Akshay Gupta vs Smt. Swati Gupta
2018 Latest Caselaw 3758 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 5
 

 
Case :- SPECIAL APPEAL No. - 1126 of 2018
 

 
Appellant :- Akshay Gupta
 
Respondent :- Smt. Swati Gupta
 
Counsel for Appellant :- Ranjit Saxena
 

 
And
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 826 of 2018
 

 
Appellant :- Akshay Gupta
 
Respondent :- Smt. Swati Gupta
 
Counsel for Appellant :- Ranjit Saxena
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Salil Kumar Rai,J.

(Delivered by Hon'ble Salil Kumar Rai, J.)

We have heard Sri Ranjit Saxena, learned counsel for the appellant and Sri Utkarsh Birla and Sri Vinayak Mittal, learned counsel for the respondent.

As a common question of law is involved in both the special appeals and the parties are the same, therefore, the above-mentioned special appeals are being decided by a common judgment.

The facts of the case are that the appellant is the husband of the opposite party. The appellant filed Misc. Case No. 13 of 2017 under Section 25 of the Guardian and Wards Act against the opposite party for custody of their minor daughter. The aforesaid case was filed before the Family Court, Meerut and was nominated for adjudication to the Additional Principal Judge, Family Court, Meerut. The appellant filed an application before this Court under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as, 'CPC') praying that Case No. 13 of 2017 pending in the court of Additional Principal Judge, Family Court, Meerut be transferred for adjudication to the court of Principal Judge, Family Court, Meerut, U.P. The aforesaid application was numbered as Transfer Application (Civil) No. 486 of 2018. The Transfer Application (Civil) No. 486 of 2018 was dismissed by the learned Single Judge vide his order dated 3.10.2018. The order dated 3.10.2018 passed in Transfer Application (Civil) No. 486 of 2018 has been challenged in Special Appeal No. 1126 of 2018.

The opposite party had also filed Hindu Marriage Petition No. 1280 of 2015 under Section 9 of the Hindu Marriage Act, 1955 against the appellant praying for restitution of conjugal rights. In Hindu Marriage Petition No. 1280 of 2015, the opposite party had also filed an application under Section 24 of the Hindu Marriage Act, 1955 praying for maintenance pendente-lite. Hindu Marriage Petition No. 1280 of 2015 as well as the application filed under Section 24 of the Hindu Marriage Act, 1955 were filed before the Family Court, Meerut and were nominated for adjudication to the Additional Principal Judge, Family Court, Meerut. Subsequently, the appellant filed an application under Section 24 of CPC before this Court praying that Hindu Marriage Petition No. 1280 of 2015 as well as the application filed by the opposite party under Section 24 of the Hindu Marriage Act, 1955 be transferred for adjudication to the court of Principal Judge, Family Court, Meerut. The said application was numbered as Transfer Application (Civil) No. 454 of 2018 and was dismissed by the learned Single Judge vide his order dated 14.9.2018. The Special Appeal (Defective) No. 826 of 2018 has been filed challenging the order dated 14.9.2018 passed by the learned Single Judge dismissing Transfer Application (Civil) No. 454 of 2018.

The Special Appeal (Defective) No. 826 of 2018 is beyond time by 14 days. The counsel for the opposite party has no objection if the delay in filing the Special Appeal (Defective) No. 826 of 2018 is condoned. We have perused the affidavit filed in support of the delay condonation application and find that the delay in filing the special appeal has been satisfactorily explained and, therefore, condone the delay in filing the said appeal. Office shall grant regular number to Special Appeal (Defective) No. 826 of 2018.

A preliminary objection has been raised by the counsel for the opposite party that the special appeals filed against the orders of the learned Single Judge, dismissing the applications filed under Section 24 of the CPC are not maintainable and has, therefore, prayed that the special appeals be dismissed. In support of his argument, the counsel for the opposite party has relied on a Division Bench judgment of this court delivered in Amit Khanna vs Smt. Suchi Khanna (2009) 107 RD 800. Per contra, the counsel for the appellant has argued that the special appeals are maintainable in view of another judgment by a Division Bench of this Court in Mahendra Pratap Bhatt vs Saroj Mahana (2016) 5 AWC 4881 and has, therefore, urged that the appeals be heard on merit.

In view of the arguments of the counsel for the parties, before considering the orders passed by the learned Single Judge, the issue that has to be decided by this Court is whether under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter referred to as, 'Rules, 1952') special appeal is maintainable against an order passed by a Single Judge of this Court under Section 24 of the CPC.

We have considered the rival submissions of the counsel for the parties and have also perused the judgments of this Court in Amit Khanna (supra) and Mahendra Pratap Bhatt (supra).

In Amit Khanna (supra), a Division Bench of this Court held that no appeal, either under Section 104 CPC or under any other provision of CPC, was provided against an order passed on an application filed under Section 24 CPC. Observing that the right to appeal is a statutory right, the Division Bench held that Section 105 CPC impliedly excluded any appeal against an order passed on an application filed under Section 24 CPC and, therefore, holding that an appeal would lie under Chapter VIII Rule 5 of the Rules, 1952 against such an order passed by a Single Judge of this court would amount to conferring a jurisdiction of appeal which was not specifically provided but has been impliedly excluded. The relevant observations of the Division Bench of this Court in Paragraph Nos. 22 and 23 of the judgment are reproduced below:

"22. According to above provision no appeal is maintainable from any order of the Court passed in exercise of its original or appellate jurisdiction, except against orders which have been made appealable under Section 104 C.P.C. Undisputedly, an order passed on an application under Section 24 C.P.C. has not been made appealable under any provision of the C.P.C. including Section 104 C.P.C. Right to appeal is not inherent unless it is specifically provided by the statute. Since the Code of Civil Procedure does not specifically provide for an appeal against an order passed on a transfer application and at the same time by implication excludes an appeal against such an order by virtue of Section 105 C.P.C., therefore, merely for the reason Rule 5 Chapter VIII of the Rules of the Court, 1952 is silent in this regard it would not confer jurisdiction of appeal. If any contrary interpretation is made and the appeal is held to be maintainable it would amount to conferring jurisdiction of appeal which otherwise is not specifically provided but is expressly as well as by implication excluded by Section 105 C.P.C. Thus, in the above scenario the right of special appeal as contemplated by Rule 5 Chapter VIII of the Rules of the Court, even though the same is independent to the provisions of C.P.C., against the order of the single judge passed on a transfer application under Section 24 C.P.C. stands impliedly excluded.

23. It is for this reason that tradition in this Court has always been not to file an appeal against an order either allowing or rejecting an application under Section 24 C.P.C. passed by the District Judge or a Single Judge of this Court. Where an order is passed under Section 24 C.P.C. by the District Judge the aggrieved party either moves a fresh application or challenges before the High Court in exercise of supervisory powers under Article 227 of the Constitution of India. Similarly, where an order is passed by the learned Single Judge under Section 24 C.P.C. either a fresh application is moved before the Supreme Court under Section 25 C.P.C. or the matter is taken up under Article 136 of the Constitution of India."

A reading of the aforesaid observations of the judgment of this Court clearly shows that the question raised in the present special appeals is no more res integra and it has been conclusively held that an appeal under Chapter VIII Rule 5 of the Rules, 1952 against an order passed by a Single Judge of this Court on an application filed under Section 24 CPC would not be maintainable. But, the counsel for the appellant has argued that in view of another judgment passed by a Division Bench in Mahendra Pratap Bhatt (supra), the ratio of the Division Bench of this Court in Amit Khanna (supra) stands diluted and, therefore, in certain circumstances, an appeal under Chapter VIII Rule 5 of the Rules, 1952 against an order passed by a Single Judge on an application filed under Section 24 CPC would be maintainable. We have perused the judgment of the Division Bench in Mahendra Pratap Bhatt (supra).

In said case, a learned Single Judge of this Court sitting at Lucknow Bench had entertained the application filed under Section 24 CPC even though the cause of action and the case which was the subject of the application filed under Section 24 CPC related to and was pending before the Family Court, Allahabad. The Single Judge, by his order passed in the said case, transferred the case to Lucknow for mediation. In the facts of the said case, the Division Bench in Mahendra Pratap Bhatt (supra) held that the application filed under Section 24 CPC was not maintainable before the Lucknow Bench which did not have the territorial jurisdiction to entertain an application filed under Section 24 CPC for transfer of a case pending before the Principal Judge, Family Court, Allahabad. In view of the said fact, the Division Bench in Mahendra Pratap Bhatt (supra) held that as the order of the Single Judge was without jurisdiction, therefore, the ratio of the Division Bench in Amit Khanna (supra) would not apply. The Court further held that the order passed by the learned Single Judge in Mahendra Pratap Bhatt (supra) was in purported exercise of power under Article 226 of the Constitution of India and therefore special appeal against the order of Single Judge was maintainable as a special appeal under Chapter VIII Rule 5 of the Rules, 1952 would be maintainable against such purported exercise of powers under Article 226 of the Constitution of India. The relevant observations of the Division Bench in paragraph nos. 13, 16 and 17 of Mahendra Pratap Bhatt (supra), are reproduced below:

"13. There is yet another dimension according to which the ratio of the case of Amit Khanna on the facts of the present case would not apply. That case was not a case of total lack of territorial jurisdiction. The only issue was the maintainability of a Special Appeal arising out of an order under Section 24 CPC. The jurisdictional issue was not involved therein as in the present case and consequently, the said case stands distinguished both on facts and law.

16. The above propositions therefore as applied on the facts of the present case leave no room for doubt that neither the application under Section 24 was maintainable before this Court nor was the order passed by the learned Single Judge related to a subject matter within the territorial jurisdiction of this Court. This inherent lack therefore has to be co-related to the nature of the order passed.

17. In our opinion, at the best, the impugned order of the learned Single Judge would be, if at all, in the purported exercise of power under Article 226 of the Constitution of India. That being so, such purported exercise of power under Article 226 of the Constitution of India would be amenable to an intra-Court Special Appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 which is extracted hereunder:- ..."

(emphasis added)

From a joint reading of the judgments of this Court in Amit Khanna (supra) and Mahendra Pratap Bhatt (supra), it would be evident that a special appeal under Chapter VIII Rule 5 of the Rules, 1952 against an order passed by a Single Judge on an application filed under Section 24 CPC would not be maintainable except where the order passed by the Single Judge is without jurisdiction.

In the present case, the applications under Section 24 CPC filed before the learned Single Judge related to a case pending before the Additional Principal Judge, Family Court, Meerut and the prayer was to transfer the same to the Principal Judge, Family Court, Meerut. The applications were filed before the Allahabad Bench of Allahabad High Court which has the territorial jurisdiction over district Meerut. In view of the aforesaid, no jurisdictional error was committed by the learned Single Judge while entertaining the aforesaid applications under Section 24 CPC and the orders dated 3.10.2018 and 14.9.2018 passed by the learned Single Judge dismissing the applications filed by the appellant under Section 24 CPC were within the jurisdiction of the learned Single Judge. Thus, the exception made by the Division Bench of this Court in Mahendra Pratap Bhatt (supra) is not applicable in the present case. Thus, in view of the judgment of this Court in Amit Khanna (supra), the present special appeals are not maintainable.

For the aforesaid reasons, Special Appeal No. 1126 of 2018 and Special Appeal (Defective) No. 826 of 2018 filed against the orders dated 3.10.2018 and 14.9.2018 passed by the learned Single Judge are not maintainable and are dismissed as such.

Order Date :- 16.11.2018

Satyam