Liaqat Ali Dar vs Munir Ahmed

Mr. N. Paul Vasanthakumar, C.J. - This civil revision petition is filed against the order passed in transfer application No. 13/Misc by the

Additional District Judge Ramban dated 15.12.2003, transferring the suit filed by the plaintiff for permanent injunction before the Court of Munsiff

Banihal on the alleged ground that the non applicants No. 1 to 4 in the transfer application are influential persons and no lawyer in Banihal is willing

to appear on behalf of the applicant due to which he is unable to defend the suit in the Court of Munsiff, Banihal. The said transfer application was

allowed and the suit was transferred from Munsiff Court Banihal to the Court of Munsiff at Ramban.

The contention of the revision petitioners is that as per Section 24 of the Code of Civil Procedure, Svt. 1977 (1920 A.D.), the transfer of a case

from one Court to another could be ordered by the District Judge alone and the order of the Additional District Judge Ramban transferring the

case that too without hearing the revision petitioners is against law. It is also the contention of the petitioners that the plea that Advocates are not

coming forward to appear on behalf of the respondent is imaginary and without any basis as it has not been mentioned as to whether the transfer

applicant had approached any Advocate at Banihal who refused to defend him.

Heard Mr. O.P. Thakur learned counsel for the petitioners as well as Mr. P.N.Goja learned counsel for the respondent.

The point arises in this revision petition is as to whether the Additional District Judge Ramban is competent to entertain the transfer application

and pass the order of transfer.

Section 24 of the CPC, Svt. 1977 (1920 A.D.) deals with transfer of cases. It reads as follows:

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 desire 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) re transfer 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 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 proceeding from the point at which it

was transferred or withdrawn.

(3) For the purposes of this section-

(a) Court 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.

On perusal of the above Section, the High Court or the District Court alone is empowered to transfer a case from one court to another in their

respective jurisdiction that too after filing an application by a party to the suit, after notice to the opposite parties and after extending hearing to the

parties and sometimes on its own motion. Sub section 3 of Section 24 CPC itself specifically mentions that the Court of Additional and Assistant

judges shall be deemed to be subordinate to the District Court. The Additional District Judge Court is created to dispose of cases pending in

District Court having regard to more number of pendency. The Additional District Judge is expected to hear cases which are assigned by the

Principal District Judge. The Additional District Judge is under the administrative control of the Principal District Judge. Thus the word used in

Section 24 CPC ""District Court"" does not include Additional District Judge. The Lahore High Court in the decision reported in AIR 1939 Lahore

578 considered the issue and held thus:-

Under Section 24, Civil P.C., a District court may at any stage withdraw any suit, appeal or other proceedings pending in a Court subordinate to

it and try or dispose of the same itself or transfer it for disposal to another competent subordinate Court. In this particular case if the District Judge

decided to act under Section 24, he could only transfer the case to his own file as there is no other court in the district competent to hear appeals.

For these reasons I consider that the learned District Judge was empowered to transfer the appeal from the Court of the Senior Subordinate Judge

to his own Court if sufficient grounds for transfer were made out before him. I should not be understood to say that there are good grounds for

transfer in this case; this would be a matter for the District Judge to decide. I therefore accept this petition and remit the case back to the learned

District Judge, Gujranwala, to deal with it on the merit.""....

The judgment of this Court reported in 2010 (3) JKJ 133 [HC] (Janak Raj Gupta v. J.D A. & Anr.) is distinguishable. The issue arose in

the said case was as to whether the Additional District Judge was competent to hear appeal under Section 12 of the (Public Premises Eviction of

Unauthorised Occupants) Act, 1988, if he was assigned to hear the appeal by the District Judge. Section 16 of the J&K Civil Courts Act

empowers the Government to appoint a District Judge in civil district and Section 16 contemplates appointment of one or more District Judges

whenever business pending before any District Judge requires aid by Additional District Judge and as per Section 16(2), Additional District Judge

so appointed can discharge any of the function of the District Judge as may be assigned. Section 24 of the Code of Civil Procedure, which is in

peri materia with the Central Code, having specifically excluded the Additional and Assistant Judges by treating them as subordinate to the District

Court, even the assignment of the said powers by the District Judge is impermissible. Hence the Additional District Judge Ramban is not

empowered to entertain the application and pass the order transferring the suit from the Court of Munsiff Banihal to the Court of Munsiff Ramban.

It is also not the case of the respondent in the revision petition that the Additional District Judge, Ramban was put in-charge of the District Court

when the application was filed and order was passed. In the absence of such pleadings in the transfer application, the power exercised by the

Additional District Judge under section 24 of the CPC is not sustainable.

The order of the court below also do not reflect issuance of notice to the petitioners who were shown as non applicants even though allegations

were made against the petitioners/non-applicants stating that they are influential persons due to which no lawyer at Banihal is willing to defend the

case of the applicants.. It is stated in the order that the revision petitioners were served notice through fixtures at their residential houses. Whether

affixture can be ordered at the first instance without taking other modes of service is the second aspect to be considered. As per Order 5 CPC

which contemplates for issuance of summons at the first instance, if notice/summons could not be served in the first instance then only the affixture

of notice at the address of the respondents will arise as contemplated under Order 5, Rule 20 CPC. In this case, without attempting to serve the

notice on the petitioners-non applicants in the transfer application, straightway affixture of notice was ordered. The said procedure is also non-

sustainable. Thus order was passed without getting objections or hearing the petitioners and the same is in violation of Section 24(1) of the Code

of Civil Procedure. On both the grounds the order of transfer of the case from the Court of Munsiff Banihal to the court of Munsiff at Ramban

passed by the Additional District Judge, Ramban is liable to be set aside.

Accordingly the revision petition is allowed with a direction to the learned Munsiff Banihal to dispose of the suit which is pending for more than

13 years, within a period of six months from the date of receipt of a copy of this order. No costs.