# Mahendra Pratap Bhatt v. Smt. Saroj Mahana

- **Citation:** (2016) 4 ILRA 916
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-25
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pratap-bhatt-v-smt-saroj-mahana-43704
- **Pages:** 8

## Text

916 INDIAN LAW REPORTS ALLAHABAD SERIES
of the existing vacancies on the date of commencement of these rules, shall be filled by
selection, from amongst such seasonal collection amins who possessed requisite
qualifications as prescribed in second proviso to sub-rule (1) of rule 5." (emphasis
supplied)

7. A reading of the fourth proviso clearly shows where the rule making authority sought to
link the percentage of seats to the existing vacancies for being offered to seasonal collection amins,
a clear and unambiguous provision was made in respect thereof. It is for this reason that the fourth
proviso links the percentage to 'existing vacancies'.

8. For the aforesaid reasons, we find that the learned Single Judge was correct in his
conclusion that the 35% quota is to be worked out with reference to the total cadre strength of
collection amins and could not be made to depend upon the fluctuating number of vacancies that
may be available at different points of time. We are in agreement with the conclusion and findings
so recorded by the learned Single Judge on this score and in consequence find no merit in the
present Special Appeal.

9. We however clarify that neither this order nor the judgment rendered by the learned
Single Judge would come in the way of the consideration of the claim of the appellants in light of
the fourth proviso to Rule 5 which earmarks 85% of the existing vacancies to be filled by selection
from amongst such seasonal collection amins who possess the requisite qualifications.

10 Subject to the aforesaid observations, the judgment rendered by the learned Single
Judge is affirmed.

11. The Special Appeals stands disposed of.
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APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.04.2016

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.

Special Appeal No.- 153 Of 2016

Mahendra Pratap Bhatt ...Appellant
Versus
Smt. Saroj Mahana ...Respondent

Counsel for Appellant:
A.S. Rai, Govind Kumar Saxena
4 All. Mahendra Pratap Bhatt Vs Smt. Saroj Mahana

917
Counsel for Respondent:
Mithila Bakhsh Tiwari

Proceedings

The appellant challenged the jurisdiction of the learned Single Judge to entertain an application under Section
24 of the Code of Civil Procedure (CPC) filed before the Allahabad High Court. The dispute concerned a cause
of action and pending matter in the Family Court, Allahabad. The appellant contended that the Single Judge at
Lucknow had no territorial jurisdiction to entertain the Section 24 CPC application. The Court examined prior
judgments, including Apex Court and High Court precedents, regarding the maintainability of special appeals
under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952.

Procedure

Application under Section 24 CPC filed before a Single Judge at Lucknow relating to a dispute pending in
Family Court, Allahabad.
Learned Single Judge assumed jurisdiction and passed orders, including sending the matter for mediation.
Appellant filed special appeal questioning the maintainability of the Section 24 application at Lucknow on
grounds of territorial jurisdiction.
Court reviewed relevant judgments, including Amit Khanna v. Smt. Suchi Khanna (2009) and Subal
Paul v. Malina Paul (2003), as well as other Apex Court authorities.
Court examined the scope of Chapter VIII Rule 5 for intra-court appeals and the effect of Section 24 CPC
applications on jurisdiction.
Court concluded that the learned Single Judge at Lucknow lacked territorial jurisdiction and set aside the order
dated 05.04.2016.

Statutory Provisions

Section 24, CPC - Transfer of suits or proceedings.
Sections 104 & 105, CPC - Bar on appeals unless specifically provided.
Chapter VIII Rule 5, Allahabad High Court Rules, 1952 - Intra-court special appeal procedure.

Case Law / Principles

Amit Khanna v. Smt. Suchi Khanna, 2009 (1) AWC 929 - Special appeal maintainability under Rule 5
against Section 24 CPC orders.
Subal Paul v. Malina Paul, 2003 (5) JT 193 - Apex Court upheld intra-court appeal under letters patent
rules despite CPC provisions.
Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda, (2006) 5 SCC 399 - Applicability of specific
statutory provisions for appeal.
I.N.G. Vysya Bank Ltd. v. Shamken Spinners Ltd, 2011 (1) ACJ 678 - Appeal maintainability
discussion.
Raja Khan v. U.P. Sunni Central Waqf Board, 2011 (2) SCC 741 - Territorial jurisdiction affects
maintainability of appeal.
Smt. Jyotsna Dixit v. Civil Judge, Khiri, 1999 (1) AWC 107 - Section 24 CPC application filed outside
territorial jurisdiction rejected.

Head Notes
918 INDIAN LAW REPORTS ALLAHABAD SERIES
A special appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules is maintainable when the
learned Single Judge passes an order with the trappings of a judgment, even in cases involving Section 24
CPC applications. However, if the Single Judge assumes jurisdiction in a matter that lies outside the territorial
jurisdiction of the Court, such order is liable to be set aside. Territorial jurisdiction is fundamental and cannot
be assumed by counsel's concession or by incidental events such as a criminal complaint in a different
jurisdiction.

Facts

Dispute relates to a Family Court matter in Allahabad.
Application under Section 24 CPC filed before Single Judge at Lucknow.
Single Judge assumed jurisdiction and passed orders including mediation direction.
Appellant challenged maintainability of application and lack of territorial jurisdiction.

Contentions

Appellant: Single Judge at Lucknow had no jurisdiction; application under Section 24 CPC not maintainable;
special appeal is permissible.
Respondent: Did not contest; no counter affidavit filed.
Court considered earlier rulings on maintainability of intra-court appeals, Section 24 CPC, and territorial
jurisdiction issues.

Analysis

Jurisdictional Error: Learned Single Judge lacked territorial jurisdiction; the cause of action related entirely
to Allahabad.
Maintainability of Special Appeal: Intra-court appeal under Rule 5 is maintainable when an order has the
character of a judgment.
Section 24 CPC Limitations: CPC does not provide automatic appeal; territorial constraints are binding.
Precedent Reliance: Apex Court rulings in Subal Paul, Raja Khan, and Midnapore Peoples' Coop Bank
confirmed appeal maintainability and limits of territorial jurisdiction.
Consequence: The assumption of jurisdiction based on concessions or incidental events is invalid.

Conclusion

Special appeal allowed. Order dated 05.04.2016 passed by the learned Single Judge at Lucknow under Section
24 CPC set aside. Application dismissed with liberty to file appropriate proceedings at Allahabad, the
competent territorial jurisdiction. No order as to costs.

(Delivered by Hon'ble Amreshwar Pratap Sahi, J.
&
Hon'ble Attau Rahman Masoodi, J.)

1. Heard Sri A.S. Rai, learned counsel for the appellant and Sri M.B. Tiwari, learned counsel
for opposite party.

2. This appeal under Chapter VIII Rule 5 has been preferred questioning the very jurisdiction
of the learned Single Judge to entertain the application under Section 24 Code of Civil Procedure
4 All. Mahendra Pratap Bhatt Vs Smt. Saroj Mahana

919
(CPC) before this Court on the ground that the entire cause of action and the pendency of the
dispute relates to the court of Principal Judge, Family Court, Allahabad.

3. A copy of the order sheet has been filed before us which is taken on record.

4. Learned counsel for opposite party has raised a preliminary objection with regard to
maintainability of the appeal.

5. We have heard learned counsel on the said issue and we have also gone through the relevant
judgements in this regard.

6. Chapter VIII Rule 5 of the Allahabad High Court Rules makes a provision for appeal
against the orders of learned Single Judges which is an intra-court appeal subject to the limits
provided therein. The dispute in the present appeal arises out of an application filed under Section
24 CPC before the learned Single Judge of this Court in a cause of action relating to the Family
Court at Allahabad. A Division Bench of this Court in the case of Amit Khanna v. Smt. Suchi
Khanna, 2009 (1) AWC 929, considered the same issue and came to the conclusion in paragraph
21 as follows:

"21. According to above provision no appeal is maintainable from any order of the Court
passed in exercise of its original or appellate jurisdiction, except against orders which have been
made appealable under Section 104 C.P.C. Undisputedly, an order passed on an application under
Section 24 C.P.C. has not been made appealable under any provision of the C.P.C. including
Section 104 C.P.C. Right to appeal is not inherent unless it is specifically provided by the statute.
Since the Code of Civil Procedure does not specifically provide for an appeal against an order
passed on a transfer application and at the same time by implication excludes an appeal against
such an order by virtue of Section 105 C.P.C., therefore, merely for the reason Rule 5 Chapter VIII
of the Rules of the Court, 1952 is silent in this regard it would not confer jurisdiction of appeal. If
any contrary interpretation is made and the appeal is held to be maintainable it would amount to
conferring jurisdiction of appeal which otherwise is not specifically provided but is expressly as
well as by implication excluded by Section 105 C.P.C. Thus, in the above scenario the right of
special appeal as contemplated by Rule 5 Chapter VIII of the Rules of the Court, even though the
same is independent to the provisions of C.P.C., against the order of the single judge passed on a
transfer application under Section 24 C.P.C. stands impliedly excluded. "

7. Learned counsel for the appellant faced with the said proposition invited the attention of the
Court to a compilation of judgements filed on behalf of the appellant as well as the judgement of
the apex court in the case of Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda and others,
(2006) 5 SCC 399. He has further relied upon the judgement in the case of I.N.G. Vysya Bank Ltd.
v. Shamken Spinners Ltd, 2011 (1) ACJ 678, Om Prakash Dwivedi v. State of U.P. and others,
2013 (3) ACJ 2561 and Prof. Y.C. Simhadri v. Deen Bandhu Pathak, 2001 (2) ACJ 1549. He has
then invited the attention of the Court to the consideration of Sections 104 and 105 CPC in the
judgement in the case of Subal Paul vs Malina Paul and another, 2003 (5) JT 193 and on the
920 INDIAN LAW REPORTS ALLAHABAD SERIES
strength thereof, has urged that the judgment in the case of Amit Khanna (supra) by the Division
Bench of the High Court which is a later decision, has not noticed the aforesaid ratio, as such, the
same does not correctly explain the law.

8. He submits that a special appeal would be maintainable particularly on the facts of the
present case inasmuch as there is a patent lack of the jurisdiction in entertaining an application
under Section 24 CPC in a matter that was exclusively within the territorial jurisdiction of the
Allahabad High Court at Allahabad. He submits that the learned Single Judge appears to have
completely overlooked this aspect of the matter and once there is a patent lack of jurisdiction in
entertaining an application under Section 24 CPC at Lucknow, this lack of territorial jurisdiction
goes to the root of the matter. Consequently, in view of the judgements cited hereinabove, a special
appeal under Chapter VIII Rule 5 would be entertainable and maintainable as the order of the
learned Single Judge falls within the trappings of a judgement.

9. We have also come across the judgement of a learned Single Judge in the case of Smt.
Jyotsna Dixit v. Civil Judge, Khiri and others, 1999 (1) AWC 107, where almost an identical
situation had arisen where an application under Section 24 CPC had been filed at Allahabad in
respect of a cause of action before the Family Court in Kheri. The jurisdiction in that case was
before the Lucknow Bench but the application had been filed at Allahabad. The same was rejected
after discussing the entire law on the subject.

10. The issue relating to maintainability of a special appeal was also raised in the case of
Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai, 2004 (1) AWC 88, but even though the
question had been raised, the same was not finally answered in view of the fact that it was only at
an interim stage that some orders had been passed. However, the law relating to maintainability of
a special appeal was discussed therein, holding that if an order of a learned Single Judge has the
trappings of a judgement then in that event the appeal would be maintainable under Chapter VIII
Rule 5 CPC.

11. The issue relating to maintainability of a letters patent appeal under Clause 15 of the
Calcutta High Court Rules came up for consideration before the Supreme Court in the case of
Subal Paul (supra). An application for succession was decided under the Indian Succession Act,
1925 by the learned Additional District Judge in a matter of probate. Aggrieved, an appeal was
preferred under Section 299 of the Succession Act, 1925 before the High Court. A learned Single
Judge allowed the appeal and granted the letter of administration. Aggrieved by the judgement of
learned Single Judge, the unsuccessful party preferred a letters patent appeal before the Division
Bench in the same High Court. An objection was raised as involved herein about the
maintainability of the appeal but the Division Bench rejected the objection and entertained the
intra-court appeal. This was subjected to a challenge before the apex court in the aforesaid decision
and the judgment of the Division Bench was upheld clearly holding that the intra-court appeal was
maintainable. While doing so, the Supreme Court considered the issue of bar that was raised on the
strength of Section 104 of the CPC read with Section 105 thereof. The apex court ruled that the
right of appeal in a contentious proceeding was found to be available in the proceeding of Section
4 All. Mahendra Pratap Bhatt Vs Smt. Saroj Mahana

921
299 of the Succession Act and not in Section 104 of CPC. It was held that the intention of the
legislature was never to govern the provisions of the Succession Act with that of CPC.

12. In the instant case, there is no appeal provided at all against the decision on an application
under Section 24 CPC. The ratio of the decision in the case of Amit Khanna (supra) as extracted
hereinabove does not take notice of the line of reasoning as given in the aforesaid three-judges
decision of the apex court in the case of Subal Paul (supra). We are, therefore, inclined to follow
the ratio of the decision in the case of Subal Paul (supra) as against that of Amit Khanna (supra) on
the facts of the present case.

13 There is yet another dimension according to which the ratio of the case of Amit Khanna
(supra) on the facts of the present case would not apply. That case was not a case of total lack of
territorial jurisdiction. The only issue was the maintainability of a Special Appeal arising out of an
order under Section 24 CPC. The jurisdictional issue was not involved therein as in the present case
and consequently, the said case stands distinguished both on facts and law.

14. A case that has also come at hand is the decision in Special Appeal No.973 of 2010, U. P.
Sunni Central Waqf Board & Anr. Vs. Raja Khan & Ors. decided on 5.8.2010. In that case, the
issue was an order passed by a learned Single Judge issuing notices and passing an interim order in
a writ petition arising out of a Civil Suit that was filed before the learned Civil Judge, Hamirpur in
a matter relating to district Bahraich. There was a previous history of the litigation also which has
been discussed in the said judgment but for the present purpose, suffice it to say that Bahraich falls
within the territorial jurisdiction of the High Court at Lucknow and not at Allahabad. Yet, the Suit
was filed in Hamirpur which falls within the territorial jurisdiction of Allahabad, and since the
Munsarim had made a report that the Suit was not cognizable at Hamirpur, a writ petition was filed
against the said report before the High Court at Allahabad in which orders were passed by a learned
Single Judge. This was subjected to a Special Appeal in the above mentioned case and the Court
allowed the Appeal imposing costs and set aside the judgment of the learned Single Judge in the
aforesaid circumstances.

15. The aggrieved party assailed the aforesaid judgment of the Division Bench, to which one
of us [Justice A.P. Sahi] was a member, before the Apex Court and the same was upheld with
remarks which judgment is reported in 2011 (2) SCC 741, Raja Khan v. Uttar Pradesh Sunni
Central Waqf Board and another. The said judgment was subjected to review for expunging of
such remarks which was disposed of and the same is reported in 2010 (15) SCC 228, Raja Khan v.
Uttar Pradesh Sunni Central Waqf Board and another.

16. The above propositions therefore as applied on the facts of the present case leave no room
for doubt that neither the application under Section 24 was maintainable before this Court nor was
the order passed by the learned Single Judge related to a subject matter within the territorial
jurisdiction of this Court. This inherent lack therefore has to be co-related to the nature of the order
passed.
922 INDIAN LAW REPORTS ALLAHABAD SERIES

17. In our opinion, at the best, the impugned order of the learned Single Judge would be, if at
all, in the purported exercise of power under Article 226 of the Constitution of India. That being so,
such purported exercise of power under Article 226 of the Constitution of India would be amenable
to an intra-Court Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules,
1952 which is extracted hereunder:-

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 not being an order made in the exercise of
revisional jurisdiction or in the exercise of its power 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."

18. Consequently, for all the reasons above, the special appeal would be maintainable.

19. In the instant case, the learned Single Judge has assumed jurisdiction to send the matter for
mediation at Lucknow on a stated submission which according to the learned Single Judge was a
concession.

20. We are of the considered opinion that a jurisdiction cannot be assumed on the concession
of the counsel for the parties or even otherwise, in a matter that squarely relates to the dispute at
Allahabad.

21. Merely because the opposite party had lodged an F.I.R. at Lucknow and instituted a
criminal case, the same would not make the application under Section 24 CPC maintainable in
relation to the dispute pending before the Family Court at Allahabad. This assumption, therefore,
by the learned Single Judge in our considered view is not the correct view for assuming jurisdiction
that is totally lacking.

22. Learned Counsel for the opposite party Sri Tiwari submits that he does not propose to file
any counter affidavit in the matter.

23. In view of the conclusions drawn hereinabove and in view of the law as explained, we are
more than satisfied that the learned Single Judge could not have assumed the jurisdiction to
entertain the application under Section 24 CPC and pass orders on 5.4.2016, impugned herein.
Since the entertaining of the application suffers from patent lack of territorial jurisdiction, we set
aside the order dated 5.4.2016 and also dismiss the application under Section 24 CPC with liberty
to the opposite party to move any such application that may be required to be filed at Allahabad.
4 All. Zarif Ahmad & Anr. Vs Suleman & Ors.

923

24. The appeal is accordingly allowed with no orders as to cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2016

BEFORE

THE HON'BLE PRAMOD KUMAR SRIVASTAVA, J.

Second Appeal No.- 224 Of 2016

Zarif Ahmad & Anr. ...Appellants
Versus
Suleman & Ors. ...Respondents

Counsel for the Appellants:
Shri Santosh Kumar Mishra

Counsel for the Respondents:

Held -

Para 1: The Court decides to hear and dispose of the second appeal on its merits at the admission stage based
on admitted facts.

Para 2: Identifies Khasra No. 73 as a joint holding belonging to eight co-tenants (including the appellant Zarif
Ahmad and the respondent).

Para 3: Outlines the history of the partition suit; currently, a second appeal is pending before the Board of
Revenue, which has stayed the previous appellate order.

Para 4: Notes a prior sale deed by co-tenants Safi and Islam to Respondent 4, which was cancelled by a trial
court (currently under appeal).

Para 5: Details the current dispute: co-tenant Suleman sold his share to Respondent 4. The appellant's suit to
cancel this deed was dismissed by both the Trial and First Appellate Civil Courts.

Para 6: Summarizes the appellant's argument: Since the Revenue Court's initial decree (giving him the whole
plot) is supposedly "revived" by the Board of Revenue's stay, the sale by Suleman is void.

Para 7: The Core Ruling: The Court holds that because the land is agricultural, only the Revenue Court has
jurisdiction to declare ownership or partition. Civil Courts cannot grant a "cancellation" that requires first
declaring exclusive title over agricultural land.

Para 8: Concludes that the lower civil courts were correct in dismissing the suit because they lack the
jurisdiction to decide ownership of agricultural property.