Heard Shri Nitin Rastogi, learned counsel for the petitioner on the question of maintainability of the aforesaid petition.
The petitioner has preferred the instant application under Section 24 CPC whereby it is prayed that Regular Suit No.449 of 2017 instituted under Section 13 of the Hindu Marriage Act and pending before the Court of Principal Judge, Family Court, Fatehpur be transferred to Principal Judge, Family Court, Lakhimpur Kheri.
A Co-ordinate Bench of this Court noticing that the suit sought to be transferred is pending at Fetehpur which is outside the territorial jurisdiction of this Court at Lucknow had required the learned counsel for the petitioner to address on the maintainability.
Shri Rastogi while making his submission has stated that the provision of Section 24 can be exercised by the High Court in respect of any court which is subordinate to it. It has further been submitted that since both the courts i.e. the Principal Judge, Family Court at Fatehpur as well as Principal Judge, Family Court at Lakhimpur Kheri both are subordinate to the High Court, hence this Court has ample jurisdiction to exercise its power under Section 24.
Shri Rastogi in support of his submission has relied upon the United Provinces' High Courts (Amalgamation) Order, 1948 and has cited the decision of the Apex Court in the case of Nasiruddin Vs. State Transport Appellate Tribunal reported in AIR 1976 SC page 331.
On the strength of the aforesaid amalgamation order as well as the decision of the Apex Court in the case of Nasiruddin (supra), it is urged that since the cause of action would arise both at Fatehpur as well as at Lakhimpur Kheri, hence the High Court has the power to exercise its jurisdiction and entertain the petition at Lucknow.
The Court has considered the submissions of the learned counsel for the petitioner, however, is unable to accept the same.
From the perusal of the amalgamation order as well as taking notice of the decision of Nasiruddin (supra) all that is evident is a fact that the jurisdiction relating to the area of Oudh have been exclusively vested with the High Court at Lucknow and it has been held that the Chief Justice of the High Court has no power to increase or decrease the area comprising of Oudh from time to time. The area in Oudh which has been determined once, there is no scope to change the same. The amalgamation order especially Clause 14 only conferrers power of discretion with the Chief Justice that any case or class of cases arising in the areas of Oudh be heard at Allahabad or any class of cases which are instituted at Lucknow may be heard at Allahabad. In the aforesaid case of Nasiruddin (supra) it was held that in so far as civil matters are concerned, if the cause of action arises wholly within the areas of Oudh 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.
Apparently, the aforesaid decision of Nasiruddin as well as amalgamation order also does not help the petitioner; inasmuch as admittedly the suit which is sought to be transferred is pending before the Principal Judge, Family Court at Fatehpur. Admittedly the area of Fatehpur does not fall within the territorial jurisdiction of Lucknow Bench of the High Court.
In the aforesaid circumstances, this Court would not have jurisdiction to transfer the suit pending outside the territorial jurisdiction and it would be open for the petitioner to move an appropriate application before the High Court at Allahabad, if the petitioner is so advised.
This Court is fortified in its view in light of the decision of a Division Bench of this Court in the case of Mahendra Pratap Bhatt Vs. Smt. Saroj Mahana reported in 2016 (116) ALR 742 (DB)(LB) as well as decision in the case of Smt. Jyotsan Dixit Vs. Civil Judge, Khiri and others reported in 1999 (1) AWC page 107.
In view of the aforesaid, this Court is of the considered view that the above transfer application cannot be entertained at Lucknow, hence the same is dismissed. However, it shall be open for the petitioner to prefer on application for transfer before the High Court at Allahabad, in case, if the petitioner so chooses within a period of four week from today.
Order Date :- 18.1.2021 ank