1. This Civil Revision under Section 115 of the Code of Civil Procedure, 1908 (for short, "the CPC") is preferred by the applicant-revisionist aggrieved by the order dated 07 January 2014 passed by the District Judge, Muzaffar Nagar in Election Petition No. 387 of 2012, whereby the election petition filed by respondent no. 1 has been transferred from the court of Additional District Judge, Court No. 3 to the court of Additional District Judge, Court No. 4.
2. The brief facts are; the present proceeding arose out of a Election Petition no. 387 of 2012 filed by respondent no. 1 herein challenging the election of the applicant/revisionist under Section 20 of the U.P. Municipalities Act, 1916 (U.P. Act No. II of 1916).
3. The Nagar Palika is governed by the provisions of the U.P. Municipality Act, 1916 (U.P. Act No. II of 1916). The revisionist was elected as a Chairman of Nagar Palika Parishad, Khatauli, Muzaffar Nagar. The respondent no.1-Izhar Ahmad filed an election petition under Section 20 of the U.P. Act No. II of 1916 challenging his election on 30 July 2012. From the record it transpires that the revisionist/applicant filed an application under Order VI Rule 16 and Order VII Rule 11 of the CPC, which was rejected by the election tribunal/ court below. The revisionist preferred Writ Petition No. 20439 of 2013, which was dismissed on 12.04.2013. Dissatisfied with the said order revisionist preferred Special Leave Petition (Civil) No. 17104 of 2013, which came to be dismissed on 10 May 2013. But the Supreme Court observed that the revisionist shall be at liberty to raise all the issues before the trial court, which shall be treated as preliminary issues. In the meantime the respondent no. 1 preferred Writ Petition No. 169 of 2014 for a direction upon the election tribunal to decide the election petition expeditiously. This Court on 22 January 2014 passed an order granting the liberty to respondent no. 1 to make appropriate application to the court concerned, who will consider the same and shall make all endeavours to decide it expeditiously by fixing short and quick dates.
4. On 08.11.2013 the respondent no. 1 moved an application for transfer of the election petition to some other court. The said application was registered as transfer application no. 482 of 2013. The ground taken in the transfer application was that the election petition is pending in the court of the Additional District Judge, Court No. 3. The said court is overburdened with huge number of criminal cases in respect of crimes against women. It was also mentioned that since the term of the office of the Chairman is only five years and there was a direction of this Court for expeditious disposal of the election petition, therefore, it was stated that the election petition may be transferred to some other court.
5. An objection was filed to the said transfer application. After considering the objection of the revisionist the court below has allowed the transfer application and has transferred it from the court of Additional District Judge, Court No. 3.
6. At the outset Learned Counsel for the respondent no. 1 raised a preliminary objection about the maintainability of the present civil revision under Section 115 of CPC against the order passed under Section 43-BB of the U.P. Act No. II of 1916.
7. Learned Counsel for the revisionist submits that where a remedy of an appeal has not been provided against the order passed by the District Judge, the remedy available would be to file a Civil Revision before the High Court under Section 115 of the CPC. He further urged that a notice under Rule 89 of the General Rules (Civil), 1957 (for short, "the Rules, 1957") to the opposite party was mandatory.
8. It was further submitted that the transferee court has not recorded any satisfaction that opposite party had the knowledge of the order. It is contended that the Rules, 1959 are applicable in the election proceedings before the District Judge.
9. Learned Counsel for the revisionist has placed reliance on a judgement of in the case of Sadhana Lodh v. National Insurance Company Ltd. and another, 2003 (50) ALR 750 & Vinod Chandra v. Mahesh Chandra, AIR 1983 Alld 290.
10. Learned Counsel for the respondent submits that the revision is liable to be dismissed on the ground that the impugned order is not revisable. He urged that Section 43-BB of the U.P. Act No. II of 1916 empowers the District Judge to transfer election petition pending before him to Additional District Judge or transfer the same for trial or disposal before any other District Judge, therefore, the revision is not maintainable as the said order is not revisable under Section 115 of the CPC; the impugned order does not cause any prejudice to the right or interest of the revisionist.
11. Learned Counsel for the respondent submitted that the Rules, 1957 are not applicable. The U.P. Act No. II of 1916 has its own procedure for the disposal of the election petition. Alternatively it was urged that Rule 89-A(4) of Rules, 1957 says that the transferee court shall not proceed without satisfying that the parties and their Counsel have been informed. According to him the revisionist had the knowledge of the transfer. He further contended that the transferee court duly informed all the Counsel for represented defendants regarding the transfer of election petition from the court of Additional District Judge, Court No. 3, Muzaffar Nagar to its court. He has invited the attention of the Court to order-sheet which is annexure-4 to the revision (Page-47 of the paper book). He further submitted that after passing of the impugned order transferring the election petition from the Additional District Judge, Court No. 3, to Additional District Judge, Court No. 5, Muzaffar Nagar, the revisionist himself filed his transfer application being transfer application being Transfer Application No. 3 of 2013 filed under Section 340 of Cr.P.C. to court of Additional District Judge, Court No. 4 to which the election petition has been transferred vide order dated 07.01.2014. He also submits that on 25.02.2014 the District Judge, Muzaffar Nagar also transferred the Misc. Case No. 3 of 2013 (Paras Jain v. Izhar Ahmed) to the same transferee court i.e. Additional District Judge, Court No. 4, Muzaffar Nagar.
12. Learned Counsel for the respondent has placed reliance on judgements in the cases of; Smt. Sheil Devi v. Ist Additional District Judge, Varanasi and others, 1991(1) ARC 305; Amit Khanna v. Smt. Suchi Khanna, 2009(1) AWC 929.
13. I have heard learned Counsel for the revisionist and learned Counsel for the respondents.
14. I have considered the rival submissions of respective parties and perused the record.
15. Before adverting to the submissions made by the learned Counsel for the revisionist, it would be appropriate to deal with the preliminary objections raised by the learned Counsel for the respondent no. 1 that the present revision under Section 115 of CPC is not maintainable against the impugned order passed by the learned District Judge, whereby he has transferred the election petition to some other court.
16. It is an established law that a revision under Section 115 of CPC is maintainable against the case decided. The Section 115 reads as under;
"115. Revision----1[(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears----
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit:
2[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] 3[(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.] 4[(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.] 5[Explanation.-In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]"
17. Section 115 of the CPC as amended in the Uttar Padesh6 reads as under;
"115. Revision.- [(1)] A superior court may revise an order passed in a case decided in an original suit or other proceedings by a subordinate court where no appeal lies against the order and where the subordinate court has:
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity;
(2) A revision application under Sub-section (1), when filed in the High Court, shall contain a certificate on the first page of such application, below the title of the case, to the effect that no revision in the case lies to the district court but lies only to the High Court either because of valuation or because the order sought to be revised was passed by the district court.
(3) The superior court shall not, under this section, vary or reverse any order made except where,---
(i) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
(4) A revision shall not operate as a stay of suit or other proceeding before the court except where such suit or other proceeding is stayed by the superior court.
Explanation I.-In this section,-
(i) the expression ''superior court' means----
(a) the district court, where the valuation of a case decided by a court subordinate to it does not exceed five lakh rupees;
(b) the High Court, where the order sought to be revised was passed in a case decided by the district court or where the value of the original suit or other proceedings in a case decided by a court subordinate to the district court exceed five lakh rupees;
(ii) the expression 'order' includes an order deciding an issue in any original suit or other proceedings.
Explanation II.-The provisions of this section shall also be applicable to orders passed, before or after the commencement of this section, in original suits or other proceedings instituted before such commencement."
18. It is discernible from a reading of the aforesaid Section that all the cases are not revisable. The court has a jurisdiction to interfere under Section 115 of the CPC inter alia on the ground that if an order as trapping of the case decided in which no appeal lies. The word "case decided" is no more res integra. The Supreme Court as well as this Court in a long line of decisions have established the category of the cases, which falls under the 'case decided'. In the case of Ashrumati Devi v. Ravindra Deo Rajkot & others, AIR 1953 SC 198 the Apex Court considered the word 'judgement' in context of clause-15 of letters patent, the word 'case decided' and the judgement is interchangeable. Both the words have been considered by the Supreme Court in a large number of cases in the context of expression judgement in clause-15 of the letters patent and cases decided under Section 115 of the CPC. In the said case the Supreme Court held that an order of transfer is not a judgement. The said case has been consistently followed by the Supreme Court and the same has been considered in detail in the case of Shah Babu Lal Khinji v. Jayaben D. Kanja, AIR 1981 SC 1786.
19. The word 'case decided' came to be considered by this Court in its Full Bench decision of Ramrichpal Singh v. Dayanand Sarup minor through Bhagwat Swarup, 1955 ALJ 167.
20. The Full Bench took the view that proceeding terminated by the orders, which are merely procedural or routine orders are not 'cases'. There are some interlocutory orders, which finally dispose of the proceedings but no substantial questions are decided by disposal of such applications. They shall not be treated as case decided because those interlocutory orders did not effect the right of the parties.
21. The similar view has been taken by this Court in the case of Jagdish Kumar v. District Judge, Badaun and others, 1998 (1) ARC 305. This Court considering the large number of judgements of Patna High court, Allahabad High Court, Bombay High Court and Calcutta High Court came to hold that in case a transfer application is allowed or rejected no revision lies under Section 115 of the CPC. The final conclusion of the Court is in the following terms;
"21. Thus an order under Section 24 of the Code either allowing or refusing to transfer or withdraw a suit or proceeding is not a case decided within the meaning of Section 115 of the Code and as such an order under Section 24 of the Code is not subject to revision under Section 115 of the Code."
22. The Court also considered the remedy available to the party against the order of the transfer passed under Section 24 of the CPC or in those cases where the Court refused to transfer the case. The relevant part is extracted herein below;
"22. Since the order is neither appealable nor revisable as is the position as observed earlier, the same can never be sacrosanct or without any remedy. Such remedy are available under different provision of law. If it is an order of District Court refusing to transfer or allowed the transfer, the party can approach for retransfer, if transferred either before the District Judge or before the High Court. If refused, the aggrieved party may approach the High Court for transfer where such discretion may be exercised by the High Court. Similarly in case of transfers, the High Court may be approached for retransfer and in case of refusal, the party is free to approach the Supreme Court under Section 25 of the Code. Against an order passed by the learned District Judge, it is open to the party to invoke the Higher Court's power of superintendence over subordinate Court conferred upon the former under Article 227 of the Constitution. Inasmuch as Article 227 of the Constitution is not frattered by any other law or statute or any qualification."
23. Bearing in the mind the aforesaid proposition of law it can be safely held that against the impugned order passed by the learned District Judge the present revision is not maintainable as the order of the transfer does not affects the right of the parties. In view of the fact that as regards the submission of the learned Counsel for the revisionist that no opportunity was given to the revisionist before transferring the order. The regard being had to the fact that Section 23 of the U.P. Municipalities Act, 1916 (U.P. Act No. II of 1916) deals with the procedures. Section 23 of the Municipalities Act reads as under;
"23. Procedure.---Except so far as may be otherwise provided by this Act or by rule, the procedure provided in Civil Procedure Code (Act V of 1908) in regard to suits, shall, so far as it is not inconsistent with this Act or any rule and so far it can be made applicable, be followed in the hearing of election petitions :
Provided that,----
(a) two or more persons whose election is called in question may be made respondents to the same petition, and their cases may be tried at the same time, and may two or more election petitions may be heard together; but, so far as is consistent with such joint trial or hearing, the petition shall be deemed to be separate petition against each respondent;
(b) the 7[District Judge] shall not be required to record or have recorded the evidence in full, but shall make a memorandum of the evidence sufficient in its option for the purpose of deciding the case;
(c) the 8[District Judge] may, at any stage of the proceedings, require the petitioner to give 9[***] further security for the payment of all costs incurred or likely to be incurred by any respondent;
(d) the 10[District Judge] for the purpose of deciding any issue, shall only be bound to require the production of, or to receive so much evidence, oral or documentary, as it considers necessary;
(e) during the hearing of the case the 11[District Judge] may refer a question of law to the High Court under Order XLVI of the First Schedule of the Code of Civil Procedure, 1908, but there shall be no appeal either on a question of law or fact, and no application in revision against or in respect of the decision of the 12[District Judge];
13[(f) any person considering himself aggrieved by the decision may apply for review to the 14[District Judge] within thirty days from the date of the decision and the 15[District Judge] may thereupon review the decision on any point;] 16[Provided that in computing the period of limitation the provision of sub-section (2) of Section 12 of the Limitation Act, 1963 shall apply.]"
24. The Section 43-BB of the U.P. Act No. II of 1916 enjoins that the District Judge can transfer an election petition to any of the Additional District Judge; which reads as under;
"43-BB. Transfer of petition.----(1) On the application of any part to an election petition presented under sub-section (5) of Section 20 17[***], and after notice to the other parties thereto, and after hearing such of them as desire to be heard, or of its own motion, without such notice, the High Court may at any stage,---
(a) transfer an election petition pending before a District Judge for trial to any other District Judge; or
(b) re-transfer the same for trial to the District Judge from whom it was withdrawn.
(2) The District Judge may at any stage transfer an election petition pending before him under this Act to an Additional District Judge and may withdraw any election petition pending before an Additional District Judge and, ----
(i) transfer or dispose of the same;
(ii) transfer the same for trial or disposal to any other Additional District Judge; or
(iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.
(3) Where any election petition has been transferred or re-transferred under sub-section (1) or sub-section (2), the District Judge or Additional District Judge, who thereafter tries such petition, may, subject to any direction in the order of transfer to the contrary, proceed from the point at which it was transferred or re-transfered :
(Provided that he may, if he thinks fit, recall and re-examine any of the witnesses already examined.]"
25. A perusal of the said Section makes it clear that the High Court has suo motu power and without any notice it can transfer an Election Petition. Similarly the District Judge at any stage can transfer the election petition to Additional District Judge and he can re-transfer the same for trial or disposal to the court from which it was withdrawn.
26. As regards the submission of learned Counsel for the revisionist that the procedure provided under Rule 89-A(4) of the General Rules (Civil), 1957 has not been followed, the intendment of the Rule 89A(4) appears to be that the parties must have knowledge of the transfer. In the present case, as noticed above, the parties had the knowledge of transfer of the Election Petition. Moreover the revisionist had moved an application, in the transferee court, under Section 340 of Cr.P.C. on 25 February 2014 after the case was transferred to the transferee court. This fact also indicates that the revisionist had full knowledge about the transfer of the matter.
27. After careful consideration of the matter I am of the view that the present revision is not maintainable under Section 115 of the CPC. The impugned order otherwise also does not suffer any illegality. Accordingly, the revision is dismissed.
28. No order as to costs.
Order Date :-05.09.2014 DS/-