Seema Dubey vs Principal Judge, Family Court and Others

O.P. Srivastava, J.—This is an application by Smt. Seema Dubey purported to be u/s 24 of the CPC praying that Regular Suit No. 397 of 2006, Mr. Kant Dubey v. Seema Dubey, u/s 13 of the Hindu Marriage Act, be transferred from the Court of Principal Judge, Family Court, Lucknow to the Court of competent jurisdiction at Jaunpur.

The office has raised following objection regarding maintainability of the application:

S.R. has to submit that this application is not maintainable in this Hon. High Court at Allahabad. It should be filed at Lucknow Bench.

u/s 24, CPC the High Court, on the application of any of the parties, may at any stage withdraw any proceedings pending in any Court subordinate to it and transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same. However, question is as to where application for transfer would lie. In my opinion, the relevant provision is contained u/s 23 of the Code of Civil Procedure, which is as follows:

To what Court application lies-(1) Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application u/s 22 shall be made to the Appellate Court.

(2) Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court.

(3) Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court, in which the suit is brought, is situated.

From the above provision it is clear that where the Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court and where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court, in which the suit is brought, is situated.

The matter of jurisdiction has to be examined in light of the above facts, provision of law and the judgment of Hon''ble Supreme Court rendered in Sri Nasiruddin Vs. State Transport Appellate Tribunal, , in regard to the jurisdiction at Lucknow and Allahabad in relation to High Court. Hon''ble Supreme Court in the said case has held that the case falling within the jurisdiction at Lucknow are to be presented at Lucknow and not at Allahabad. Relevant portions of the said judgment are extracted herebelow to facilitate the proper appreciation.

The conclusion as well as the reasoning of the High Court that the permanent seat of the High Court is at Allahabad is not quite sound.

A case falling within the jurisdiction of Judges at Lucknow should be presented at Lucknow and not at Allahabad.

A case pertaining to the jurisdiction of the Judges at Lucknow and presented before the Judges at Allahabad cannot be decided by the Judges at Allahabad in absence of an order contemplated by the second proviso to Article 14 of the Amalgamation Order, 1948.

From the above, it is apparent that the Judges at Lucknow and Allahabad have to exercise jurisdiction over the cases cognizable at the two places in relation to their territorial jurisdiction.

Therefore, in my opinion, in view of Section 23 of CPC and the above observations of the Hon''ble Supreme Court in Nasiruddin ''s case (supra), the application for transfer of case pending at Lucknow within the territorial jurisdiction of Hon''ble Judges at Lucknow, shall lie at Lucknow and not at Allahabad. Therefore, office objection in regard to the jurisdiction is sustainable.

However, Hon''ble Supreme Court in Nasiruddin''s case (supra), has observed that if a case is wrongly presented at Allahabad, the Judges at Allahabad cannot summarily dismiss it, but the case should be returned for filing before the Judges at Lucknow.

Therefore, while holding that the application is not entertainable at Allahabad, it is hereby directed that the same be returned for presentation at Lucknow.