Mohammad Ramzan Sofi vs Krishen Lal

M.Y. Kawoosa, J.—This civil revision petition is directed against the impugned order passed by learned District Judge, Srinagar on 3-3-

1997 in a miscellaneous transfer petition captioned Krishen Lal Isher v. Mohammad Ramzan Sofi and others. The learned Judge . has passed the

order which reads as under:

......I would not like to hear this transfer application and the same is accordingly transferred to the Court of Additional District Judge, Srinagar, for

disposal under law. Counsel for the parties are directed to appear before the transferee Court on 8-3-1997......

Petitioner in the present revision petition has stated that he has filed a civil suit for ejectment which is pending in the Court of Sub-Judge (Judge

Small Causes Court, Srinagar) respondent-K. L. Isher, who is defendant in the case had also filed a suit for injunction before the Court of 1st

Addl. Munsiff, Srinagar. Respondent has come up with an application for transfer before the Court of District Judge, Srinagar seeking transfer of

the case rending in the Court of 1st Addl. Munsiff in the Court of Judge Small Cause, just to avoid apprehension of conflicting judgment. The

learned District Judge, Srinagar by passing the above impugned order declined to hear the matter on the personal grounds and accordingly

transferred the application to the Court of Additional District Judge, Srinagar for disposal. This transfer has been assailed by the petitioner on the

ground that u/s 24 Code of Civil Procedure, it is only the High Court or the Principal District Judge who can hear the transfer case from one

Subordinate Court to another Court. Petitioner raised the plea that the Additional District Judge is not competent to hear the transfer application

and cannot transfer a case from one subordinate Court to another Court vis-a-vis u/s 24 of the C.P.C. He stated that by virtue of Section 24

exclusive power of transferring the case from one subordinate Court to another Court vests with Principal District Judge, or with High Court and

the District Judge has no authority and power to delegate the same to any Additional District Judge, unless he gets sanction from the High Court.

No legal assistance is available in this case, because nemo is present for the parties. However, the point is very important, so I intend to dispose

of this, on merits. Section 32 of Civil Courts Act is regarding the delegation of powers of District Judge. A District Judge may, with the previous

sanction of the High Court, delegate to any Subordinate Judge in the District the power conferred on a District Court by Sections. 28, 29 and 30

of this Act and Section 24 of the Code of Civil Procedure, to be exercised by the Subordinate Court/Judge in any specified portion of the districts,

subject to the control of the District Court. This provision is not relevant in the matter, because, this is regarding the delegation of District Judge's

powers to Subordinate Judges.

Additional District Judge here has been deleted purposely, because u/s 16 of the Civil Courts Act, he has already got the powers of District Judge

regarding the cases which are assigned to him.

The main plea raised by the petitioner is that Section 24 of the CPC gives an exclusive power of transfer and withdrawal either to the High

Court or to the District Court at any stage. There is no dispute regarding this provision of law, but, if it is read with Section 16 of the Civil Courts

Act. The position becomes clear. Section 16 of Civil Courts Act reads as under :

.......(1) When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the

Government may on the recommendations of the High Court appoint such Additional Judge or Judges as may be necessary.

(2) An Additional Judge so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to him, and in the

discharge of those functions he shall exercise the (sic) powers as the District Judge......

It is obvious from this provision of law that it is the District Judge who has to distribute the work u/s 16 of Civil Courts Act. It is a fact ""that the

Additional District Judge has no power of its own to hear the transfer application or to transfer the case from one Subordinate Judge to another

Subordinate Judge except u/s 23 of Civil Procedure Code.

u/s 16 of the Civil Courts Act whatever work is assigned to the Additional District Judge by the Principal District Judge, all the powers of the

District Judge are automatically vested with the Additional District Judge to dispose of those cases. Here in this case, learned District Judge has

shown inability to hear the transfer application on personal grounds. He has assigned this work to Additional District Judge for disposal. I think

there is no legal bar to hear and dispose of the same. My view is fortified by Prof. Bhagwandas Bhargava Vs. Durga Prasad Rastogi, at para six,

which reads as under:-

......Another contention which has been raised is that the Additional District Judge could not dispose of the transfer application u/s 24, Civil P. C.

This contention too has no force. u/s 10(3) of the Rajasthan Civil Courts Ordinance, 1950 any Additional District Judge is competent to discharge

any of the functions of a District Judge, which the latter may assign to him and in the discharge of those functions he shall exercise the same powers

as the District Judge. The District Judge having transferred the transfer application to the Additional District Judge No. 2, the latter was competent

to exercise the powers of the District Judge u/s 24, Civil P. C. in respect of it.....

For these reasons, therefore, it is held that once the transfer application is assigned to the Additional District Judge by the District Judge,

Additional District Judge, has the power to dispose it of under S. 16 of Civil Courts Act read with Section 24 of Civil Procedure Code.