# Singh v. Union on India and others in

- **Citation:** (2006) 3 ILRA 1223
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-22
- **Case number:** Civil Misc. Transfer Application No. 277 of 2006
- **Bench:** O.P. Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/singh-v-union-on-india-and-others-in-40682
- **Pages:** 3

## Headnote

Code of Civil Procedure-Section 23, 24Transfer
of
suit-from
Lucknow
to
Jaunpur-admittedly the case is pending
before Principal judge family Court at
Lucknow-held-in view of Nasruddin's
case-application
for
transfer
at
Allahabad not maintainable-returned for
presentation
before
the
concerned
Bench.

Held: Para 7, 8

Therefore, in my opinion, in view of
Section 23 of Code of Civil Procedure and
the above observations of the Hon'ble
Supreme court in Nasiruddin's case
(supra), the application for transfer of
case pending at Lucknow within the
territorial jurisdiction of Hon'ble Judges
at Lucknow, shall lie at Lucknow and not
at Allahabad. Therefore, office objection
in
regard
to
the
jurisdiction
is
sustainable.
1224 INDIAN LAW REPORT ALLAHABAD SERIES [2006
However, Hon'ble Supreme Court in
Nasiruddin's case (supra) has observed
that if a case is wrongly presented at
Allahabad,
the Judges at Allahabad
cannot dismiss it but the case should be
returned for filing before the Judges at
Lucknow.
Case law discussed:
1975 (2) SCC-671 relied on

## Text

3All] Smt. Seema Dubey V. Principal Judge Family Court, Lucknow and others 1223
8. Under these circumstances when
it is sufficiently proved that the medical
certificate had been filed with the form,
the permission to file its copy does not
amount to admission of a new document
and so the bar which was prescribed in the
advertisement regarding filing of new
documents does not apply to the present
case and to acceptance of the prayer of the
petitioner.

9. We may further add that in writ
petition No. 58636 of 2006 Ravi Pratap
Singh Vs. Union on India and others in
which also the form was rejected on the
ground of non-submission of the medical
certificate. We refused to allow the prayer
of the petitioner to file the medical
certificate because in this case column no.
8 of the application, had been left blank
by the petitioner and it had not been
asserted that medical certificate was being
filed along with the form. But in the
present case it is sufficiently proved that
medical certificate was being filed along
with the form. But in the present case it is
sufficiently proved that medical certificate
had been filed along with the application.

10. We are therefore permitting the
petitioner to file a copy of the medical
certificate because when a document has
been lost in the office of the respondent,
there is no legal bar to file its copy at the
subsequent stage.

11. The writ petition, is therefore,
allowed and the petitioner is permitted to
file the photocopy of the medical
certificate
dated
22.7.2006.
The
respondents shall consider that medical
certificate and shall not reject the
application form of the petitioner on the
ground of non-filing of the medical
certificate.
Writ Petition Stands allowed subject
to the above observations.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2006.

BEFORE
THE HON'BLE O.P. SRIVASTAVA, J.

Civil Misc. Transfer Application No. 277 of
2006

Smt. Seema Dubey

...Applicant
Versus
Principal Judge Family Court, Lucknow
and others

 ...Opposite Parties

Counsel for the Applicant:
Sri R.P. Upadhyay

Counsel for the Opposite Parties:

Code of Civil Procedure-Section 23, 24Transfer
of
suit-from
Lucknow
to
Jaunpur-admittedly the case is pending
before Principal judge family Court at
Lucknow-held-in view of Nasruddin's
case-application
for
transfer
at
Allahabad not maintainable-returned for
presentation
before
the
concerned
Bench.

Held: Para 7, 8

Therefore, in my opinion, in view of
Section 23 of Code of Civil Procedure and
the above observations of the Hon'ble
Supreme court in Nasiruddin's case
(supra), the application for transfer of
case pending at Lucknow within the
territorial jurisdiction of Hon'ble Judges
at Lucknow, shall lie at Lucknow and not
at Allahabad. Therefore, office objection
in
regard
to
the
jurisdiction
is
sustainable.
1224 INDIAN LAW REPORT ALLAHABAD SERIES [2006
However, Hon'ble Supreme Court in
Nasiruddin's case (supra) has observed
that if a case is wrongly presented at
Allahabad,
the Judges at Allahabad
cannot dismiss it but the case should be
returned for filing before the Judges at
Lucknow.
Case law discussed:
1975 (2) SCC-671 relied on

(Delivered by Hon'ble O.P. Srivastava, J.)

1. This is an application by Smt.
Seema Dubey purported to be under
Section 24 of the Code of Civil Procedure
praying that Regular Suit no. 397 of 2006
Shri Kant Dubey Versus Seema Dubey
under Section 13 of the Hindu Marriage
Act, be Transferred from the Court Of
Principal Judge, Family Court, Lucknow
to the court of competent jurisdiction at
Jaunpur.

2. The office has raised following
objection regarding maintainability of the
application:-

"S.R. has to submit that this
application is not maintainable in this
Hon. High Court at Allahabad. It should
be filed at Lucknow Bench."

3. Under Section 24 Code of Civil
Procedure the High Court, on the
application of any of the parties, may at
any stage withdraw any proceedings
pending in any court subordinate to it and
transfer the same for trial or disposal to
any court subordinate to it and competent
to try or dispose of the same. However,
question is as to where application for
transfer would lie. In my opinion, the
relevant provision is contained under
section 23 of the Code of Civil Procedure,
which is as follows:

"23. to what Court application
lies.-(1) Where the several Courts having
jurisdiction are subordinate to the same
Appellate Court, an application under
Section 22 shall be made to the Appellate
Court.
(2) Where such Courts are subordinate
to different Appellate Court but to the
same High Court, the application shall be
made to the said High Court.
(3) Where such Courts are subordinate
to different High Courts, the application
shall be made to the High Court within
the local limits of whose jurisdiction the
Court, in which the suit is brought, is
situate."

4. From the above provision it is
clear
that
where
the
Courts
are
subordinate to different Appellate Courts
but to the same High Court, the
application shall be made to the said High
Court and where such Courts are
subordinate to different High courts, the
application shall be made to the High
court within the local limits of whose
jurisdiction the Court, in which the suit is
brought, is situate.

5. The matter of jurisdiction has to
be examined in light of the above facts,
provision of law and the judgment of
Hon'ble Supreme Court rendered in Sri
Nasiruddin
Vs.
State
Transport
Appellate Tribunal- (1975) 2 SCC 671
in regard to the jurisdiction at Lucknow
and Allahabad in relation to High Court.
Hon'ble Supreme Court in the said case
has held that the case falling within the
jurisdiction at, Lucknow are to be
presented
at
Lucknow
and
not
at
Allahabad. Relevant portions of the said
judgment are extracted here below to
facilitate the proper appreciation.
3All] Virendra Kumar Srivastava V. State of U.P. and others 1225
"...............The conclusion as well
as the reasoning of the High court that the
permanent seat of the High Court is at
Allahabad is not quite sound.

.......................................

A case falling within the jurisdiction
of
Judges
at
Lucknow
should
be
presented
at
Lucknow
and
not
at
Allahabad.

 .....................A case pertaining
to the jurisdiction of the Judges at
Lucknow and presented before the Judges
at Allahabad cannot be decided by the
Judges at Allahabad in absence of an
order contemplated by the second proviso
the Article 14 of the Amalgamation
Order, 1948."

6. From the above, it is apparent that
the Judges at Lucknow and Allahabad
have to exercise jurisdiction over the
cases cognizable at the two places in
relation to their territorial jurisdiction.

7. Therefore, in my opinion, in view
of Section 23 of Code of Civil Procedure
and the above observations of the Hon'ble
Supreme court in Nasiruddin's case
(supra), the application for transfer of
case pending at Lucknow within the
territorial jurisdiction of Hon'ble Judges
at Lucknow, shall lie at Lucknow and not
at Allahabad. Therefore, office objection
in regard to the jurisdiction is sustainable.

8. However, Hon'ble Supreme Court
in Nasiruddin's case (supra) has observed
that if a case is wrongly presented at
Allahabad, the Judges at Allahabad
cannot dismiss it but the case should be
returned for filing before the Judges at
Lucknow.

9. Therefore, while holding that the
application
is
not
entertainable
at
Allahabad, it is hereby directed that the
same be returned for presentation at
Lucknow.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2006

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 11550 of 2003

Virendra Kumar Srivastava ...Petitioner
Versus
State of U.P. through its Secretary
Mahila
Kalyan
&
Bal
Vikas
U.P.
Government Bapu Bhawan, Lucknow and
others

 ...Respondent

Counsel for the Petitioner:
Sri Yogesh Agarwal
Sri S.C. Budhwar
Sri V.B. Yadav
Sri J.P. Tripathi

Counsel for the Respondents:
Sri M.A. Qadeer
Sri S.M.A. Kazmi
Sri C.B. Yadav

Constitution of India, Art-226-Service
law-Process
of
selection-periodexplained-petitioner
being
placed
at
serial
No.10
in
waiting
list-claimed
appointment-as
nine
candidates
not
joined and 11 candidates resigned after
joining-whether is the refusal from
joining of petitioner valid? Held-'Yes'-
after joining of selected candidatesselection process end-candidates from
waiting list can be appointed if within
one year candidature from waiting list
can be appointed if within one year
candidature
of
selected
candidates
cancelled by any reason-petitioner can
not be appointed.

Held-Para 12 and 14