# Transfer Application (Civil) 57 of 2019 Vivek Raj Singh v. Civil Judge Junior Division, Shahjahanpur & Ors. Opp. Parties

- **Citation:** (2022) 5 ILRA 1217
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-21
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/transfer-application-civil-57-of-2019-vivek-raj-singh-v-civil-judge-junior-48464
- **Pages:** 7

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Sections 16 & 24 - Order 7, Rule 11 -
Transfer Application - to transfer the original
Suit from district Shahjahanpur to Lucknow - on
the ground of threat perception - question of
maintainability raised - cause of action for
framing and filing of a Suit is altogether
different from a cause of action seeking transfer
from one district to anr. - if the case is pending
before a Court which is within specified area of
Oudh only in that respect of such cases where
this Court exercise the power of transfer under
section 24 of CPC - since, case is not
maintainable at Lucknow due to lack of
territorial jurisdiction - liberty granted to move
file the application in Prayagraj. (Para - 19, 22,
24, 25)

Transfer Application Dismissed. (E-11)

List of Cases cited:-

## Text

5 All. Vivek Raj Singh Vs. Civil Judge Junior Division, Shahjahanpur & Ors.
1217
Government for re-consideration, on its
own merits and in accordance with law,
after considering all the relevant factors,
such as nature of crime committed and the
impact of the remission that may be the
concern of the society as well as the
concern of the State Government and also
life imprisonment awarded by the trial
Court in two murder cases i.e. in Sessions
Trial No. 187 of 1991 and Sessions Trial
No. 78 of 2003, expeditiously, preferably,
within a period of three months from
today.

(29) For the period of three months or
till fresh decision on remand, whichever is
earlier, the respondent no.6-Hari Shanker
shall not be taken into custody to serve the
sentence as ordered by the trial Court.

(30) It is clarified that this Court has
not expressed any opinion either way on
the merits of the claim of the respondent
no.6.

(31) For the facts and circumstances of
the case, there is no order as to costs.

(32) The petitioner as well as the
learned Additional Government Advocate
shall produce/sent a certified copy of this
order
to
respondent
no.1-Principal
Secretary (Home), Government of U.P.,
Lucknow, for necessary information and its
compliance forthwith.
----------
(2022)05ILR A1217
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2022

BEFORE

THE HON'BLE JASPREET SINGH, J.

Transfer Application (Civil) 57 of 2019
Vivek Raj Singh ...Applicant
Versus
Civil Judge Junior Division, Shahjahanpur
& Ors. ...Opp. Parties

Counsel for the Applicant:
Subhash Vidyarthi, Sarvesh Kumar Dubey

Counsel for the Opp. Parties:
Gyan Singh Chauhan

Civil Law - Civil Procedure Code, 1908 -
Sections 16 & 24 - Order 7, Rule 11 -
Transfer Application - to transfer the original
Suit from district Shahjahanpur to Lucknow - on
the ground of threat perception - question of
maintainability raised - cause of action for
framing and filing of a Suit is altogether
different from a cause of action seeking transfer
from one district to anr. - if the case is pending
before a Court which is within specified area of
Oudh only in that respect of such cases where
this Court exercise the power of transfer under
section 24 of CPC - since, case is not
maintainable at Lucknow due to lack of
territorial jurisdiction - liberty granted to move
file the application in Prayagraj. (Para - 19, 22,
24, 25)

Transfer Application Dismissed. (E-11)

List of Cases cited:-

1. Shri Nasiruddin Vs St. Transport Appellate
Tribunal (1975 (2) SCC 671,

2. Smt. Jyotsna Dixit Vs Civil Judge Khiri & ors.
(1999 (1) AWC 107),

3. Mahendra Pratap Bhatt Vs Smt. Saroj Mahana
(2016 (116) ALR 742).

4. Raja Khan Vs Uttar Pradesh Sunni Central
waqf Board & anr. ( 2010 (15) SCC 228).

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant petition for transfer has
been moved under Section 24 C.P.C. with
the prayer that the Original Suit bearing
No. 140 of 2013 pending in the Court of
1218 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Judge, Junior Division, Tilhar,
District Shahjahanpur be transferred from
the said District to the appropriate Court in
District Lucknow.

2. The learned counsel for the parties
have argued the matter at length dwelling
into the merits of the transfer application.

3. In brief the contention of the
learned counsel for the petitioner is that the
private respondents have instituted a suit
for cancellation of a will before the Civil
Judge Junior Division, Tilhar, District
Sahjahanpur wherein the present petitioner
is the defendant. It is also urged that while
contesting the proceedings at Tilhar, an
unfortunate incident occurred which has the
effect of obstructing the course of justice,
as an attempt was made by unknown
persons but presumably at the behest of the
respondent threatening the petitioner to
stop pursuing the case.

4. It has also been pointed out that a
supplementary affidavit has been filed by
the counsel who had gone to argue the case
and had received the threat.

5. It is also urged that after the
incident occurred, the application moved
by the petitioner under Order 7 Rule 11
C.P.C.
was
dismissed,
however,
the
petitioner assailed the matter before the
District Judge at Shahjahanpur which was
allowed and the matter was sent back to the
Civil Judge, Junior Division, Tilhar. It is
also urged that the petitioner have difficulty
in contesting the proceedings at Tilhar.

6. Though, the learned counsel for the
respondents has refuted the aforesaid
contentions and has stated that the
allegations are false and have been
deliberately incorporated to seek a transfer
but
apart
from
controverting
the
contentions on merit, Sri G.S. Chauhan,
learned counsel for the respondent has
raised
an
objection
regarding
the
maintainability of this transfer petition at
Lucknow.

7. It is urged that the proceedings of
which transfer is sought is pending before
the
Civil
Judge,
Tilhar,
District
Shahjahanpur
which
is
outside
the
territorial
jurisdiction
of
this
Court,
inasmuch as, it is beyond the limits of
Oudh, hence, the petition for transfer will
not be maintainable before this Court at
Luckow.

8. A specific query was put to the
learned counsel for the petitioner to
indicate as to how the instant petition is
maintainable at Lucknow and in response
Sri Shantanu Sharma, learned counsel for
the petitioner has submitted that the suit is
in respect of cancellation of a Will which is
executed and registered at Lucknow. It is
also submitted that the parties are residents
of Lucknow and thus part of cause of
action arises at Lucknow.

9. He further relied upon the decision
of the Apex Court in the case of Sri
Nasiruddin Vs. State Transport Appellate
Tribunual reported in (1975) 2 SCC 671
and placed reliance on paragraph 38 to
submit that in civil cases where even part
of cause of action arises within the
territorial jurisdiction of Oudh then this
Court would have jurisdiction and in this
case since the the Will in question was
executed and registered at Lucknow, of
which the cancellation has been sought,
therefore, part of cause of action arises at
Lucknow, hence, this Court has ample
jurisdiction to try the instant transfer
petition which emanates from the said suit.
5 All. Vivek Raj Singh Vs. Civil Judge Junior Division, Shahjahanpur & Ors.
1219

10. It is further submitted by Sri
Sharma, learned counsel for the petitioner
that the testator was also a resident of
Lucknow and upon her death, the will also
became effective at Lucknow as it was also
registered with the Sub Registrar at
Lucknow, hence, in a suit for cancellation
of a Will as in this case, the whole cause of
action has accrued at Lucknow.

11. The Court has heard Sri Shantanu
Sharma, learned counsel for the petitioner
and Sri G.S. Chauhan, learned counsel for
the respondent and has also perused the
material on record.

12.

Since
the
question
of
maintainability has been raised, therefore,
the Court will first advert to the issue of
maintainability on the ground of territorial
jurisdiction and if found maintainable then
shall proceed to consider the averments of
the respective parties on merit.

13. At this stage, it will be relevant to
notice the contents of paragraph 38 of the
decision of Naseeruddin (supra) which
reads as under:-

"38. To sum up. Our conclusions are
as follows. First, there is no permanent seat
of the High Court at Allahabad. The seats
at Allahabad and at Lucknow may be
changed in accordance with the provisions
of the Order Second, the Chief Justice of
the High Court has no power to increase or
decrease the areas in Oudh from time to
time. The areas in Oudh have been
determined once by the Chief Justice and,
therefore, there is no scope for changing
the areas. Third, the Chief Justice has
power under the second proviso to para 14
of the Order to direct in his discretion that
any case or class Allahabad. Any case
class of cases are those which are instituted
at Lucknow. The interpretation given by the
High Court that the word "heard" confers
powers on the Chief Justice to order that
any case or class of cases arising in Oudh
areas shall be instituted or filed at
Allahabad, instead of Lucknow is wrong.
The word "heard" means that cases which
have already been instituted or filed at
Lucknow may in the para 14 of the
discretion of the Chief Justice under the
second proviso to Order be directed to be
heard at Allahabad. Fourth, the expression
cause of action with regard to a civil
matters means that it should be left to the
litigant to institute cases at Lucknow Bench
or at Allahabad Bench according to the
cause of action arising wholly or in part
within either of the areas. If the cause of
action arises wholly within Oudh areas
then the Lucknow Bench will
have
jurisdiction. Similarly, if the cause of
action arises wholly outside the specified
areas in Oudh then Allahabad will have
jurisdiction. If the cause of action in part
arises in the specified Oudh areas and part
of the cause of action arises outside the
specified areas, it will be open to the
litigant to frame the case appropriately to
attract the jurisdiction either at Lucknow
or at Allahabad. Fifth, a criminal case
arises when the offence has been committed
or otherwise as provided in the Criminal
Procedure Code. That will attract the
jurisdiction of the Court at Allahabad or
Lucknow. In some cases depending on the
facts
and
the
provision
regarding
jurisdiction, it may arise in either place."

14. From the perusal of the aforesaid,
it will be noticed that the Apex Court
clearly held that in civil cases where the
cause of action arise outside the specified
areas in Oudh then Allahabad will have the
jurisdiction. While if the cause of action in
part arises in the specified Oudh areas and
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
part of cause of action outside the specified
areas, it will be open for the litigant to
frame the case appropriately to attract the
jurisdiction either at Allahabad or at
Lucknow.

15. It will be relevant to notice that
the instant case has been preferred for
transfer
of
proceedings
which
are
admittedly pending before the Civil Judge,
Junior
Division,
Tilhar,
District
Shahjahanpur. It is not in dispute that
Tilhar, in district Shahjahanpur, is outside
the specified areas of Oudh. Ordinarily,
the
matters
relating
to
District
Shahjahanpur
are
not
within
the
jurisdiction of this Court unless ofcourse a
part of cause of action arises within the
jurisdiction of this Court within the
specified areas of Oudh.

16. It is in this context if the
pleadings delivered by the petitioners are
noticed, it would reveal that though the
will
may
have
been
executed
and
registered at Lucknow but it relates to a
property situate within the territorial
jurisdiction of District Shahjahanpur. It is
for the said reason that the suit was
instituted in terms of provisions of Section
16 of C.P.C. in District Shahjahanpur.

17. However, what is material for the
present controversy is not the will in
question rather it is the threat perception
which has been perceived by the petitioner
which has given the cause of action to
initiate the proceedings under Section 24
C.P.C.

18. A suit relating to an immovable
property is to be filed within the territorial
jurisdiction where the such property
situate in terms of Section 16 C.P.C.
which reads as under:

"16. Suits to be instituted where
subject matter situate:- Subject to the
pecuniary or other limitations prescribed
by any law, suits

(a) for the recovery of immovable
property with or without rent or profits,

(b) for the partition of immovable
property,

(c) for foreclosure, sale or redemption
in the case of a mortgage of or charge upon
immovable property,

(d) or the determination of any other
right to or interest in immovable property,

(e) for compensation for wrong to
immovable property,

(f) for the recovery of movable
property
actually
under
distraint
or
attachment,

shall be instituted in the Court within
the local limits of whose jurisdiction the
property is situate:

Provided that a suit to obtain relief
respecting, or compensation for wrong to,
immovable property held by or on behalf of
the defendant may, where the relief sought
can be entirely obtained through his
personal obedience, be instituted either in
the Court within the local limits of whose
jurisdiction the property is situate, or in the
Court within the local limits of whose
jurisdiction the defendant actually and
voluntarily resides, or carries on business,
or personally works for gain.

Explanation.--
In
this
section
"property" means property situate in
1[India]"

19. The cause of action for framing
and filing of a suit is altogether different
from a cause of action seeking transfer
from one district to another.

20. In Smt. Jyotsna Dixit v. Civil
Judge, Khiri and others, reported in 1999
(1) A.W.C. 107, this Court had the occasion
5 All. Vivek Raj Singh Vs. Civil Judge Junior Division, Shahjahanpur & Ors.
1221
to consider the issue regarding the exercise
of territorial jurisdiction in respect of a
transfer petition under Section 24 CPC and
in the said case a transfer of a suit pending
before the Court of Civil Judge, Khiri was
sought to be transferred to appropriate
Court in District Varanasi and the transfer
petition was filed at Allahabad. After
considering the decision of Naseeruddin
(supra), the Court in Paragraph-11 held as
under:-

11. Now in the present case, the cause
of action for the application under Section
24 of the Code, arose on the initiation of
proceedings
at
Lakhimpur
Khiri.
Solemnisation of marriage at Varan as 1
may be a cause of action for the
matrimonial proceeding and the petitioner
may be said to be entitled to initiate
proceeding, if she so wishes at Varanasi,
but such cause of action is distinct and
separate from the cause of action for
initiation of proceedings under Section 24
of the Code. Such cause of action for
transfer of the case arises at initiation of
the proceedings at the Court where the
plaintiff had instituted the suit. There
cannot be any part of the cause of action
for transfer of the suit at any place outside
Lakhimpur Khiri where the suit has been
instituted. Then again. It is a suit pending
before the Court within the specified area
of Oudh, in respect whereof the Court at
Allahabad is precluded from exercising
jurisdiction
by
reason
of
the
compartmentallsation which is peculiar to
Uttar Pradesh. It is the Court at Oudh,
namely.
Lucknow
Bench
which
has
jurisdiction in respect of Lakhimpur Khiri
by reason of the determination by the Chief
Justice under paragraph 14 of the 1948
Order. The suit instituted at Lakhimpur
Khiri
is
sought
to
be
transferred.
Lakhimpur Khiri is situated within the
Oudh area. It is only the Court at Lucknow
can exercise jurisdiction in respect of the
said suit. The contention that the Lucknow
Bench cannot order transfer to a place
outside its prescribed area, is wholly
impermissible inasmuch as it can direct
transfer of a case pending within its area
even to a Court outside its area. It is the
question of transferring a suit pending at
Lakhimpur Khiri which can be exercised by
Lucknow Bench. Allahabad Bench could
not exercise jurisdiction in respect of the
suit pending at Lakhimpur Khiri even for
the purpose of transferring the same to a
Court within its Jurisdiction, namely, at
Varanasi."

20. In Mahendra Pratap Bhatt v.
Smt. Saroj Mahana, reported in 2016
(116) ALR 742, the issue before the
Division Bench arose from an order passed
by the learned Single Judge exercising
powers under Section 24 CPC whereby it
had referred the matter for mediation at
Lucknow in respect of proceedings which
were
pending
before
the
Court
at
Allahabad. The Division Bench found that
since the matter was pending at Allahabad,
the Court did not have the jurisdiction to
pass an order referring the matter to the
Mediation Centre at Lucknow simply on
the ground that an FIR was lodged at
Lucknow as this FIR lodged at Lucknow
would not make any difference as the
whole cause of action for a matrimonial
proceedings were within the territorial
jurisdiction at Allahabad. The relevant
portion of the aforesaid judgment in
Mahendra Pratap Bhatt (supra) specially
paras 6, 14, 15, 19, 20 and 21 reads as
under:-

"6. Chapter VIII Rule 5 of the
Allahabad High Court Rules makes a
provision for appeal against the orders of
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
learned Single Judges which is an intracourt appeal subject to the limits provided
therein. The dispute in the present appeal
arises out of an application filed under
Section 24 CPC before the learned Single
Judge of this Court in a cause of action
relating to the Family Court at Allahabad.
A Division Bench of this Court in the case
of Amit Khanna v. Smt. Suchi Khanna,
2009 (1) AWC 929, considered the same
issue and came to the conclusion in
paragraph 21 as follows:

"21. According to above provision no
appeal is maintainable from any order of
the Court passed in exercise of its original
or appellate jurisdiction, except against
orders which have been made appealable
under Section 104 C.P.C. Undisputedly, an
order passed on an application under
Section 24 C.P.C. has not been made
appealable under any provision of the
C.P.C. including Section 104 C.P.C. Right
to appeal is not inherent unless it is
specifically provided by the statute. Since
the Code of Civil Procedure does not
specifically provide for an appeal against
an order passed on a transfer application
and at the same time by implication
excludes an appeal against such an order
by virtue of Section 105 C.P.C., therefore,
merely for the reason Rule 5 Chapter VIII
of the Rules of the Court, 1952 is silent in
this regard it would not confer jurisdiction
of appeal. If any contrary interpretation is
made and the appeal is held to be
maintainable it would amount to conferring
jurisdiction of appeal which otherwise is
not specifically provided but is expressly as
well as by implication excluded by Section
105 C.P.C. Thus, in the above scenario the
right of special appeal as contemplated by
Rule 5 Chapter VIII of the Rules of the
Court, even though the same is independent
to the provisions of C.P.C., against the
order of the single judge passed on a
transfer application under Section 24
C.P.C. stands impliedly excluded. "
 -------*******----------
*****--------------**********

"14. A case that has also come at hand
is the decision in Special Appeal No.973 of
2010, U. P. Sunni Central Waqf Board &
Anr. Vs. Raja Khan & Ors. decided on
5.8.2010. In that case, the issue was an
order passed by a learned Single Judge
issuing notices and passing an interim
order in a writ petition arising out of a
Civil Suit that was filed before the learned
Civil Judge, Hamirpur in a matter relating
to district Bahraich. There was a previous
history of the litigation also which has been
discussed in the said judgment but for the
present purpose, suffice it to say that
Bahraich
falls
within
the
territorial
jurisdiction of the High Court at Lucknow
and not at Allahabad. Yet, the Suit was
filed in Hamirpur which falls within the
territorial jurisdiction of Allahabad, and
since the Munsarim had made a report that
the Suit was not cognizable at Hamirpur, a
writ petition was filed against the said
report before the High Court at Allahabad
in which orders were passed by a learned
Single Judge. This was subjected to a
Special Appeal in the above mentioned
case and the Court allowed the Appeal
imposing costs and set aside the judgment
of the learned Single Judge in the aforesaid
circumstances.

15. The aggrieved party assailed the
aforesaid judgment of the Division Bench,
to which one of us [Justice A.P. Sahi] was
a member, before the Apex Court and the
same was upheld with remarks which
judgment is reported in 2011 (2) SCC 741,
Raja Khan v. Uttar Pradesh Sunni Central
Waqf Board and another. The said
judgment was subjected to review for
expunging of such remarks which was
disposed of and the same is reported in
5 All. Smt. Habiba Vs. The State of U.P. & Ors.
1223
2010 (15) SCC 228, Raja Khan v. Uttar
Pradesh Sunni Central Waqf Board and
another.

19. In the instant case, the learned
Single Judge has assumed jurisdiction to
send the matter for mediation at Lucknow
on a stated submission which according to
the
learned
Single
Judge
was
a
concession."

---------*******------******-------
*******-----*****

"20. We are of the considered
opinion that a jurisdiction cannot be
assumed on the concession of the counsel
for the parties or even otherwise, in a
matter that squarely relates to the dispute
at Allahabad.

21. Merely because the opposite
party had lodged an F.I.R. at Lucknow
and instituted a criminal case, the same
would not make the application under
Section 24 CPC maintainable in relation
to the dispute pending before the Family
Court at Allahabad. This assumption,
therefore, by the learned Single Judge in
our considered view is not the correct
view for assuming jurisdiction that is
totally lacking."

22. Applying the principles to the
instant case, it is found that the averments
made in the petition relates to the threat
received by the counsel for the petitioner
while he was arguing the case before the
Court in Tilhar district Shahjahanpur. The
difficulty is being faced at Tilhar. Thus,
the cause of action for the instant petition
for transfer wholely accrues at District
Shahjahanpur
which
is
beyond
the
specified area of Oudh.

23. In matters relating to transfer of a
case from one district to another, it is to be
noticed that if the case is pending before a
Court which is within the specified area of
Oudh only in respect of such cases does
this Court exercises the powers of transfer
under Section 24 C.P.C.

24. In the instant case, the petition for
transfer relates to a suit pending in District
Shahjahanpur which as noticed above, is
beyond the specified area of Oudh,
accordingly, this Court has no hesitation to
hold
that
the
instant
case
is
not
maintainable here at Lucknow. Since the
Court has come to the conclusion that it
does not have the territorial jurisdiction to
entertain the matter, hence, for the said
reason the Court does not deem appropriate
to examine the averments of the respective
parties on merits.

25. The petition is dismissed solely on
the ground that it is not maintainable at
Lucknow, however, liberty is granted to the
petitioner to move the appropriate Court in
Prayagraj.
----------
(2022)05ILR A1223
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Application U/S 378 No. 54 of 2017

Smt. Habiba ...Applicant
Versus
The State of U.P. & Ors. ...Respondent

Counsel for the Petitioners:
Zafar Abbas

Counsel for the Respondents:
G.A.

Criminal
Law
-
Criminal
Procedure
Code,1973 - Sections 156(3), 200, 202,
246, 378 & 378 (4) - Indian Penal