# Smt. Juglesh Kumari & Ors v. Ifco Tokiyo General Insurance Co. Ltd., Agra

- **Citation:** (2023) 1 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-03
- **Case number:** Civil Misc. Transfer Application No. 68 of 2022
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-juglesh-kumari-ors-v-ifco-tokiyo-general-insurance-co-ltd-agra-49576
- **Pages:** 6

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Sections 24(1)(b) & 24-Transfer
application-maintainability
of-Certain
questions referred for consideration by
Larger
Bench-(1)
Whether
Tribunal
constituted under Motor Vehicles Act,
1988 is a court subordinate to High Court
for purpose of exercise of power of
transfer u/s 24(1)(b) of Code-(2) Whether
by extension of principle laid down by Full
Bench in Kamal Yadav case a Tribunal
constituted under Motor Vehicles Act,1988
is a court subordinate to High Court for
purpose of Section 24(1)(b) of the Code-
(3) Whether decision of single Judge in
Shankar Lal Jaiswal's case correctly lays
down law in holding that a Tribunal
constituted under Motor Vehicles Act,
1988 is not court subordinate to High
Court within meaning of section 24 of
Code-Till decision of Larger Bench there
shall
be
interim
stay
of
further
proceedings in pending petitions before
Claim Tribunals.(Para 1 to 8) (E-6)
1 All. Smt. Juglesh Kumari & Ors. Vs. Ifco Tokiyo General Insurance Co. Ltd., Agra
123
List of Cases cited:

## Text

122 INDIAN LAW REPORTS ALLAHABAD SERIES
relying on the judgment of this Court in
Kiran Singh v. Chaman Paswan [Kiran
Singh v. Chaman Paswan, AIR 1954 SC
340] , the learned Single Judge held that
defect of jurisdiction whether pecuniary or
territorial or to the subject-matter cannot be
cured and can be set up at any stage of the
proceeding.

69. We thus hold that even when
the Court of Additional District Judge was
not competent to decide the small causes
suit in question on the ground that the
pecuniary jurisdiction is vested in the Court
of Small Causes i.e. Civil Judge, Senior
Division w.e.f. 7-12-2015, no interference
was called in the judgment of the
Additional District Judge in the exercise of
revisional jurisdiction by the High Court in
view of the provisions of Section 21 of the
Civil Procedure Code."

17. The aforesaid position of the law
makes it clear that ''pecuniary jurisdiction'
and ''territorial jurisdiction' are different
from ''jurisdiction relating to subject matter'
or inherent lack of jurisdiction. The first
two have to be raised at the earliest
opportunity; else, these must be deemed to
be waived. As remarked by the Supreme
Court in Om Prakash Agarwal, the
legislative policy is not to defeat a
concluded trial on merits on the basis of a
technical objection, like pecuniary or
territorial jurisdiction. This precisely is the
case here, where the tenant has allowed the
trial to proceed through all stages and taken
the objection about lack of pecuniary
jurisdiction at a stage when, post remand,
the trial has been concluded and the
judgment already on the anvil of delivery.

18. In the considered opinion of this
Court, there is no merit in this revision. It
fails and is dismissed.
----------
(2023) 1 ILRA 122
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2023

BEFORE

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

Civil Misc. Transfer Application No. 68 of 2022
Transfer Application (Civil) No. 278 of 2016
Transfer Application (Civil) No. 394 of 2022
Transfer Application (Civil) No. 466 of 2022
Transfer Application (Civil) No. 505 of 2022
Transfer Application (Civil) No. 778 of 2022
And
Transfer Application (Civil) No. 809 of 2022

Smt. Juglesh Kumari & Ors. ...Applicants
Versus
Ifco Tokiyo General Insurance Co. Ltd.,
Agra ...Opposite Party

Counsel for the Applicants:
Sri Prashant Shukla

Counsel for the Respondents:

A. Civil Law - Code of Civil Procedure,
1908 - Sections 24(1)(b) & 24-Transfer
application-maintainability
of-Certain
questions referred for consideration by
Larger
Bench-(1)
Whether
Tribunal
constituted under Motor Vehicles Act,
1988 is a court subordinate to High Court
for purpose of exercise of power of
transfer u/s 24(1)(b) of Code-(2) Whether
by extension of principle laid down by Full
Bench in Kamal Yadav case a Tribunal
constituted under Motor Vehicles Act,1988
is a court subordinate to High Court for
purpose of Section 24(1)(b) of the Code-
(3) Whether decision of single Judge in
Shankar Lal Jaiswal's case correctly lays
down law in holding that a Tribunal
constituted under Motor Vehicles Act,
1988 is not court subordinate to High
Court within meaning of section 24 of
Code-Till decision of Larger Bench there
shall
be
interim
stay
of
further
proceedings in pending petitions before
Claim Tribunals.(Para 1 to 8) (E-6)
1 All. Smt. Juglesh Kumari & Ors. Vs. Ifco Tokiyo General Insurance Co. Ltd., Agra
123
List of Cases cited:
1. Shankar Lal Jaiswal Vs Asha Devi &
ors.(2018) SCC Online All 2545: (2019) 132 ALR
809

2. Kamla Yadav Vs Smt. Sushma Devi &
ors.(2004) 22 LCD 40

3. Smt. Afsari Begum Vs Oriental Fire & Gen.
Ins. Co. & ors.(1979) SCC Online All 191: 1979
AWC 438

4. Kamla Yadav Vs Smt. Sushma Devi ors. 2004
(22) LCD 40

(Delivered by Hon'ble J.J. Munir, J.)

1. The question of maintainability of
these applications under Section 24 of the
Code of Civil Procedure, 19081 has arisen
in view of the decision of a learned Single
Judge in Shankar Lal Jaiswal v. Asha Devi
and others2. In Shankar Lal Jaiswal
(supra) the learned Single Judge has held
that an application under Section 24 of the
Code to transfer a claim petition pending
before the Motor Accident Claims Tribunal
would not lie to this Court. It has been held
in the said decision that a Tribunal
constituted under the Motor Vehicles Act,
19883 is not a Court subordinate to the
High Court, within the meaning of Section
24(1)(b)
of
the
Code.
No
transfer
application would lie to this Court for
transferring a claim petition from one
Motor Accident Claims Tribunal to another,
constituted under the Act. It would be
profitable to quote in extenso what was
held in Shankar Lal Jaiswal, which is as
follows :

3. A Motor Accident Claim
Petition is filed before a Motor Accident
Claims Tribunal, which is constituted by
the State Government in accordance with
the provisions contained in Section 165 of
the Motor Vehicles Act, 1988 (hereinafter
referred to as the Act). This section
empowers
the
State
Government
to
constitute by notification, one or more
motor accidents Claims Tribunals for the
area specified in the notification, for
adjudicating claims for compensation in
respect of accidents involving death or
bodily injury to persons arising out of the
use of a motor vehicle or for damage to any
property of a third party, so arising or both.

4. This section also provides the
qualification
of
a
person
for
his
appointment as a Member of the Claims
Tribunal.

5. Sub-section 4 of Section 165
states that where two or more Claims
Tribunals are constituted for one area, the
State Government can, by a special or
general order, regulate the distribution of
business among them.

6. In accordance with Section
166(2) of the Act, a claimant can file a
claim petition before a Claims Tribunal.

(i) having jurisdiction over the
area in which the accident occurred

or

(ii) Claims Tribunal within whose
local limits the claimant resides or carries
on business

or

(iii) within the local limits of
whose jurisdiction the defendant resides.

7. Section 169 provides the
procedure and powers of the Claims
Tribunals
constituted
by
the
State
Government by notification in exercise of
powers conferred by Section 165. It
provides that the Claims Tribunal may
follow such summary procedure as it things
fit, subject to the Rules that may be made
for the purpose.

8. Sub-section 2 of Section 169
provides that the Claims Tribunal shall
have all powers of a Civil Court for the
124 INDIAN LAW REPORTS ALLAHABAD SERIES
purpose of taking evidence on oath,
enforcing attendance of witnesses and for
compelling discovery and production of
documents and material objects.

9. It is also deemed to be a Civil
Court for the purposes of Section 195 and
Chapter 26 of the Code of Criminal
Procedure, 1973.

10. Section 175 specifically bars
the jurisdiction of Civil Courts for an area
where
a
Claims Tribunal
has
been
constituted by the State Government, under
Section 165.

11. Section 176 confers the Rule
making power upon the State Government.
It also provides that Rules can be framed
regarding the powers of a Civil Court,
which may be exercised by a Claims
Tribunal.

12.
In
exercise
of
the
aforementioned rule making power, the
U.P. Motor Vehicle Rules, 1998 have been
framed. Rule 221 thereof, reads as
follows:--

"221. Code of Civil Procedure to
apply in certain cases.- The following
provisions of the First Schedule to the Code
of Civil Procedure, 1908 shall so far as
may be apply to proceedings before the
Claims Tribunal, namely, Rules 9 to 13 and
15 to 30 of Order V; Order IX, Rules 3 to
10 of Order XIII, Rules 2 to 21 of Order
XVI; Order XVII; and Rules 1 to 3 of Order
XXIII."

13. From a conjoint reading of
the provisions noticed above, it emerges
that the Motor Vehicle Act is a complete
code in itself. It is also clear from a bare
reading of Rule 221 that Section 24 of the
Civil Procedure Code has no application to
matters before the Motor Accident Claims
Tribunal.

14. Section 24, Civil Procedure
Code, which has been invoked in these
transfer applications, confers a general
power of transfer and withdrawal of a suit,
appeal or proceeding upon the High Court
or the District Judge, pending in any Court
subordinate to them.

15. The words "subordinate to it"
occurring in Section 24(1)(b) are, in my
considered opinion, crucial for deciding the
controversy at hand.

16. Since a Claims Tribunal is
created by a notification of the State
Government under the provisions of the
Motor Vehicles Act, it cannot be said that
such Tribunal is a Court subordinate to the
High Court within the meaning of the term
occurring in Section 24 CPC, despite the
fact that an award of the Claims Tribunal is
appealable to the High Court under Section
173.

2. This matter has come up before me
sitting singly. Speaking for myself, I could
not have agreed more both with the
reasoning and the conclusions of the
learned Single Judge in Shankar Lal
Jaiswal. But, a difficulty is posited
because, in the exercise of revisional
jurisdiction of this Court, the same question
had arisen before the Full Bench in Kamla
Yadav v. Smt. Sushma Devi and others4,
where the Full Bench had the following
questions
for
consideration
of
their
Lordships :

Whether
Claims
Tribunal
constituted under the Motor Vehicles Act is
a subordinate Civil Court within the
meaning of Section 115 of the Code of
Civil Procedure?

Whether in view of the provision
of Section 3 of the Code of Civil Procedure
for the purposes of the Civil Procedure
Code only the Courts referred to in Section
3 are the Civil Courts subordinate to the
High Court and the District Court as the
case may be and no other i.e. the authorities
1 All. Smt. Juglesh Kumari & Ors. Vs. Ifco Tokiyo General Insurance Co. Ltd., Agra
125
and that Tribunals such as one constituted
under Motor Vehicles Act do not come
within the framework of expression "Courts
subordinate to High Court" for the purpose
of Section 115 of the Code?

Whether the view expressed by
the Division Bench in Mussamant Afsari
Begum v. Oriental Fire and General
Insurance Company, reported in (1979 ALJ
page 1168) to the effect that Claims
Tribunal constituted under Motor Vehicles
Act is a Court subordinate to High Court
and its orders are amenable to revisional
jurisdiction of the High Court under
Section 115 of the Code is in consonance
with the letter and spirit of provisions of
Section 115 read with Section 3 of the
Code of Civil Procedure as well as
provisions of Motor Vehicles Act and in
particular Section 110-C(2) Motor Vehicles
Act, if not, is the present revision
maintainable in this Court? If not, is it open
to this Court to entertain, hear and dispose
of the same under Article 227 of the
Constitution?

3. These questions were answered by
the Full Bench thus :

Our answer to question No. 1 is
in affirmative, that a revision lies against an
order of the Motor Accidents Claims
Tribunal. Our answer to question No. 2 is
that the Courts mentioned in Section 3 CPC
are not the only Civil Courts, other Courts
and Tribunals can also be Civil Courts
subordinate to the High Court, for the
purposes of Section 115 CPC. Our answer
to question No. 3 is that the judgment
rendered in the case of Mussamat Afsari
Begum v. Oriental Fire &
General
Assurance Company. 1979 ALJ 1168, has
been rightly decided and is approved.
Hence, the question of invoking Article 227
of the Constitution of India does not arise.

4. If the Motor Accident Claims
Tribunal constituted under the 1988 Act is a
Court subordinate to this Court, for the
purpose of Section 115 of the Code, I do
not see any reason why it would not be
subordinate for the purpose of Section
24(1)(b) of the Code. The attention of the
learned Single Judge in Shankar Lal
Jaiswal was not drawn to the holding of
the Full Bench in Kamla Yadav and no
argument seems to have been addressed in
this regard. Howsoever convincing the
opinion of the learned Single Judge on its
own reasoning might be, it is difficult to
come out of the binding precedent in
Kamla Yadav, which holds in answer to
Question No. 2 that the Courts mentioned
in Section 3 of the Code are not only the
Civil Courts, but Tribunals can also be
Civil Courts subordinate to the High Court
for the purpose of Section 115 of the Code.
The Full Bench also approved the holding
of an earlier Division Bench in Smt. Afsari
Begum v. Oriental Fire and General
Insurance Company and others5, where
the Division Bench answered the question
referred by the learned Single Judge to the
effect that the Claims Tribunal constituted
under the Motor Vehicles Act, 1939 is a
Civil Court amenable to the jurisdiction of
this Court under Section 115 of the Code.
In Afsari Begum (supra) it was held :

5.
Section
110-D
confers
appellate jurisdiction on the High Court
against awards made by the Claims
Tribunal provided the amount in dispute in
the appeal is not less than Rs. 2,000/-. It is
thus apparent that the legislature has
conferred appellate jurisdiction on the High
Court against awards made by the Claims
Tribunal. It has not been disputed that the
Claims Tribunal is, in the eye of law, a
Court exercising civil jurisdiction. If the
tribunal is a Civil Court it cannot be
126 INDIAN LAW REPORTS ALLAHABAD SERIES
gainsaid that it was a civil Court
subordinate to the High Court.

6. It has been stated by the
Supreme
Court
that
revisional
jurisdiction possessed by the High Court
is a part of its appellate jurisdiction (See
Shankar Ram Chandra Abhayankar v.
Krishnaji Dattatraya Bapat [(1969) 2
SCC 74 : A.I.R. 1970 S.C. 1.] . In that
case, it was observed:

"Section 115 of the Code of
Civil Procedure circumscribes the limits
of the jurisdiction but the jurisdiction
which is being exercised is a part of the
general appellate jurisdiction of the High
Court as a superior Court. It is only one
of the modes of exercising power
conferred by the Statute, basically and
fundamentally
it
is
the
appellate
jurisdiction of the High Court which is
being invoked and exercised in a wider
and larger sense."

7. It is thus evident that the
Claims Tribunal being a Civil Court was
amenable to the revisional jurisdiction of
the High Court under Section 115 of the
Code of Civil Procedure because it was a
Court subordinate to the High Court.

8. We, therefore, answer the
question referred to us by holding that a
revision under Section 115 of the Code
of Civil Procedure is maintainable
against the order passed by the Claims
Tribunal on the ground that such a
tribunal is a Court subordinate to the
High Court within the meaning of
Section 115 of the Code of Civil
Procedure.

5. Sitting singly, it would not be
appropriate for me to hold contrary to
the learned Single Judge in Shankar Lal
Jaiswal, extending the principle that
Full Bench has laid down regarding
exercise of this Court's jurisdiction
under Section 115 of the Code to the
power of transfer under Section 24(1)(b)
of the Code, in relation to Tribunals
constituted under the Act.

6. The following questions are,
accordingly, referred for consideration
by a larger Bench :

(1).
Whether
a
Tribunal
constituted under the Motor Vehicles
Act, 1988 is a Court subordinate to the
High Court for the purpose of exercise
of power of transfer under Section
24(1)(b) of the Code of Civil Procedure,
1908?

(2). Whether by extension of
the principle laid down by the Full
Bench in Kamla Yadav v. Smt. Sushma
Devi and others, 2004 (22) LCD 40 a
Tribunal constituted under the Motor
Vehicles
Act,
1988
is
a
Court
subordinate to the High Court for the
purpose of Section 24(1)(b) of the Code
of Civil Procedure, 1908?

(3). Whether the decision of the
learned Single Judge in Shankar Lal
Jaiswal v. Asha Devi and others,
(2018) SCC OnLine All 2545 : (2019)
132 ALR 809 correctly lays down the
law
in
holding
that
a
Tribunal
constituted under the Motor Vehicles
Act, 1988 is not a Court subordinate to
the High Court within the meaning of
Section 24 of the Code of Civil
Procedure, 1908?

7. Till decision by the larger Bench,
there shall be interim stay of further
proceedings in the pending petitions
before the Claim Tribunals subject
matter of these applications.

8. The Registry is directed to lay
the papers before His Lordship the
1 All. State of U.P. & Ors. Vs. C/M, Seth Jaipuriya School, Lko
127
Hon'ble The Chief Justice for being
placed before a larger Bench.
----------
(2023) 1 ILRA 127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 5 of 2023

State of U.P. & Ors. ...Appellants
Versus
C/M, Seth Jaipuriya School, Lko
 ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Som Kartik Shukla, Ashok Kumar Singh

A. Procedural Law - Special Appeal -
Delay - Condonation - Principle of
adopting liberal approach - Applicability
- Held, unless there is a specific statutory
provision restricting the powers of the
Court to condone delay, the court should
adopt
a
liberal
approach
while
scrutinizing the sufficiency of the cause
shown for the delay and adoption of a
strict standard of proof in case of the
Government, which is dependent on the
actions of its officials, who often do not
have
any
personal
interest
in
its
transactions,
may
lead
to
grave
miscarriage of justice and therefore,
certain amount of latitude is permissible
to the St. in such cases. (Para 17)

Delay in filing Special Appeal condoned.
(E-1)

List of Cases cited:

1. Indian Oil Corp. Ltd.& ors. Vs Subrata Borah
Chowlek & anr., 2010 14 SCC 419
2. Esha Bhattacharjee Vs Mg. Committee of
Raghunathpur Nafar, 2013 12 SCC 649

3. National Spot Exchange Ltd. Vs Anil Kohli,
2021 SCC OnLine SC 716

4. St. of M.P. Vs Bherulal, 2020 10 SCC 654

5. St. of U.P. Vs Sabha Narain, 2022 9 SCC 266

6. U.O.I. Vs Vishnu Aroma Pouching (P) Ltd.;
2022 9 SCC 263

7. National Spot Exchange Ltd. Vs Anil Kohli,
Resolution Professional For Dunar Foods Ltd.;
2021 SCC OnLine SC 716

8. St. of M.P. Vs Bherulal; (2020) 10 SCC 654

9. St. of U.P. Vs Sabha Narain; (2022) 9 SCC
266

10. U.O.I. Vs Vishnu Aroma Pouching (P) Ltd.;
(2022) 9 SCC 263

11. Antiyur Town Panchayat Vs G. Arumugam;
(2015) 3 SCC 569

12. Indian Oil Corpn. Ltd. VsS ubrata Borah
Chowlek; (2010) 14 SCC 419

13. Esha Bhattacharjee Vs Raghunathpur Nafar
Academy; (2013) 12 SCC 649

(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Subhash Vidyarthi, J.)

C.M. Application No.1 of 2023
(Application for Condonation of Delay)

1. Heard Shri Amitabh Kumar Rai,
learned Additional Chief Standing Counsel
for State-appellant and Shri Prashant
Chandra, learned Senior Advocate assisted
by Shri Anshuman Singh, learned counsel
for the respondent.

2. By means of the instant application,
the appellant- State of U.P. is seeking