# Smt. Shivika Upadhayay v. Pushpendra Trivedi

- **Citation:** (2024) 11 ILRA 163
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-08
- **Case number:** Civil Misc. Transfer Application (U/s 24 C.P.C.) No. 674 of 2024
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shivika-upadhayay-v-pushpendra-trivedi-50992
- **Pages:** 6

## Headnote

A. Civil Law - Civil Procedure Code,1908Section
24-Hindu
Marriage
Act,1955Section 13(1)(a)-The Allahabad high court
addressed
the
issue
of
territorial
jurisdiction between its Principal Seat and
the
Lucknow
Bench
concerning
matrimonial cases transfers under section
13(1)(a) of the Hindu Marriage Act,1955-
the
applicant
sought
to
transfer
a
matrimonial case from Family Court in
Lucknow to the District Court in BareillyThe court reviewed sections 22,23 and 24
of CPC, which address the power to
transfer civil cases -It also analyzed the
Family
Courts
Act,1984,
and
its
implications for territorial jurisdictionHeld,
transfer
applications
for
cases
pending within the territorial jurisdiction
of the Lucknow Bench must be filed before
the Lucknow Bench, as it is the appellate
forum for such cases under sections 22-24
of Civil Procedure Code, and the Family
Court s Act 1984.(Para 1 to 16)

Every court has its own local or territorial
limits beyond which it cannot exercise the
jurisdiction. So far as this court is
concerned,
its
jurisdiction
is
not
circumscribed by any territorial limitation
and it extends over any person or
authority within the territory of India. But
it has no jurisdiction outside the country.
So far as a High Court is concerned its
jurisdiction is limited to territory within
which it exercises jurisdiction and not
beyond it. On that analogy also, a High
court cannot pass an order transferring a
case pending in a court subordinate to it
to a court subordinate to another High
Court. It would be inconsistent with the
limitation as to territorial jurisdiction of
the Court.(Para 14) (E-6)

List of Cases cited:

## Text

11 All. Smt. Shivika Upadhayay Vs. Pushpendra Trivedi
163
(2024) 11 ILRA 163
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2024

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Civil Misc. Transfer Application (U/s 24 C.P.C.)
No. 674 of 2024

Smt. Shivika Upadhayay ...Applicant
Versus
Pushpendra Trivedi ...Opposite Party

Counsel for the Applicant:
Sri Sandeep Kumar

Counsel for the Opposite Party:

A. Civil Law - Civil Procedure Code,1908Section
24-Hindu
Marriage
Act,1955Section 13(1)(a)-The Allahabad high court
addressed
the
issue
of
territorial
jurisdiction between its Principal Seat and
the
Lucknow
Bench
concerning
matrimonial cases transfers under section
13(1)(a) of the Hindu Marriage Act,1955-
the
applicant
sought
to
transfer
a
matrimonial case from Family Court in
Lucknow to the District Court in BareillyThe court reviewed sections 22,23 and 24
of CPC, which address the power to
transfer civil cases -It also analyzed the
Family
Courts
Act,1984,
and
its
implications for territorial jurisdictionHeld,
transfer
applications
for
cases
pending within the territorial jurisdiction
of the Lucknow Bench must be filed before
the Lucknow Bench, as it is the appellate
forum for such cases under sections 22-24
of Civil Procedure Code, and the Family
Court s Act 1984.(Para 1 to 16)

Every court has its own local or territorial
limits beyond which it cannot exercise the
jurisdiction. So far as this court is
concerned,
its
jurisdiction
is
not
circumscribed by any territorial limitation
and it extends over any person or
authority within the territory of India. But
it has no jurisdiction outside the country.
So far as a High Court is concerned its
jurisdiction is limited to territory within
which it exercises jurisdiction and not
beyond it. On that analogy also, a High
court cannot pass an order transferring a
case pending in a court subordinate to it
to a court subordinate to another High
Court. It would be inconsistent with the
limitation as to territorial jurisdiction of
the Court.(Para 14) (E-6)

List of Cases cited:

1. Nasiruddin Vs S.T.A.T. (1975) 2 SCC 671

2. Rajendra Kr. Mishra Vs U.O.I. & ors. (2005) 1
UPLBEC 108

3. St. of Raj. Vs M/s Swaika Properties (1985) 3
SCC 217

4. U.P. Rashtriya Chini Mill Adhikari Parishad Vs
St. of U.P. (1995) 4 SCC 738

5.
Navinchandra
N.
Majithia
Vs
St.
of
Mah.(2000) 7 SCC 640

6. Ambica Industries. Vs Commr. Of Central
Excise (2007) 6 SCC 769

7. Alchemist Ltd. Vs St. Bank of Sikkim(2007) 11
SCC 335

8. Rajendra Chingravelu Vs R.K. Mishra (2010) 1
SCC 457

9. Naval Kishore Sharma Vs U.O.I. (2014) 9 SCC
329

10. Kusum Ingots & Alloys Ltd. Vs U.O.I. (2004)
6 SCC 254

11. Dr. Manju Varma Vs St. of U.P. & ors., SC in
Civil Appeal No. 8290 of 2002

12. Shah Newaz Khan & ors. Vs St. of Nagaland
& ors. (2023) 11 SCC 376

13. Durgesh Sharma Vs Jayshree (2008) 9 SCC 648
164 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Kshitij Shailendra, J.)

ON THE ISSUE OF TERRITORIAL
JURISDICTION OF PRINCIPAL SEAT
OF ALLAHABAD HIGH COURT AND
ITS LUCKNOW BENCH IN MATTERS
OF TRANSFER OF MATRIMONIAL
CASES

1. Heard Shri Sandeep Kumar, learned
counsel for the applicant.

2. Prayer to transfer Case No. 303 of
2024 (Pushpendra Trivedi vs. Smt. Shivika
Upadhyay) under Section 13(1)(a) of Hindu
Marriage Act, 1955 from Principal Judge,
Family Court, Lucknow to District Bareilly
has been made in this application.

3. The Stamp Reporting Section has
submitted
a
report
regarding
nonmaintainability of the transfer application
on the ground that the case is pending
under the territorial jurisdiction of the
Lucknow Bench.

4. Learned counsel for the applicant
submits that since part of cause of action
has arisen within the territorial limits of
jurisdiction of this Court, i.e. the Principal
seat,
the
transfer
application
is
maintainable as it is the choice of the
applicant to choose forum.

5. Many applications seeking transfer
of proceedings pending in family courts
functoning
in
territorial
limits
of
jurisdiction of Lucknow Bench are coming
up for consideration at the Principal seat
and in almost all cases, plea of "arising of
part of cause of action" within territorial
limits of Principal seat at Allahabad is
taken. In this view of the matter, this Court
deems it appropriate to deal with this issue
in some details.

6. This Court may observe that
whatever arguments are advanced either
taking a plea of "part of cause of action" or
"forum convenience", the same are based
upon certain authorities which have dealt
with the issue of territorial jurisdiction in
relation to writ petitions filed under Article
226 of the Constitution of India. This is so
because sub-clause (2) of Article 226 of the
Constitution provides that power conferred
by clause (1) of the said article to issue
directions, orders or writs may also be
exercised by any High Court exercising
jurisdiction in relation to the territories
within which the cause of action, wholly or
in part, arises for the exercise of such
power. The Court may refer to certain
authorities discussed and referred time and
again by this Court in various judgments.
Some of these authorities are as under:

"i.
Nasiruddin
vs.
State
Transport Appellate Tribunal reported
in (1975) 2 SCC 671

ii. Rajendra Kumar Mishra vs.
Union of India & others reported in
[(2005) 1 UPLBEC 108

iii. State of Rajasthan vs. M/s.
Swaika Properties reported in (1985) 3
SCC 217

iv. U.P. Rashtriya Chini Mill
Adhikari Parishad vs. State of U.P.
reported in (1995) 4 SCC 738

v. Navinchandra N. Majithia
vs. State of Maharashtra reported in
(2000) 7 SCC 640

vi.
Ambica
Industries
vs.
Commissioner
of
Central
Excise
reported in (2007) 6 SCC 769

vii. Alchemist Ltd. vs. State
Bank of Sikkim reported (2007) 11 SCC
335

viii. Rajendra Chingravelu vs.
R.K. Mishra reported in (2010) 1 SCC
457
11 All. Smt. Shivika Upadhayay Vs. Pushpendra Trivedi
165

ix. Nawal Kishore Sharma vs.
Union of India reported in (2014) 9 SCC
329

x. Kusum Ingots & Alloys Ltd.
vs. Union of India reported in (2004) 6
SCC 254

xi. Judgment dated 17.11.2004
passed by Supreme Court in Civil
Appeal No.8290 of 2002 (Dr. Manju
Varma Vs. State of U.P. and others)"

7. The aforesaid authorities deal with
territorial limits of jurisdiction of a writ
court under Article 226 of the Constitution
of India and as regards Allahabad High
Court, provisions of U.P. High Courts
(Amalgamation) Order 1948 have been
dealt with along with concept of Forum
Convenience and arising of cause of action,
wholly or in part. However, in order to
examine as to whether in matrimonial
matters, when transfer is sought on the
basis of convenience of the parties or other
like grounds such as place of temporary or
permanent residence of one of the parties or
pendency of certain cases in one or the
other districts, provisions of Code of Civil
Procedure, 1908 read with Family Courts
Act, 1984 must be dealt with, otherwise the
confusion regarding territorial jurisdiction
in such matters would continue to prevail.

8.
Power
to
transfer
suit
or
proceedings of civil cases is contained
under Section 24 of C.P.C., which reads as
under:-

Section 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 1 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 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.]

9. The Court must, simultaneously,
refer to Sections 22 and 23 of the Code
which read as under:-
166 INDIAN LAW REPORTS ALLAHABAD SERIES

"Civil Procedure Code, 1908

Section 22. Power to transfer
suits which may be instituted in more
than one Court.

Where a suit may be instituted in
any one of two or more Courts and is
instituted in one of such Courts, any
defendant, after notice to the other parties,
may, at the earliest possible opportunity
and in all cases where issues are settled at
or before such settlement, apply to have the
suit transferred to another Court, and the
Court to which such application is made,
after considering the objections of the other
parties (if any), shall determine in which of
the several Courts having jurisdiction the
suit shall proceed.

Section 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 Courts
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."

10. Words "Appellate Court" used in
Section 23(1) of CPC are of much
significance. While advancing arguments
based upon Forum Convenience or arising
of cause of action in transfer matters, it is
always urged that since there is a single
High Court in the State of U.P., all the
Family Courts are subordinate to the High
Court and, hence, transfer application can
be filed either before the Principal Seat of
this Court or its Lucknow Bench. However,
sub-section (1) of Section 23 makes it clear
that subordination of courts in the matters
of transfer has to be understood in the light
of "Appellate Court". For example, if an
order is passed by a Family Court situated
in Gonda or Basti or Sitapur or any other
district falling under territorial limits of
jurisdiction of Lucknow Bench, appeal
under Section 19 of the Family Courts Act,
1984 would lie before the Lucknow Bench
and not before the Principal Seat at
Allahabad. In such matters, Lucknow
Bench being the Appellate Court, transfer
application would lie before it and not
before the Principal Seat.

"Civil Procedure Code, 1908

Section 2(4) "district" means the
local limits of the jurisdiction of a principal
Civil
Court
of
original
jurisdiction
(hereinafter called a "District Court"), and
includes the local limits of the ordinary
original civil jurisdiction of a High Court;

Section 3 - Subordination of
Courts- For the purposes of this Code, the
District Court is subordinate to the High
Court, and every Civil Court of a grade
inferior to that of a District Court and every
Court of Small Causes is subordinate to the
High Court and District Court."

11. Now, in order to further clarify the
power to transfer matrimonial cases, certain
provisions of Family Courts Act, 1984 need
reference. The same are reproduced as
under:-

Family Courts Act, 1984

Section 2(d)- "Family Court"
means a Family Court established under
section 3;

2(e)
all
other
words
and
expressions used but not defined in this Act
and defined in the Code of Civil Procedure,
11 All. Smt. Shivika Upadhayay Vs. Pushpendra Trivedi
167
1908 (5 of 1908) shall have the meanings
respectively assigned to them in that Code.

Section 3

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

(2) The State Government shall,
after consultation with the High Court,
specify, by notification, the local limits of
the area to which the jurisdiction of a
Family Court shall extend and may, at any
time, increase, reduce or alter such limits.

Section
7.
Jurisdiction.-(1)
Subject to the other provisions of this Act,
a Family Court shall-

(a). have and exercise all the
jurisdiction exercisable by any district court
or any subordinate civil court under any
law for the time being in force in respect of
suits and proceedings of the nature referred
to in the Explanation; and

(b) be deemed, for the purposes
of exercising such jurisdiction under such
law, to be a district court or, as the case
may be, such subordinate civil court for the
area to which the jurisdiction of the Family
Court extends.

12. On perusal of aforesaid provisions
of the Act of 1984, it is clear that
establishment of a Family Court is as per
notification issued by the State Government
defining the local limits of the area to
which the jurisdiction of a Family Court
shall extend. Further, Family Court shall be
deemed to a District Court and in view of
Section 2(4) of the Code of Civil
Procedure, a District Court would confine
its jurisdiction as per its local limits and not
beyond that. Hence, territories to which any
Family Court exercises its jurisdiction
would
determine
the
Forum
where
application seeking transfer of proceedings
pending in such areas would lie.

13. The Supreme Court, in Shah
Newaz Khan and others vs. State of
Nagaland and others, (2023) 11 SCC 376,
by making reference of its earlier decision
in Durgesh Sharma vs. Jayshree, (2008)
9 SCC 648, observed that the law relating
to transfer of cases (suits, appeals and other
proceedings) is well settled. It is found in
Sections 22 to 25 of the Code and those
provisions
are
exhaustive
in
nature.
Whereas Sections 22, 24 and 25 deal with
power of transfer, Section 23 merely
provides forum and specifies the court in
which an application for transfer may be
made. Section 23 is not a substantive
provision vesting power in a particular
court to order transfer. It has further been
held that where several courts having
jurisdiction are subordinate to one appellate
court, an application for transfer may be
made to such appellate court and the court
may transfer a case from one court
subordinate
to
it
to
another
court
subordinate to it.

14. In Durgesh Sharma (supra), after
dealing with the provisions of Sections 22,
23, 24 and 25 CPC, the Supreme Court
observed as under:

.... "Every court has its own local
or territorial limits beyond which it cannot
exercise the jurisdiction. So far as this
Court is concerned, its jurisdiction is not
circumscribed by any territorial limitation
and it extends over any person or authority
within the territory of India. But, it has no
jurisdiction outside the country. So far as a
High Court is concerned, its jurisdiction is
limited to territory within which it
exercises jurisdiction and not beyond it. On
that analogy also, a High Court cannot pass
an order transferring a case pending in a
court
subordinate
to
it
to
a
court
subordinate to another High Court. It would
be inconsistent with the limitation as to
territorial jurisdiction of the Court".
168 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In view of the above discussion of
sections 2(4), 3, 22, 23, 24 CPC read with
Section 2(d), 2(e) and 7 of the Family
Courts Act, this Court is of the considered
view that since Lucknow Bench would be
the appellate court competent to hear the
appeals against an order passed by Family
Court situated in any of the courts
subordinate to it and functional within
its/their territorial limits of jurisdiction, the
transfer application in relation to a case
pending within those territories shall lie
before the Lucknow Bench being the
appellate court and not before the principal
seat at Allahabad where such an appeal
would be incompetent.

16. In view of the above, the instant
transfer application before this Bench is not
maintainable
and
it
is,
accordingly,
rejected. However, this order will not
preclude the applicant to file transfer
application before Lucknow Bench.
----------
(2024) 11 ILRA 168
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.11.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ-A No. 6383 of 2024

Sachin Srivastava ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Deep Narayan Tripathi

Counsel for the Respondents:
C.S.C., Prashant Kumar Singh

A. Civil Law - Service Law - Selection
and Appointment. Issue: Whether a
selected candidate has a right to the
post? Held: A selected candidate has no
vested right to the post, and the State
or its instrumentality may, for bona fide
reasons, choose not to fill up the
advertised vacancies. In the instant
case, the petitioner was never declared
as a selected candidate; rather, the
candidature of the selected candidate
was cancelled prior to the issuance of
the select list by the respondents.
Thereafter, the respondents issued a
fresh
advertisement.
Since

fresh
advertisement was already been issued,
the
Court
declined
to
direct
the
respondents to make selection from the
earlier advertisement. (Paras 24, 25,
26)

B. Civil Law - Service Law - Challenge
to Advertisement for Post. Petitioner
challenged advertisement no.3 of 2024
in the month of August 2024, whereas
the last date fixed for receipt of
applications
under
the
said
advertisement was 06.04.2024. Issue:
Whether the petitioner could challenge
advertisement no.3 of 2024 after expiry
of the last date for applications? Held:
If the petitioner was aggrieved by the
advertisement,
he
ought
to
have
challenged it before the last date. As
the petitioner chose not to do so and
filed the petition only in August 2024after
the
selection
process
had
proceeded to a substantial stage-the
Court declined to interfere. (Para 27)

Dismissed. (E-5)

List of Cases cited:

1. Shankarsan Dash Vs U.O.i. - (1991) 3 SCC 47

2. Tej Prakash Pathak & ors. Vs Rajasthan High
Court & ors. - 2024 INSC 847

3. Sanjay Tripathi & anr. Vs District Judge,
Hardoi, Service Single No.1893 of 2011 decided
on 27.08.2019

(Delivered by Hon'ble Abdul Moin, J.)