came to the High Court and not
vice-versa otherwise it would create an
anarchy. He further submitted that if the
parties were not satisfied by the order
passed by the High Court under Section 24
of the C.P.C. then they could go before the
Supreme Court under Section 25 of the
CPC. To substantiate that an order passed
under Section 24 of the C.P.C. did not
adjudicate any rights of the parties learned
Standing Counsel relied upon a judgement
passed in Asrumati Debi vs. Kumar
Rupendra Deb Raikot And others3 and
specifically relied upon paragraph 13 of
that judgement which is being reproduced
here as under:-

13. The question that requires
determination in an application under clause
13 of the Letters Patent is, whether a
particular suit should be removed from any
Court which is subject to the superintendence
of the High Court and tried and determined
by the latter as a court of extraordinary
original jurisdiction. It is true that unless the
parties to the suit are agreed on this point,
there must arise a controversy between them
which has to be determined by the court. In
the present case, a single Judge of the High
Court has decided this question in favour of
the plaintiff in the suit; but a decision on any
and every point in dispute between the parties
to a suit is not necessarily a 'judgment'. The
order in the present case neither affects the
merits of the controversy between the
parties in the suit itself, nor does it
terminate or dispose of the suit on any
ground. An order for transfer cannot be
placed in the same category as an order
rejecting a plaint or one dismissing a suit
on a preliminary ground as has been
referred to by Couch C.J. in his
observations quoted above. An order
directing a plaint to be rejected or taken off
the file amounts to a final disposal of the suit
so far as the court making the order is
concerned. That suit is completely at an end
and it is immaterial that another suit could be
filed in the same or another court after
removing the defects which led to the order
of rejection. On the other hand, an order of
transfer under clause 13 of the Letters
Patent, is, in the first place, not at all an
order made by the court in which the suit
is pending. In the second place, the order
does not put an end to the suit which
remains perfectly alive and that very suit is
to be tried by another court, the
proceedings in the latter to be taken only
from the stage at which they were left in
the court in which the suit was originally
filed.

9. In that judgement, the power of
transfer of the Calcutta High Court under
124 INDIAN LAW REPORTS ALLAHABAD SERIES
Clause 13 of the Letters Patent was being
looked into and it was held that an order
passed thereunder was not a judgement
between
two
litigating
parties
and,
therefore, no supervisory power could be
exercised over the order passed by the
Court. He submitted that the order passed
under Section 24 CPC by the District Court
also did not settle any issue between the
parties.

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 property
demand 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. Certainly an order passed on
a Transfer Application does not bring to an
end the litigation between the parties and,
therefore, as has been held in Asrumati Debi
vs. Kumar Rupendra Deb Raikot And others
(supra) as an order passed under Section 24
of the C.P.C. is not a judgement the High
court
cannot
exercise
its
supervisory
jurisdiction. Thus, once when the doors of the
District Court have been knocked the filing of
a Transfer Application before the High Court
is neither prohibited nor excluded. A bare
reading of the Section 24 of the C.P.C. would
clarify the point in issue and, therefore,
Section 24 of the C.P.C. is being reproduced
here as under:

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.

(3) For the purposes of this
section. -
7 All. Jaikaran Singh & Ors. Vs. Balakram & Ors.
125

(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 Cases 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.

12. In contrast, the provisions of
Order IX Rule 13 of the C.P.C. may also be
looked into which clearly put a bar on the
filing of an application under Order IX
Rule 13 of the C.P.C. once the parties had
got an Appeal decided by a higher court.

13. The provisions of Order IX Rule
13 of the C.P.C. are also being reproduced
here as under:-

13. Setting aside decree ex
parte against defendant. - In any case in
which a decree is passed ex parte against
a defendant, he may apply to the Court by
which the decree was passed for an order
to set it aside; and if he satisfies the Court
that the summons was not duly served, or
that he was prevented by any sufficient
cause from appearing when the suit was
called on for hearing, the Court shall
make an order setting aside the decree as
against him upon such terms as to costs,
payment into Court or otherwise as it
thinks fit, and shall appoint a day for
proceeding with the suit:

Provided that where the decree
is of such a nature that it cannot be set
aside as against such defendant only it
may be set aside as against all or any of
the other defendants also:

Provided further that no Court
shall set aside a decree passed ex parte
merely on the ground that there has been
an irregularity in the service of summons,
if it is satisfied that the defendant had
notice of the date of hearing and had
sufficient time to appear and answer the
plaintiff's claim.

[Explanation. - Where there has
been an appeal against a decree passed ex
parte under this rule, and the appeal has
been disposed of on any ground other than
the ground that the appellant has withdrawn
the appeal, no application shall lie under this
rule for setting aside that ex parte decree.]

14. Under such circumstances, to say that
the legislature desired the filing of only one
application, either before the High Court or
before the District Court would be an erroneous
interpretation.

15. Therefore, relying on Asrumati Debi
vs. Kumar Rupendra Deb Raikot And others4
I hold that since the High Court had not to sit in
appeal or under its supervisory jurisdiction over
the order passed by the District Court while
rejecting a Transfer Application, and in fact it
had to independently decide the Transfer
Application afresh, the Application under
Article 227 of the Constitution of India was not
maintainable.

16. The application, therefore, under
Article 227 of the Constitution of India is
dismissed as being not maintainable.
----------
126 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)07ILR A126
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.06.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No.9646 of 2019
(CIVIL)

Smt. Geeta Devi ...Petitioner
Versus
Om Prakash & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vineet Singh, Sri H.N. Singh

Counsel for the Respondents:
Sri Ayush Khanna, Sri Atul Dayal

A. Civil Law - Transfer of Property Act,
1882 - Section 44 and 55(6) - Undivided
Joint Property - Transfer by co-owner to an
outsider of family - Seeking and Delivery of
Possession - An outsider, who has purchased
the share of co-sharer in an undivided estate,
can seek possession of his/her share only
through partition by amicable mutual settlement
by metes and bounds or through a decree of the
court. (Para 29)
Held -
31. In this view of the fact, the petitioner
cannot get the possession of the share
purchased by her in the disputed premises until
a decree for partition is obtained by her and the
disputed property has been partitioned in the
execution of the decree by metes and bounds.
B. Civil Law - Transfer of Property Act,
1882 - Section 111(d) - Doctrine of Merger
- Applicability - Vesting of interest of Lessee
and lessor - According to Section 111 (d), a
lease of immoveable property determines in a
case where the interests of the lessee and that
of the lessor in the whole of the property
become vested in the tenant - Two conditions
are mandatory to attract Section 111 (d); that it
is only the tenant who should acquire the
property of the landlord; second, the tenant
should purchase assignment of the rights of the
landlord in the property in its entirety. (Para 36)
Held -
37. In the instant case, the petitioner admits
that she is not the tenant of the disputed
premises and has purchased 1/3rd share of Sri
Ram and not the entire ownership interest in
the disputed premises, therefore, the twin
conditions of applicability of the doctrine of
merger of the tenancy are lacking.
Petition dismissed (E-1)
Cases relied on :-
1. Pramod Kumar Jaiswal & ors. Vs Bibi Husn
Bano & ors. (2005) 2 ARC 921
2. India Umbrella Manufacturing Co. & ors. Vs
Bhagabandei Agarwalla & ors. (2004) 3 SCC
178;
3. T. Lakshmipathi & ors. Vs P.Nithyananda
Reddy & ors. (2003) 5 SCC 150.
4. Ramdas Vs Sitabai & ors. (2009) 7 SCC 444
5. Hardeo Rai Vs Sakuntala Devi & ors. (2008) 7
SCC 46
6. Ghantesher Ghosh Vs Madan Mohan Ghosh &
ors. (1996) 11 SCC 446
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri H.N. Singh, Senior
Advocate assisted by Sri Vineet Kumar
Singh, learned counsel for the petitioner
and Sri Atul Dayal, Senior Advocate
assisted by Sri Ayush Khanna, learned
counsel for the respondents.

2. The petitioner through pre0sent
petition has assailed the order dated
30.09.2019 passed by Judge, Small Causes
Court, Allahabad in Miscellaneous Case
No.812 of 2017 arising out of Execution
Case No.6 of 2017 rejecting the petitioner's