Hon'ble Attau Rahman Masoodi,J.
Heard Sri A.S. Rai, learned counsel for the appellant and Sri M.B. Tiwari, learned counsel for opposite party.
This appeal under Chapter VIII Rule 5 has been preferred questioning the very jurisdiction of the learned Single Judge to entertain the application under Section 24 Code of Civil Procedure (CPC) before this Court on the ground that the entire cause of action and the pendency of the dispute relates to the court of Principal Judge, Family Court, Allahabad.
A copy of the order sheet has been filed before us which is taken on record.
Learned counsel for opposite party has raised a preliminary objection with regard to maintainability of the appeal.
We have heard learned counsel on the said issue and we have also gone through the relevant judgements in this regard.
Chapter VIII Rule 5 of the Allahabad High Court Rules makes a provision for appeal against the orders of learned Single Judges which is an intra-court 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. "
Learned counsel for the appellant faced with the said proposition invited the attention of the Court to a compilation of judgements filed on behalf of the appellant as well as the judgement of the apex court in the case of Midnapore Peoples' Coop. Bank Ltd. v. Chunilal Nanda and others, (2006) 5 SCC 399. He has further relied upon the judgement in the case of I.N.G. Vysya Bank Ltd. v. Shamken Spinners Ltd, 2011 (1) ACJ 678, Om Prakash Dwivedi v. State of U.P. and others, 2013 (3) ACJ 2561 and Prof. Y.C. Simhadri v. Deen Bandhu Pathak, 2001 (2) ACJ 1549. He has then invited the attention of the Court to the consideration of Sections 104 and 105 CPC in the judgement in the case of Subal Paul vs Malina Paul and another, 2003 (5) JT 193 and on the strength thereof, has urged that the judgment in the case of Amit Khanna (supra) by the Division Bench of the High Court which is a later decision, has not noticed the aforesaid ratio, as such, the same does not correctly explain the law.
He submits that a special appeal would be maintainable particularly on the facts of the present case inasmuch as there is a patent lack of the jurisdiction in entertaining an application under Section 24 CPC in a matter that was exclusively within the territorial jurisdiction of the Allahabad High Court at Allahabad. He submits that the learned Single Judge appears to have completely overlooked this aspect of the matter and once there is a patent lack of jurisdiction in entertaining an application under Section 24 CPC at Lucknow, this lack of territorial jurisdiction goes to the root of the matter. Consequently, in view of the judgements cited hereinabove, a special appeal under Chapter VIII Rule 5 would be entertainable and maintainable as the order of the learned Single Judge falls within the trappings of a judgement.
We have also come across the judgement of a learned Single Judge in the case of Smt. Jyotsna Dixit v. Civil Judge, Khiri and others, 1999 (1) AWC 107, where almost an identical situation had arisen where an application under Section 24 CPC had been filed at Allahabad in respect of a cause of action before the Family Court in Kheri. The jurisdiction in that case was before the Lucknow Bench but the application had been filed at Allahabad. The same was rejected after discussing the entire law on the subject.
The issue relating to maintainability of a special appeal was also raised in the case of Ashok Kumar Bajpai v. Dr. (Smt.) Ranjana Bajpai, 2004 (1) AWC 88, but even though the question had been raised, the same was not finally answered in view of the fact that it was only at an interim stage that some orders had been passed. However, the law relating to maintainability of a special appeal was discussed therein, holding that if an order of a learned Single Judge has the trappings of a judgement then in that event the appeal would be maintainable under Chapter VIII Rule 5 CPC.
The issue relating to maintainability of a letters patent appeal under Clause 15 of the Calcutta High Court Rules came up for consideration before the Supreme Court in the case of Subal Paul (supra). An application for succession was decided under the Indian Succession Act, 1925 by the learned Additional District Judge in a matter of probate. Aggrieved, an appeal was preferred under Section 299 of the Succession Act, 1925 before the High Court. A learned Single Judge allowed the appeal and granted the letter of administration. Aggrieved by the judgement of learned Single Judge, the unsuccessful party preferred a letters patent appeal before the Division Bench in the same High Court. An objection was raised as involved herein about the maintainability of the appeal but the Division Bench rejected the objection and entertained the intra-court appeal. This was subjected to a challenge before the apex court in the aforesaid decision and the judgment of the Division Bench was upheld clearly holding that the intra-court appeal was maintainable. While doing so, the Supreme Court considered the issue of bar that was raised on the strength of Section 104 of the CPC read with Section 105 thereof. The apex court ruled that the right of appeal in a contentious proceeding was found to be available in the proceeding of Section 299 of the Succession Act and not in Section 104 of CPC. It was held that the intention of the legislature was never to govern the provisions of the Succession Act with that of CPC.
In the instant case, there is no appeal provided at all against the decision on an application under Section 24 CPC. The ratio of the decision in the case of Amit Khanna (supra) as extracted hereinabove does not take notice of the line of reasoning as given in the aforesaid three-judges decision of the apex court in the case of Subal Paul (supra). We are, therefore, inclined to follow the ratio of the decision in the case of Subal Paul (supra) as against that of Amit Khanna (supra) on the facts of the present case.
There is yet another dimension according to which the ratio of the case of Amit Khanna (supra) on the facts of the present case would not apply. That case was not a case of total lack of territorial jurisdiction. The only issue was the maintainability of a Special Appeal arising out of an order under Section 24 CPC. The jurisdictional issue was not involved therein as in the present case and consequently, the said case stands distinguished both on facts and law.
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.
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 2010 (15) SCC 228, Raja Khan v. Uttar Pradesh Sunni Central Waqf Board and another.
The above propositions therefore as applied on the facts of the present case leave no room for doubt that neither the application under Section 24 was maintainable before this Court nor was the order passed by the learned Single Judge related to a subject matter within the territorial jurisdiction of this Court. This inherent lack therefore has to be co-related to the nature of the order passed.
In our opinion, at the best, the impugned order of the learned Single Judge would be, if at all, in the purported exercise of power under Article 226 of the Constitution of India. That being so, such purported exercise of power under Article 226 of the Constitution of India would be amenable to an intra-Court Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 which is extracted hereunder:-
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 power 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."
Consequently, for all the reasons above, the special appeal would be maintainable.
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.
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.
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.
Learned Counsel for the opposite party Sri Tiwari submits that he does not propose to file any counter affidavit in the matter.
In view of the conclusions drawn hereinabove and in view of the law as explained, we are more than satisfied that the learned Single Judge could not have assumed the jurisdiction to entertain the application under Section 24 CPC and pass orders on 5.4.2016, impugned herein. Since the entertaining of the application suffers from patent lack of territorial jurisdiction, we set aside the order dated 5.4.2016 and also dismiss the application under Section 24 CPC with liberty to the opposite party to move any such application that may be required to be filed at Allahabad.
The appeal is accordingly allowed with no orders as to cost.
Order Date :- 25.4.2016 Fahim/-
Case :- SPECIAL APPEAL No. - 153 of 2016 Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Attau Rahman Masoodi,J.
The special appeal is allowed vide our orders of date, on separate sheets.
Order Date :- 25.4.2016 Fahim/-