# Shivpal Singh & Ors v. Dafedar Singh & Ors

- **Citation:** (2022) 5 ILRA 1619
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-12
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shivpal-singh-ors-v-dafedar-singh-ors-48458
- **Pages:** 9

## Headnote

Civil Law - Code of Civil Procedure, 1908
- Transfer Application u/S 24 - Petition
u/A 227--- Power of the District Judge and
High Court u/S 24 C.P.C. is concurrent and,
therefore, once the application u/S 24 moved
before District Judge has been dismissed the
aggrieved party can approach u/S 24 of the
CPC and not by way of petition u/A 227 of
Constitution as held in Smt. Sunita Devi v
Ram Kripal & anr. 2014 SCC Online Allahabad
13486 and Indian Oil Corp. Ltd. Vs Ram
Swaroop Bajaj 2016 SCC Online Allahabad
2743

Petition referred to larger bench. (E-12)
1620 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

## Text

5 All. Shivpal Singh & Ors. Vs. Dafedar Singh & Ors.
1619
residential building. But the fact that the
tenant has acquired a suitable alternative
non-residential building may, however, be
urged as a good ground to hold that no
hardship will be caused to the tenant if he is
evicted from the premises let out to him.

21. To the same effect is the decision
of this Court in Laxmi Kant Bhatnagar v.
District
Judge,
Muzaffarnagar
and
another4, where it was observed :

8. The legislative mandate is very
clear. Once a tenant has himself got a
residential accommodation, or through any
member of his family who has been
normally residing with him or is wholly
dependent on him, in a vacant state, no
objection against release application under
section 21(1)(a) of Act, 1972 shall be
entertained from such tenant.

9. The sale-deed is on record.
There is nothing to show that accommodation
was not vacant at the time of execution of
sale-deed between petitioner-tenant's wife
and erstwhile landlord of said building. No
other material has been placed to show that
the building when acquired was not vacant.
The acquirement of building by petitioner's
wife is not in dispute. It is also not in dispute
that Explanation (i) would be attracted in the
present case. Even during course of argument
Sri A.K. Mehrotra has not controverted that
the said provision i.e., Explanation (i) to
section 21(1)(a) shall be attracted in the
present case.

10.
That
being
so,
against
landlord's
application
for
release
of
residential accommodation, no objection can
be entertained from the tenant. It means that
the tenant loses any locus standi to object
prayer for release made by the landlord.

11. That being so, it results in
extinguishing any right to contest prayer of
landlord for release of residential building
which embraces within itself right to
pursue
or
contest
in
subsequent
proceedings also.

22. Thus, viewed from any angle and
whichever way it is considered, no case for
interference with the impugned order is
made out.

23. In the result, this petition fails and
is dismissed. There shall be no order as to
costs.
----------
(2022)05ILR A1619
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2022

BEFORE

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

Matters U/A 227 No. 7532 of 2021 (Civil)

Shivpal Singh & Ors. ...Petitioners
Versus
Dafedar Singh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satish Kumar Pandey, Sri Anil Kumar

Counsel for the Respondents:
Sri Yogendra Kumar Srivastava

Civil Law - Code of Civil Procedure, 1908
- Transfer Application u/S 24 - Petition
u/A 227--- Power of the District Judge and
High Court u/S 24 C.P.C. is concurrent and,
therefore, once the application u/S 24 moved
before District Judge has been dismissed the
aggrieved party can approach u/S 24 of the
CPC and not by way of petition u/A 227 of
Constitution as held in Smt. Sunita Devi v
Ram Kripal & anr. 2014 SCC Online Allahabad
13486 and Indian Oil Corp. Ltd. Vs Ram
Swaroop Bajaj 2016 SCC Online Allahabad
2743

Petition referred to larger bench. (E-12)
1620 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:-

1. Jaikaran Singh & ors. Vs Balak Ram & ors.
2020 SCC Online All 632

2. Smt. Sunita Devi Vs Ram Krapal & anr. 2014
SCC Online All 13486

3. Indian Oil Corporation Limited through it's
Principal
Secretary
Vs
Ram
Swaroop
Bajaj(Deceased) Through his Legal Heir Km.
Aparna Bajaj 2016 SCC Online 2743

4. Jagdish Kumar Vs District Judge, Budaun
1998(33) ALR 400
(Delivered by Hon'ble J.J. Munir, J.)

Heard Mr. Satish Kumar Pandey,
learned Counsel for the petitioners and Mr.
Yogendra
Kumar
Srivastava,
learned
Counsel appearing for the respondents via
video conferencing.

2. This is a petition under Art. 227 of the
Constitution, seeking to set aside the order
dated 26.10.2021 passed by the District Judge,
Mainpuri in Transfer Application No. 85 of
2021, praying for a transfer of Civil Appeal
No. 40 of 2016, Shivpal Singh and others v.
Dafedar Singh, pending before the Ist
Additional District Judge, Mainpuri to the
Court of the District Judge. The appellants in
the civil appeal pending before the District
Court appear to be defendants of Suit No. 939
of 1996, decided by the Civil Judge (Junior
Division), Mainpuri vide judgment and decree
dated 20.10.2016. They are the petitioners
here, whereas respondent nos. 1 to 13 are the
plaintiff-respondents to the present petition as
well as the appeal before the District Court.
The petitioners' application for transfer has
been dismissed by the learned District Judge
of Mainpuri vide order dated 26.10.2021.

3. Before this Court could examine
the merits of the order passed by the
District Judge dated 26.10.2021, refusing
the petitioners' plea for transfer of the
appeal, Mr. Yogendra Kumar Srivastava,
learned Counsel appearing for respondents
took an objection that in view of the
decision of this Court in Jaikaran Singh
and others v. Balakram and others1, this
petition is not maintainable. Instead, a
transfer application would lie to this Court
under Section 24 of the Code of Civil
Procedure, 19082 after rejection of the
petitioners' transfer application by the
District
Judge
under
the
aforesaid
provision.

4. Mr. Satish Kumar Pandey, learned
Counsel for the petitioners, on the other
hand, has countered the objection as to the
maintainability of this petition under Art.
227 of the Constitution. He submits that
once a transfer application under Section
24 of the Code is rejected by the District
Judge, asking for transfer of a suit or appeal
from one Court to another in the same
judgeship, the only remedy is a petition
under Art. 227 of the Constitution and not a
transfer application made further to this
Court under Section 24 of the Code. He has
placed reliance upon the decision of this
Court in Smt. Sunita Devi v. Ram Kripal
and another3 and another decision of this
Court in Indian Oil Corporation Ltd.
through its Principal Secretary v. Ram
Swaroop Bajaj (deceased) through his
legal heir Km. Aparna Bajaj4.

5. This Court has examined the
matter, and there appears to be difference of
opinion on the point between learned
Single Judges of this Court. In Jaikaran
Singh (supra), Siddharth Varma, J. held
that against an order of the District Court
declining a transfer application under
Section 24 of the Code, a petition under
Art. 227 of the Constitution does not lie.
5 All. Shivpal Singh & Ors. Vs. Dafedar Singh & Ors.
1621
The remedy of the unsuccessful applicant
for transfer is to invoke the concurrent
jurisdiction of this Court under Section 24
of the Code. His Lordship in Jaikaran
Singh has opined :

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
v. Kumar Rupendra Deb Raikot (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.--

(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
1622 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 13 of the C.P.C. once the parties had
got an Appeal decided by a higher court.
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.]

13. 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.

14.
Therefore,
relying
on
Asrumati Debi v. Kumar Rupendra Deb
Raikot4 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.

15. The application, therefore,
under Article 227 of the Constitution of
India
is
dismissed
as
being
not
maintainable.

6. Much earlier than the decision in
Jaikaran Singh, Surya Prakash Kesarwani,
J. appears to have taken a contrary view,
holding that no power has been conferred
on the High Court to set aside orders made
by the District Court on a transfer
application under Section 24 of the Code
and that, therefore, against an order passed
by the District Judge allowing a transfer
application, further transfer application to
this Court would not lie under Section 24
of the Code. His Lordship has followed an
earlier decision of this Court to the same
effect in Smt. Sunita Devi. His Lordship in
Indian Oil Corporation Ltd. (supra) held
:

5. From perusal of the aforesaid
provisions, it is apparently clear that no
power has been conferred on the High
Court to set aside the order passed by the
District Court on an application under
section 24 of C.P.C.

6. In the case of Dr. Ajay
Chaturwedi v. Smt. Shobhana1, a Division
Bench of this Court has considered the
nature of power under section 24 of C.P.C.
and held that transfer of proceedings of
suit, appeal etc. can be directed by the High
5 All. Shivpal Singh & Ors. Vs. Dafedar Singh & Ors.
1623
Court/District Court on an application as
also suo moto. This 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. The
power of transfer of suit and other
proceedings is an exercise of power of
superintendence. The legal position has
also been explained by the Madras High
Court in the case of P. Karuppiah Ambalam
v. Ayya Nadar2. The power conferred under
section 24 of 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.
Section 24 confers a very wide power, and
it is intended to enable the two Superior
Courts mentioned in it to exercise their
general power of superintendent over
Subordinate Courts, or in the interest of
justice.

7. In the case of Sunita Devi
(supra), this Court considered the scope of
section 24 of C.P.C. and held as under:

"8. The expression "the High
Court or the District Court" clearly
indicates that the power of the District
Judge and that of the High Court under
section 24 of the C.P.C. Is mutually
exclusive. The word "or" in the expression
"the High Court or. The District Court" in
sub-section (1) is used disjunctively and
not conjunctively which means that a
person can move either the High Court or
the District Court and not both the Courts
in succession one after the other. Thus,
from the aforesaid expression it is crystal
clear that the application under section 24
of the C.P.C. can either be moved before
the District Judge or the High Court and
cannot be moved simultaneously or one
after the other. Thus, the remedy can be
availed either by approaching the District
Judge or directly to the High Court. Since
the jurisdiction of the District Judge and the
High Court is concurrent under section 24
of the C.P.C, so if one party has approached
the District Court, that party would be
precluded from approaching the High Court
under section 24 of the C.P.C. The High
Court under section 24 of the C.P.C. cannot
sit over the order of the District Judge as a
Revisional Court or as an Appellate Court.

10. From the above provision of
the Cr. P.C. it is clear that if any transfer
application is rejected by the Sessions
Judge the applicant can come to the High
Court for getting the case transferred from
one Court to the other in the same
judgeship on the same ground but there is
no such provision in the C.P.C. So, in the
absence of such provision no party can
approach the High Court after rejection of
his application by the District Judge. In this
reference, the ruling of the Hon'ble High
Court rendered in Dadi jagannadham v.
Jammulu Ramula1, may be referred to. In
this ruling, it has been held that the Court
could not add words to a statute or read
words into it which are not there, especially
when the literal reading produces an
intelligible result.

11. So, in the absence of any
specific provision in the C.P.C. a person
cannot approach the High Court under
section 24 of the C.P.C. or any other
provision of the C.P.C. to get his case
transferred from one Court to another in the
same judgeship after rejection of his
transfer application by the District Judge on
the same ground. But he is not remediless.
He may approach the High Court for this
purpose by means of filing the writ petition
under Article 226 and 227 of the
Constitution of India and may invoke the
High Court's power of superintendence" 9.
1624 INDIAN LAW REPORTS ALLAHABAD SERIES
In view of the aforesaid, I find that transfer
application filed by the applicant is not
maintainable. Consequently, the transfer
application deserves to be dismissed.

7. It must be remarked that the
decision of this Court in Smt. Sunita Devi
was rendered in a case where the applicant
before this Court had moved a transfer
application under Section 24 of the Code,
after rejection of his application seeking
transfer of the suit within the same
judgeship by the District Judge. It was in
that context that Mohd. Tahir, J. held that a
further transfer application under Section
24 CPC would not lie, for the reasons
indicated in Paragraph Nos. 10 and 11 of
the report. In Jaikaran Singh, the two
earlier decisions of this Court in Smt.
Sunita Devi and Indian Oil Corporation
Ltd. were not brought to His Lordship's
notice.

8. This issue appears to have been
considered by a Division Bench of the
Calcutta High Court in Gora Chandas v.
Dipali Das5 and an earlier decision of a
Division Bench of the same Court in Hari
Nath Biswas and another v. Devendra
Nath Biswas6 where it was held that
against refusal of an application under
Section 24 of the Code by the District
Judge, a fresh application for transfer to the
High Court under Section 24 of the Code is
maintainable. Their Lordships of the
Division Bench in Gora Chandas (supra)
followed a learned Single Judge of the
Patna High Court in Sheo Nandan Lal and
others v. Mangal Chand7.

9.

To
my
understanding,
the
jurisdiction under Section 24 of the Code is
concurrent and nature of the power
exercised under Section 24 is essentially
administrative. It is administrative in the
sense that it does not decide rights of
parties in the sense that it is done in a lis
before the Court. All that is decided in an
application under Section 24 of the Code is
the Court that would hear a suit or an
appeal or other proceedings governed by
the Code of Civil Procedure, 1908. The
resultant of a determination under Section
24 of the Code is nothing more than the
fact whether Court ''A' ''B' or ''C' would
hear and decide a lis between parties. To
transfer a case within a judgeship, the
District Judge has concurrent jurisdiction
with the High Court. If the District Judge
declines to transfer a case from a particular
Court or grants a transfer, the High Court,
being a Court of superior jurisdiction, can
be approached by the unsuccessful party
before the District Judge or the party who
feels that the transfer has been wrongly
granted, through an original application
under Section 24 of the Code. The High
Court,
being
a
Court
of
superior
jurisdiction, above the District Judge, can
take an "administrative decision" so to
speak, to grant a transfer, where the District
Judge has refused, or to re-transfer a case
where the District Judge has granted it to
the same Court or some other Court. In
passing any of these orders, the High Court
would not be deciding any case in the sense
of a lis or undoing an order of the District
Judge in the sense that an Appellate Court
or
Revisional
Court
does,
where
a
subordinate Court passes a judicial order,
deciding a lis inter partes.

10. The view that I take draws much
for its inspiration from the decision of this
Court in Jagdish Kumar v. The District
Judge, Budaun and others8. In the case
last mentioned, the District Judge had
dismissed a transfer application under
Section 24 of the Code. Upon an
application
under
the
section
last
5 All. Shivpal Singh & Ors. Vs. Dafedar Singh & Ors.
1625
mentioned being made to this Court, after
the District Judge had rejected that prayer,
an objection about maintainability of a
second or a further application under
Section 24 of the Code on the same
grounds was raised before this Court by the
learned Counsel for the respondents. This
Court formulated two questions, which are
detailed in Paragraph No. 7 of the report in
Jagdish Kumar (supra) which reads :

7. The contention of the counsel
for the opposite party that a second
application under Section 24 of the Code
on the self same ground after its rejection is
not maintainable is disputed by the counsel
for the applicant. From the arguments
advanced by the respective counsel on this
point,
the
following
questions
are
formulated.-(1) whether the order rejecting
or allowing an application under Section 24
of the Code is a case decided within the
meaning of Section 115 of the Code and is
thereby open to revision or not? (2)
whether the jurisdiction of the High Court
and the District Court under Section 24 of
the Code is concurrent to the extent that
after a decision by one Court on such
application a second application on the self
same cause of action to the other court is
competent.

11. Though the answer to the first
question formulated in Jagdish Kumar
also has bearing on the issue involved here,
but it is the second question that squarely
covers the controversy. In answering the
second question in Jagdish Kumar, D.K.
Seth, J. held :

18. Now turning to the second
point it may be observed that Section 24 of
the Code has used an expression which
clearly
indicates
that
the
power
is
concurrent to both the District Judge and
the High Court. Inasmuch as it has used the
expression that "High Court or the District
Court may (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 or
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".

19. The jurisdiction conferred
under Section 24 of the Code is concurrent
does not conceive of any scope of doubt.
But whether the concurrent jurisdiction
means that both the jurisdiction can be
availed together or one after the other. The
concurrence means both the courts having
jurisdiction, the parties are free to approach
one or the other. Whenever concurrent
jurisdiction has been conferred on the High
Court and the District Court, it is provided
that it one of the forum is approached, the
party would be precluded from approaching
the other forum. Inasmuch as in the West
Bengal amendment of Section 115 of the
Code by which Section 115A has been
inserted. Under the said provisions both
High Court and District Court have been
empowered to entertain an application
under Section 115 of the Code. Under subsections (3) and (4) thereof it has been
provided that if either of the court is
approached, no further revision shall be
entertained between the same parties either
by the High Court or the District Court as
the case may be. Similar provision has also
been incorporated in Section 397 of the
Cr.P.C. where in sub-section (3) similar
exclusion of jurisdiction by the High Court
1626 INDIAN LAW REPORTS ALLAHABAD SERIES
or Sessions Court having concurrent
jurisdiction has been provided. In the
absence of specific prohibition or exclusion
of jurisdiction, Section 24 of the Code
cannot be interpreted to mean that the
jurisdiction of the one court is to the
exclusion of the other. But a situation may
arise where the High Court having been
unsuccessfully approached, a party may
approach to the District Court thereafter. If
such a situation is permitted, it would work
out a judicial anarchy. After having
unsuccessful before the District Court, a
party may approach the High Court. Such
position is in conformity with the system of
judicial hierarchy. If the party approaches
the High Court then it cannot come back to
the District Court. Such an interpretation
would not be in conformity with the
judicial system of hierarchy.

20. But in case a party seeking
transfer, is unsuccessful in the District
Court whether he is precluded from
challenging the said order. The answer would
be available by resorting to Article 227 of the
Constitution. Therefore, it cannot be said that
he is precluded from challenging such an
order if sufficient ground is made out for
invoking such jurisdiction. Similarly if an
applicant before the High Court succeeds, the
aggrieved party cannot avail the concurrent
jurisdiction of the District Judge thereafter on
the same analogy due to which successful
candidate is so prevented. The jurisdiction
may not be mutually excluded but once the
High Court is approached, the jurisdiction of
the District Court is excluded.

21. In the case of Gorachand Das
v. Bipal Das 1976 (2) Cal LJ 380, it was
held that even after the District Court
refused the prayer for transfer under
Section 24 of the Code, the High Court
may be moved for transfer.

22. Thus the out-come of the
above discussion indicates that when an
application for transfer before the District
Court fails, the party applying may
approach the concurrent jurisdiction of the
High Court under the same provision but
the party opposing though may apply for
retransfer before the District Judge but
cannot challenge the said order under
Section 115 of the Code though, however,
on the principle on which Article 227 of the
Constitution can be exercised he may
invoke the power of superintendence
conferred upon the High Court by the
Constitution under Article 227 of the
Constitution thereof. But if the party
approaches the concurrent jurisdiction of
the High Court straightaway then the
applicant and opposite party - both may
approach the Supreme Court under Section
25 of the Code, if aggrieved by the order of
the High Court. But once the High Court
passes an order under Section 24 on an
application of an unsuccessful applicant
before the District Judge, the order of the
District
Judge
stands
overruled
by
implication on passing of the order by the
High Court. As such in the facts and
circumstances of the present case, the
application under Section 24 of the Code
before this Court is maintainable.

12. The decision in Jagdish Kumar
was followed in Ishtiyak Ahmad v. Smt.
Meena and others9, where it was observed
:

5. The remedy under Article 227
of the Constitution of India is an
extraordinarily remedy of discretionary
nature and it cannot be ordinarily permitted
to be invoked if the party has any
alternative statutory remedy for getting the
desired relief.

6. The jurisdiction under section
24,
C.P.C.
is
concurrent
jurisdiction
conferred both upon the District Judge and
5 All. Bhonu Patel Vs. State of U.P. & Ors.
1627
the High Court. Therefore, if an application
under section 24, C.P.C. has been rejected,
the party aggrieved may move a fresh
application before the High Court under
section 24, C.P.C. itself as has also been
laid down by the aforesaid decision.

13. While the decision in Jaikaran
Singh did not notice the earlier decisions in
Smt.
Sunita
Devi
and
Indian
Oil
Corporation Ltd., taking a contrary view,
it is equally true that in Smt. Sunita Devi
and Indian Oil Corporation Ltd. the very
well reasoned decision in Jagdish Kumar
was not brought to their Lordships' notice.

14. For the reasons I have already
indicated, I am inclined to the view taken in
Jagdish Kumar and Jaikaran Singh, but,
bearing in mind the requirements of
judicial discipline and the fact that there are
contradictory views expressed by learned
Judges of this Court sitting singly, I am of
opinion that the question involved ought to
be authoritatively decided by a larger
Bench.

15. In the circumstances, the
following
question
is
referred
for
consideration by a larger Bench :

Whether against an order made
by the District Court, refusing a transfer
application under Section 24 of the Code of
Civil Procedure, 1908 an application for
transfer on the same grounds by the same
party is maintainable before the High Court
under Section 24 CPC?

16. Until decision of the case by
larger Bench, further proceedings in Civil
Appeal No. 40 of 2016, pending before the
Ist Additional Civil Judge, Mainpuri shall
remain stayed.

17. Let papers of this case be laid by
the Registry before His Lordship the
Hon'ble the Chief Justice for appropriate
orders, at the earliest.
----------
(2022)05ILR A1627
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.05.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Crl. Misc. Application U/S 482 No. 9715 of 2022

Bhonu Patel ...Applicant
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Arvind Kumar Kushwaha, Pooja

Counsel for the Opp. Parties:
G.A.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973
- Section 156(3)
-
Property dispute-litigation ongoing-one of
the parties has executed sale deed-it has
also been executed by the purchasersApplication
u/s
156
(3)
treated
as
complaint case by the Magistrate-just and
reasonable.

Application dismissed. (E-9)

List of Cases cited:

1. Lalita Kumari Vs Govt. of U.P. & ors. AIR
2014 SC 187

2. Anmol Singh Vs St. of U.P. & ors. 2021 0
Supreme(All) 10 2021 1 ADJ 400

3. Ramdev Food Products Pvt. Ltd. Vs St. of Guj.
AIR 2015 Supreme Court 1742

4. Sukhwasi Vs St. of U.P. (2007) 59 SCC page
739