Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the parties.
This special appeal under Chapter VIII Rule 5 of the High Court Rules, 1952 (hereinafter referred to "as the Rules") is directed against the order of the learned Single Judge, dated 28.10.2014 wherein learned Single Judge in exercise of powers under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to "as the CPC") has been pleased to direct transfer of Original Suit No.956 of 2010 filed by Dr. Ajay Chaturvedi, the appellant before this Court, under Section 13 of the Hindu Marriage Act from the Court of 1st Additional District Judge, Bulandshahar to the competent Court at Moradabad.
A preliminary objection has been raised with regard to the maintainability of the present special appeal. The issue so raised revolves around the interpretation of the provisions of Chapter VIII Rule 5 of the Rules. It would be appropriate to reproduce the Rules which read as follows:
5. Special Appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of Appellate Jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its powers of Superintendence or in the exercise of criminal jurisdiction [or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of Appellate or Revisional Jurisdiction under any such Act] of one Judge]"
From a simple reading of the Rules, it is apparent that all the judgment of the learned Single Judge of this Court are appealable before a division Bench of the Court except for the category of the judgments which stands excluded from the purview of such special appeal. The Rule in fact excludes judgments against which Special Appeal will not be maintainable. Therefore, what is to be seen is as to whether the judgment/order made in exercise of the powers under Section 24 of the CPC stands within there excluded from the provisions of the Chapter VIII Rule 5 of the Rules or not?
A division Bench of this Court in the case of Vajra Yojna Seed Farm Kalyanpur (M/s) and others Vs. Presiding Officer, Labour Court II and another reported in 2003 (1) U.P.L.B.E.C. page 490 has laid down that ordinarily, following categories of the judgments/orders stand excluded from the purview of the special appeal under Chapter VIII Rule 5 of the Rules which reads as under:
"(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court.
(ii) Judgment of one Judge in the exercise of revisional jurisdiction.
(iii) Judgment of one Judge made in the exercise of its power of superintendence.
(iv) Judgment of one Judge made in the exercise of criminal jurisdiction.
(v) Judgment or order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect of any of the matters enumerated in State List or Concurrent List.
(vi) Judgment or order of one Judge made in exercise or jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under Any Central Act."
Another division Bench in the case of Amit Khanna Vs. Smt. Suchi Khanna reported in 2008 (10) ADJ page 426 has held that the order made under Section 24 of the CPC does not qualify as a judgment and, therefore, no appeal under Chapter VIII Rule 5 of the Rules is maintainable.
Learned counsel for the appellant vehemently submitted that the division Bench of this Court has not laid down correct law in the case of Amit Khann (supra) inasmuch as the order of the learned Single Judge made on the application under Section 24 of the CPC will qualify as a judgment and, therefore, the special appeal would be maintainable. For the propositions, he has placed reliance upon the judgment of the Apex Court in the case of Employer In Relation To Management Of Central Mine Planning and Design Institute Ltd. Vs. Union of India reported in AIR 2001 SC page 883.
The contention so raised on behalf of the appellant may not detain the Court for a long inasmuch as the exercise of powers by the High Court under Section 24 of the CPC is an exercise of power of superintendence. Therefore, the judgment/order of the learned Single Judge on an application under Section 24 CPC would being an order made in exercise of power of superintendence stands excluded from the purview of special appeal as provided for under Chapter VIII Rule 5 of the Rules.
"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.
2[(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.
3[(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]"
From a simple reading of the Section 24 CPC, it is clear that transfer of proceedings of suit; appeal etc. can be directed by the High Court/District Court on an application as also suo moto. This power of transfer is not an exercise of original jurisdiction, it is not an exercise of appellate jurisdiction nor it is an exercise of revisional jurisdiction.
The power of transfer of suit and other proceedings is an exercise of power of superintendence. The legal position in that has been explained by the Madras High Court in the case of P. Karuppiah Ambalam Vs. Ayya Nadar reported in 1963 SCC ONLINE Mad. 260; (1965) 78 LW 133 (Mad.) relevant portion of the judgment is reproduced hereinbelow:
"... Section 24 C.P.C., gives power to two superior courts, viz., the High Court or the District Court to withdraw any suit, appeal or other proceedings pending in any court subordinate to it and either try and dispose of the same, or transfer the same for trial or disposal to any Court, subordinate to it and competent to try or dispose of the same. In terms S. 24 confers a very wide power, and it is intended to enable the two superior courts mentioned in it, in their general power of superintendent over subordinate courts, or in the interest of justice to redistribute all civil work of whatever nature pending in subordinate courts for the purpose of disposal. It has also to be used where the interests of justice require, that a particular case should be transferred from one Subordinate Court. The subject matter of the transfer referred in S. 24 C.P.C., as suit, appeal or other proceeding, is of the widest kind, and there is no reason why execution proceedings should be excluded from the scope of other proceeding mentioned in this section. Considering also the general purpose of superintendence, and furthering the interests of justice for which this section is enacted, there is no reason why execution proceedings should be excluded from its scope."
In our opinion, the judgment/order made on the petition under Section 24 of the CPC only a judgment/order of the learned Single Judge in exercise of power of superintendence and nothing beyond it. In view of the interpretation of Chapter VIII Rule 5 of the Rules as above no special appeal against the judgment/order made in exercise of power of superintendence would be maintainable. We hold that the present special appeal as filed by the appellant is not maintainable.
The present special appeal is dismissed.
Order Date :- 26.11.2014 rkg