This transfer application has been moved by applicant Smt. Sunita Devi with the prayer that Original Suit No.1074 of 2004 (Ram Kripal versus Smt. Sunita Devi) may be transferred from the court of Civil Judge (Senior Division), Meerut to any other court in the same judgeship.
2. The factual matrix of the case, in nutshell, is this that the applicant is the defendant of the aforesaid suit no.1074 of 2004; that the suit was filed by the plaintiff/opposite party no.1 Ram Kripal for specific performance of contract; that when the suit came at the stage of arguments the defendant/applicant on 20.5.2014 filed transfer application before the District Judge mainly on the ground that the Presiding Officer concerned is in collusion with the plaintiff and she will not get justice from his court and that the said transfer application was rejected by the District Judge vide his order dated 10.7.2014 on the ground that the allegations levelled against the Presiding Officer concerned are false, baseless and concocted.
3. The defendant/applicant has moved this transfer application before the High Court on the self same ground. The Stamp Reporter marked his report on the transfer application as hereunder:-
Hon'ble Court SR has to submit that this Transfer Application is not maintainable.
4. On 11.8.2014 Sri Vivek Kumar Singh and Sri Mayank Yadav, counsel for the applicant were present. Sri Rajendra Prasad Tiwari, Advocate had filed his Vakalatnama on behalf of private opposite party no.1 but on that date when the case was called out he did not respond even in revised list. So, heard learned counsel for the applicant on the point of maintainable of this transfer application and perused the record.
5. Learned counsel for the applicant has submitted that after rejection of the transfer application by the District Judge the second transfer application on the same ground is maintainable in the High Court under Section 24 of Code of Civil Procedure (in short 'C.P.C.') on the basis of the analogy of Section 438 and 439 of Code of Criminal Procedure (in short 'Cr.P.C.') because in those provisions the High Court and the Sessions Court have concurrent jurisdiction and if bail application is rejected by the Sessions Judge under Section 438 and 439 Cr.P.C., in that case another bail application on the same ground is maintainable in the High Court. In support of his contention, learned counsel for the applicant has cited the ruling of Full Bench decision of Calcutta High Court given in the case of Diptendu Nayek vs. State of West Bengal, 1988 Law Suit (Cal) 256.
6. I do not agree with the contention of the learned counsel for the applicant because the said Full Bench decision relates to criminal law and in that case question of enlargement of right of accused as regards the anticipatory bail was involved. The granting or refusal of bail, whether pre-arrest or post-arrest, is inevitably linked up with the right of Personal Liberty and it is firmly established in criminal jurisprudence that if two views are possible in respect of a provision of law, one enlarging and the other circumscribing the right to protection of Personal Liberty, the view enlarging the right is to be preferred. So, the interpretation or construction adopted in aforesaid Full Bench decision cannot be adopted in interpreting the provisions of Section 24 of the C.P.C. because under Section 24 of the C.P.C. no right or liability of any party in regard to the lis, is decided. Whether the suit is tried by one court or the other is an administrative function for the sake of convenience with regard to a particular court. Whether the same is tried by one court or the other, is wholly immaterial to the parties as regards the adjudication of the controversy between them to be adjudicated in the suit itself. The transfer of the suit from one court to other has no concern with the subject-matter of the controversy between the parties.
7. For ready reference, Section 24 of the C.P.C. is reproduced as hereunder:-
"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:
(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which (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.
(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. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."
8. The expression "the High Court or the District Court" clearly indicates that the power of the District Judge and that of the High Court under Section 24 of the C.P.C. Is mutually exclusive. The word "or" in the expression "the High Court or the District Court" in sub-section (1) is used disjunctively and not conjunctively which means that a person can move either the High Court or the District Court and not both the Courts in succession one after the other. Thus, from the aforesaid expression it is crystal clear that the application under Section 24 of the C.P.C. can either be moved before the District Judge or the High Court and cannot be moved simultaneously or one after the other. Thus, the remedy can be availed either by approaching the District Judge or directly to the High Court. Since the jurisdiction of the District Judge and the High Court is concurrent under Section 24 of the C.P.C., so if one party has approached the District Court, that party would be precluded from approaching the High Court under Section 24 of the C.P.C. The High Court under Section 24 of the C.P.C. cannot sit over the order of the District Judge as a revisional court or as an appellate court.
9. It is also notable that the jurisdiction of any court is the creation of some statute. In the criminal side, under Section 407 of the Cr.P.C. the High Court has power to entertain another transfer application on the same ground because of the proviso to that Section 407 of the Cr.P.C. itself. The relevant portion of Section 407 of the Cr.P.C. in which the power of the High Court to transfer the cases and appeals has been given, is quoted hereunder:-
"407. Power of High Court to transfer cases and appeals.-(1) x x x x x x x x x x x x x x x x (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court from transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him."
x x x x x x x x x x x x x x x x
10. From the above provision of the Cr.P.C. it is clear that if any transfer application is rejected by the Sessions Judge the applicant can come to the High Court for getting the case transferred from one court to the other in the same judgeship on the same ground but there is no such provision in the C.P.C. So, in the absence of such provision no party can approach the High Court after rejection of his application by the District Judge. In this reference, the ruling of the Hon'ble High Court rendered in Dadi Jagannadham vs. Jammulu Ramula and others, (2001) 7 SCC 71 may be referred to. In this ruling, it has been held that the court could not add words to a statute or read words into it which are not there, especially when the literal reading produces an intelligible result.
11. So, in the absence of any specific provision in the C.P.C. a person cannot approach the High Court under Section 24 of the C.P.C. or any other provision of the C.P.C. to get his case transferred from one court to another in the same judgeship after rejection of his transfer application by the District Judge on the same ground. But he is not remediless. He may approach the High Court for this purpose by means of filing the writ petition under Article 226 and 227 of the Constitution of India,1950 and may invoke the High Court's power of superintendence.
12. Learned counsel for the applicant has submitted that the order of the District Judge has not been challenged by the applicant in the present transfer application, so this transfer application is maintainable before the High Court under Section 24 of the C.P.C.. This contention of the learned counsel for the applicant also does not hold good because it makes no difference as to whether the order of the District Judge has been challenged or not in the transfer application before the High Court. If the same has not been challenged and the High Court passes an order otherwise, in that case the order of the District Judge would be practically overruled by implication. So, whether the order of the District Judge has been challenged or not, it makes no difference and in no case the application is maintainable under Section 24 of the C.P.C.
13. Learned counsel for the applicant has also submitted that if the application is not maintainable before this Court, he may be permitted to convert the transfer application into writ petition. This submission of the learned counsel is also devoid of any force because this Bench of mine has been entrusted to deal with the transfer applications under Section 24 of the C.P.C. and under Section 407 of the Cr.P.C. There is another Court for dealing with the writ petition. So it is not proper to assume the jurisdiction of another court by converting this transfer application into writ petition.
14. In the result, this transfer application is rejected as not maintainable. However, the applicant is at liberty to avail the required remedy by filing writ petition under Article 226 and 227 of the Constitution of India, 1950 in the appropriate court.
15. The certified copy of the order of the District Judge be returned to the counsel for the applicant as per rule.
16. No order as to costs.
Order Date :- 22.8.2014 SP