Rajendra Prasad Tiwari vs Suresh Kumar And 3 Others
2023 Latest Caselaw 12650 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 2067 of 2023
 

 
Petitioner :- Rajendra Prasad Tiwari
 
Respondent :- Suresh Kumar And 3 Others
 
Counsel for Petitioner :- Suresh Chandra Tiwari
 

 
Hon'ble Manish Mathur,J.

Heard learned counsel for petitioner. Issue notices to opposite parties 1 and 2. In view of order being passed, notices to opposite parties 3 and 4 being merely in proforma in nature stand dispensed with.

Learned counsel for petitioner submits that earlier petitioner had filed regular suit No. 103 of 2003 for permanent injunction in the court of Civil Judge (J.D.), Haveli, Faizabad. Due to vacancy in court concerned, the aforesaid suit was directed to be transferred in the court of Additional District Judge/F.T.C-II, Faizabad who has thereafter dismissed the suit by means of impugned ex parte judgment and decree dated 25th May, 2022.

Learned counsel for petitioner submits that even in case the court of Civil Judge was vacant, transfer of regular suit could have been only in accordance with pecuniary jurisdiction available due to which transfer was required to be made only to another coordinate court and not to the court of Additional District Jude, which even otherwise was appellate court. It is thus submitted that judgment and decree impugned has been passed without jurisdiction.

Although against impugned judgment and decree, normally an appeal under Section 96 of the Code would be available to the petitioner but in view of the sole ground raised by learned counsel for petitioner that the impugned judgment and decree has been passed without jurisdiction, this court is taking cognizable under Article 227 of Constitution of India and therefore the petition is held to be maintainable.

List this case on 29th May, 2023 as a fresh case.

Opposite parties may file their counter affidavit in the meantime.

Office is directed to obtain a report from the learned District Judge Faizabad with regard to aforesaid submissions particularly indicating any notification whereby regular suit cognizable in the court of Civil Judge (Junior Division) can be transferred to the court of Additional District Judge in case of vacancy in the court of Civil Judge.

Till the next date of listing, the parties are directed to maintain status quo with the suit property.

Order Date :- 24.4.2023

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