# Smt. Geeta Srivastava v. Sri A.K. Saxena, Judge Family Court, Gorakhpur and others

- **Citation:** (2007) 1 ILRA 219
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-11-17
- **Case number:** Civil Misc. Transfer Application No. 260 of 2006
- **Bench:** Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-srivastava-v-sri-a-k-saxena-judge-family-court-gorakhpur-and-others-40834
- **Pages:** 6

## Headnote

Code of Civil Procedure Section 24
readwith Family Court Act-Section-8Transfer of cases pending before judge
family court to Additional District Judge
of the same district-despite of the
provision of exclusion of jurisdiction
transfree court would be deemed as
competent court.

Held: Para 7

In the same manner, if this court under
Section 24 C.P.C. makes an order of the
transfer of a particular case pending in a
court,
which
possesses
territorial
jurisdiction for its trial to a court
functioning in another district in that
event also the transferee court acquires
territorial jurisdiction for the trial or
hearing
of
the
transferred
case.
Therefore, if the cases referred to in
paragraph-11
of
the
petition
are
withdrawn from the court of Principal
Judge, Family Court and transferred to a
court of other Additional District Judge
whose jurisdiction for its trial is excluded
by-Section 8 of Family Courts Act, the
transferee court would be deemed as a
competent
court
for
its
trial
notwithstanding the provision of Section
8 of the Family Courts Act. Therefore, the
submissions
of
the learned counsel
appearing for the opposite parties that
the case could not be transferred to any
other
court
within
the
district
of
Gorakhpur, does not appear to have
much relevance simply because of the
provisions contained in Section 8 of
Family Court Act.

## Text

1 All] Smt. Geeta Srivastava V. Sri A.K. Saxena, Judge Family Court and others
219
the Motor Accident Claims Tribunal,
Moradabad, contained respectively in
Annexures 2 and 3 to the petition are
quashed. The Tribunal shall reopen the
proceedings, hear the case on merits and
conclude the controversy expeditiously.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2006

BEFORE
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Transfer Application No. 260 of
2006

Smt. Geeta Srivastava
...Applicant
Versus
Sri A.K. Saxena, Judge Family Court,
Gorakhpur and others ...Respondents

Counsel for the Applicant:
Sri Amish Srivastava

Counsel for the Respondents:
Sri Shashi Nandan
Sri K.K. Mani
Sri Abhishek Srivastava
Sri Shyamal Narain

Code of Civil Procedure Section 24
readwith Family Court Act-Section-8Transfer of cases pending before judge
family court to Additional District Judge
of the same district-despite of the
provision of exclusion of jurisdiction
transfree court would be deemed as
competent court.

Held: Para 7

In the same manner, if this court under
Section 24 C.P.C. makes an order of the
transfer of a particular case pending in a
court,
which
possesses
territorial
jurisdiction for its trial to a court
functioning in another district in that
event also the transferee court acquires
territorial jurisdiction for the trial or
hearing
of
the
transferred
case.
Therefore, if the cases referred to in
paragraph-11
of
the
petition
are
withdrawn from the court of Principal
Judge, Family Court and transferred to a
court of other Additional District Judge
whose jurisdiction for its trial is excluded
by-Section 8 of Family Courts Act, the
transferee court would be deemed as a
competent
court
for
its
trial
notwithstanding the provision of Section
8 of the Family Courts Act. Therefore, the
submissions
of
the learned counsel
appearing for the opposite parties that
the case could not be transferred to any
other
court
within
the
district
of
Gorakhpur, does not appear to have
much relevance simply because of the
provisions contained in Section 8 of
Family Court Act.

(Delivered by Hon'ble Umeshwar Pandey. J.)

Heard
learned
counsel
for
the
applicant.

1. This transfer petition under
Section 24 of C.P.C. has been filed
seeking transfer of five pending matters
detailed in paragraph-11 of the petition
from the court of Principal Judge Family
Court to any other court in the district.

2. There is a complaint against the
Presiding Officer of the concerned court
in annexure-3 to the petition, which bas
been made the entire basis for seeking the
transfer.
This
complaint
has
been
addressed to Hon'ble the Chief Justice
spelling
out
extremely
scandalous
allegations against the Presiding Officer.
The petitioner has not spared even the
District Judge of concerned district
against whom there is accusation that he
has prejudice against her because he
wanted to marry his daughter with
220 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
petitioner's
husband
earlier
to
the
petitioner's marriage. The comments of
the concerned District Judge have been
received in this context in which he has
though, admitted that the proposal was
once made but subsequently he himself
did not find this proposal as appropriate
for his daughter's marriage. Obviously,
this sort of allegation against the District
Judge, who has absolutely no concern in
the aforesaid pending matters himself,
demonstrates
to
the
extent
of
hardheadedness of the petitioner lady. In
the
accusations
made
against
the
Presiding Officer, she has also made some
reference to certain conversations and:
talks,
which
the
Presiding
Officer
allegedly had with the lady in his
chamber. Those facts, as disclosed in the
complaint, have been categorically denied
by the Judge Family Court in his
comments submitted before this court.
Otherwise also these charges, which have
been lavelled in the complaint, appear to
be wholly frivolous and baseless. Nothing
is there on record to indicate as to what
has happened in the inquiry against the
officer but on the face of it, these
accusations being extremely scandalous
appear
to
be
wholly
absurd
and
unacceptable. Certain other sundry factual
incidents have been narrated in this
complaint
supporting
to
petitioner's
accusation regarding prejudice that the
court has allegedly acquired against her. It
is on these grounds that the petitioner has
submitted that she would not be getting
justice at the hands of the Presiding
Officer of the court and is in-charge of
those cases for its disposal.

3. As already referred to above, the
entire accusations made against the
Presiding Officer has been categorically
denied and otherwise also, I do not feel
such accusation made against a Judicial
Officer of the seniority possessed by the
Principal Judge Family Court, Gorakhpur,
can ever be correct and acceptable. There
is absolutely no strength in the grounds
taken by the petitioner for transfer of
those cases from that court to any other
court. Accordingly. the petition being
wholly misconceived is hereby dismissed.

4. Besides above, the allegations
made
against
the Presiding
Officer
assassinating his character and conduct in
relation
to
his
approach
towards
petitioner's cases pending before him,
being wholly scandalous and frivolous,
there is one big question, which may be
noticed that after so much scandalisation
of Officer's character would it be
justifiable to keep the cases in that court
over which he is Presiding? The answer
would be in the negative. May be that the
Presiding Officer, who has put in so much
of service in the judicial wing deciding
the cases, must have acquired enough will
power to sustain his cool while finally
deciding the matter and delivering the
judgment. But it apparently does not
appear just that the cases, which are
before him, should any further-remain
there waiting for his decision. It would be
always just and-proper that the cases
should be transferred to some other court
for decision, which may also appear to be
fair and unprejudiced. The justice done in
a particular matter between the parties
ought to appear that the justice in
actuality, has been done. Therefore, in
pursuance to this if the, cases; are
transferred from the court of present
Principal Judge Family Court to any other
court, it would be more justifiable. In this
context, submission was made from the
side of the counsel appearing for the
opposite parties that there being only one
1 All] Smt. Geeta Srivastava V. Sri A.K. Saxena, Judge Family Court and others
221
designated Family Court in the district,
the other courts functioning there are not
supposed to be competent courts for
disposal of those matters in the face of
provisions of Section 8 of the Family
Courts Act. The provision excludes the
jurisdiction of other courts in the district
from exercising jurisdiction in respect of
any suit or proceeding of the nature
referred to in the explanation to Section 7
(i) of the said Act.

5. While dealing with the aforesaid
submissions, it would be pertinent that the
provisions of Section 8·of the Family
Courts Act as well as provisions of
Section 24 of C.P.C. should be extracted
below to facilitate the discussion on the
point:

8. Exclusion of Jurisdiction and
pending proceedings:
Where a Family Court has been
established for any area.-
(a)
no
district
court
or
any
subordinate civil court referred to in subsection (1) of Section 7 shall, in relation
to such area, have or exercise any
jurisdiction in respect of any suit or
proceeding of the nature referred to in the
Explanation to that sub-section;
(b) no Magistrate shall, ·in relation
to such area, have or exercise any
jurisdiction or powers under Chapter IX
of the Code of Criminal Procedure, 1973
(2 of 1974);
(c) every suit or proceeding of the
nature referred to in the Explanation
under Chapter IX of the Code of Criminal
Procedure, 1973 (2 of 1974);-
(i) which is pending immediately
before the establishment or such Family
Court before any district court or
subordinate court referred to in that subsection or, as the case may be, before any
Magistrate under the said Code; and
(ii) which would have been required
to be instituted or taken before or by such
Family Court if, before the date on which
such suit or proceeding was instituted or
taken, this Act had come into force and
such Family Court had been established,
shall stand transferred to such Family
Court on the date on which it is
established.

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) re-transfer 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 subsection (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 points at which It was transferred or
withdrawn.
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
[(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 Causes 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.]

6. No doubt, Section 8 of the Family
Courts Act says that where a Family
Court has been established for an area, no
district court or any subordinate court
functioning in that area shall exercise any
jurisdiction in respect of any suit or
proceeding of the nature referred to in the
Explanation of Section 7 (i) of the said
Act. There is definite exclusion of the
jurisdiction of other courts functioning in
the district after a designated Family
Court has been established there. It may,
therefore, sound justified that a matter
pertaining to the jurisdiction of the Family
Court pending there, it cannot be
transferred to any other court in that
district for its disposal. But in this
context, the provision of sub-section (4)
of Section 24 C.P.C. may be referred,
which says that if a particular suit or
proceeding is transferred to any regular
court after withdrawing the same from a
court of Small Causes, the court trying
that suit or proceeding shall for the
purposes of such suit or proceeding would
be deemed to be a court of Small Cause.
An identical provision to that of Section 8
of the Family Courts Act, is available in
Section 16 of the Provincial Small Cause
Courts Act, which reads as below:-

16. Exclusive Jurisdiction of Courts
of Small Causes.- Save as expressly
provided by this Act or by any other
enactment for the time being in force, a
suit cognizable by a Court of Small
Causes shall not, be tried by any other
Court having jurisdiction within the local
limits of the jurisdiction of the Court of
Small Causes by which the suit is triable.

7. This provision also excludes the
jurisdiction of other courts in the district
for trying suit cognizable by a Small
Causes Court after a designated court of
Small Causes is established thereJ4rispite· of this exclusion of jurisdiction of
the other courts the aforesaid sub-section
(4) of Section 24 C.P.C. says that after
withdrawal of the suit of Small Cause
nature from the court of Judge Small
Causes, if transferred under this Section
to any other court, the transferee court for
the purposes, of such suit shall be deemed
to be a court of Small Causes; meaning
thereby that on passing of an order of
transfer under Section 24 C.P.C. the case
when reaches to a court not having
jurisdiction on account of exclusion of the
jurisdiction by Section 16 of Provincial
Small Cause Courts Act, it acquires such
jurisdiction by virtue of transfer itself.
Section 24 of.C.P.C. confers general
power of transfer of cases upon this court.
There are definite provisions in the Code
regarding territorial jurisdiction of a court
where the suit may legally be instituted.
These provisions are contained from
Section 15 to 20 of the Code of Civil
Procedure.
Obviously,
every
court
functioning in the State or in the district
does not have power to take cognizance
of a particular case the cause of action of
1 All] Smt. Geeta Srivastava V. Sri A.K. Saxena, Judge Family Court and others
223
which does not fall in the extent of its
territorial jurisdiction but by virtue of this
general power of transfer, this court has
jurisdiction to withdraw the case and
transfer it for disposal to any subordinate
court competent to try or dispose of the
same in any other district of the State.
Any way, the aforesaid Section 15 to 20
of C.P.C. virtually exclude the jurisdiction
of other courts in whose territorial the
cause of action for the suit has not arisen,
still this court, if transfers a particular
case to any other court in the State, it
acquires territorial jurisdiction to try and
dispose of the said case. The territorial
jurisdiction stands virtually conferred
upon that court by the order of transfer
passed under Section 24 C.P.C. It is
therefore, clear that in case this court or
the court of District Judge makes an order
of transfer under Section 24 C.P.C. the
transferee court acquires jurisdiction for
the trial of that case notwithstanding the
exclusion of jurisdiction by any other
provision of an statute. In the same
manner, if this court under Section 24
C.P.C. makes an order of the transfer of a
particular case pending in a court, which
possesses territorial jurisdiction for its
trial to a court functioning in another
district in that event also the transferee
court acquires territorial jurisdiction for
the trial or hearing of the transferred case.
Therefore, if the cases referred to in
paragraph-11
of
the
petition
are
withdrawn from the court of Principal
Judge, Family Court and transferred to a
court of other Additional District Judge
whose jurisdiction for its trial is excluded
by-Section 8 of Family Courts Act, the
transferee court would be deemed as a
competent
court
for
its
trial
notwithstanding the provision of Section
8 of the Family Courts Act. Therefore, the
submissions of the learned counsel
appearing for the opposite parties that the
case could not be transferred to any other
court within the district of Gorakhpur,
does not appear to have much relevance
simply
because
of
the
provisions
contained in Section 8 of Family Court
Act.

8. In the aforesaid view of the
matter, those cases may be transferred
from the court of Principal Judge, Family
Court to any other court. All the five
pending matters namely (i) Suit No.15 of
2006 under Guardianship and Wards Act
(ii) Suit No. 91 of 2005 for divorce·(iii)
Suit No. 697 of 2005 for injunction
restraining applicants not to damage the
house situated at Batiya Hata in which
admittedly applicant lives (iv) Suit No.9
of 2006 by applicant as indigent of
injunction restraining respondent not to
eject applicant from the house (v) Suit
No. 180 of 2005·for maintenance, are
hereby transferred from the court of
Principal Judge Family Court to the court
of first Additional District Judge, who
shall start taking all these cases on
priority basis and will decide one by one
by holding day to day hearing/proceeding
in the matter. The suit pertaining to the
grant of relief for decree of divorce shall
be taken up first for hearing and decision
and thereafter other matters shall be
disposed of by regular hearing one by
one. Unnecessary indulgence of the court
for adjournment on the request of either
of the parties shall be discouraged with
hard hands.
----------
224 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.09.2006

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal
Misc.
Bail
Cancellation
Application No.12170 of 2004

Satyendra Yadav

...Applicant
Versus
State of U.P. & another ...Opposite Parties

Counsel for the Applicant:
Sri Rajesh Kumar Sharma

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 482Cancellation of Bail granted by Session
judge-on
the
ground-counsel
who
appeared before the session court-power
of appearance bears no signature of the
counsel-No allegation about fleeing from
justice
or
hampering
trail-held-said
technicality can not be ground for
cancellation by bail.

Held: Para 10
Further the contentions of the counsel
for the applicant that the power filed on
behalf of the accused did not contain the
signature of the counsel, I am of the
view that the said technicality is no
ground to cancel the bail. A perusal of
the power definitely shows that the
counsel who appeared on behalf of the
applicant had got his stamp affixed in
the memo. That, in my view is sufficient
compliance so far as engagement of a
counsel is concerned in a criminal
matter.

(Delivered by Hon'ble Vinod Prasad. J.)

1. Heard Sri R.K. Sharma, learned
counsel for the applicant and the learned
A.G.A.

2. The accused respondent was
granted bail on 6.7.2004 by Additional
Sessions Judge/Special Judge S.C./S.T.
Act, Ghaziabad. The bail granting order
has been filed along with this bail
cancellation application, which indicates
that the Lower Court considered three
aspect of the matter while granting ball to
the accused respondent.

3. The first aspect was that there was
no intention to commit murder of the
deceased as he had received a single fatal
injury by assault made by a cricket bat
and therefore, the offence will not travel
beyond the scope of Section 304 part II
I.P.C. and no offence under Section 302
I.P.C. was prima-facie made out.

4. The second reason for granting of
bail was that it was a casa of a sudden
fight at the spur of the moment without
any pre-meditation.

5. The third reason was that a cross
case under Sections 452, 323, 504 and
506 I.P.C. initiated by the wife of the
present accused, respondent, was also
lodged. The said F.I.R. was registered as
crime no.436A of 2004. The ancillary
reason, which is mentioned by the
Additional Sessions Judge was that the
accused is an athlete champion and son of
a senior advocate. He also belongs to a
respectable family and there was no
chance of his absconding. The Additional
Sessions
Judge
has
observed
in
concluding portion of the order that there
was a single injury on the head. The wife
of the accused had also sustained simple
injuries in the same incident. The incident
had taken place at the spur of the moment
regarding the return of two lacs rupees.