Madhu Bala Verma vs Tribhuvan Singh
1998 Latest Caselaw 864 Del

JUDGMENT

Mukul Mudgal, J.

1. There is no appearance on behalf of the parties. Since this revision petition is of the year 1986, and arises out of a matrimonial dispute, the matter is taken up today for final disposal.

2. By the impugned order dated 8.5.86, the learned District Judge declined an application filed under Section 21A of the Hindu Marriage Act (hereinafter referred to as the Act) read with Sections 10 and 151, CPC by which the petitioner-wife had sought transfer of the divorce petition field by the respondent-husband at Delhi on 3.7.85, to the Court of District Judge, Ghaziabad as an earlier petition under Section 13 of Hindu Marriage Act field on 19.2.1985 had been instituted by her at Ghaziabad.

3. Section 21A of Hindu Marriage Act reads as Under :

21-A Power to transfer petitioners in certain cases - (1) Where -

(a) a petition under this Act has been presented to a District Court having jurisdiction by a party to a marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13, and

(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 13 on any ground, whether in the same District Court in a different District Court, in the same State or in a different State.

the petitions shall be dealt with as specified in sub-section (2).

(2) in a case where sub-section (1) applies -

(a) if the petitions are presented to the same District Court, both the petitions shall be tried and heard together by that District Court;

(b) if the petitions are presented to different District Courts, the petition presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed to together by the District Court in which the earlier petition was presented.

(3) In a case where Clause (b) of Sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the District Court in which the later petition has been presented to the District Court in which the earlier petition is pending, shall exercise its powers to transfer such later petition as it had been empowered so to do under the said Code.

4. The learned District Judge has reasoned that he was not competent under Section 21A(2)(b) of the Act to transfer the petition under Section 21A to Ghaziabad and observed that the application for transfer be moved in an appropriate Court. Presumably the learned Judge was referring to the powers of the Hon'ble Supreme Court under Section 25 of the C.P.C. for transferring civil proceedings pending in one state to another State in the country. Section 25 of C.P.C. reads as follows:

Power of Supreme Court to transfer suits, etc.

25(1) On the application of a party, and after notice to the parties, and after any stage, if satisfied that an order this section is expedient for the ends of justice, direct that any suit, appeal or other proceedings be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding in transferred shall, subject to any special directions in the order of transfer, either re-try it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of onion that the application was frivolous or vexations, order the applicant to pay by way of compensation to pay person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.

5. It would have been appropriate if the learned Judge had observed that the parties should move the Hon'ble Supreme Court as the only Court referred to under Section 21A which is empowered to transfer cases from one State to another is the Hon'ble Supreme Court as is clear from a reading of Section 25A of C.P.C. This position has been clarified by the Hon'ble Supreme Court by a judgment reported in 1981 (2) SIC 646, Guda Vijayalaxmi Vs. Gouda R. Sekhara Sastry. In the above judgment the Hon'ble Supreme Court while dealing with the powers under Section 25, C.P.C. has also dealt with the scope of Section 25, C.P.C. in view of Section 21A of the Hindu Marriage Act and has held that Section 21 & Section 21A of the Hindu Mar-

riage Act do not exclude the Supreme Court's jurisdiction under Section 25, C.P.C. to entertain an application for transfer of a suit filed under the Hindu Marriage Act. Since the transfer sought is to the District Court at Ghaziabad from the District Court at Delhi, i.e. from one State to another under Section 21(A)(2)(b) of the Act, the power to transfer such proceedings vests only in the Supreme Court as per Section 25, C.P.C. It is only when the transfer sought is within the State does the High Court have jurisdiction under Section 24 of the C.P.C. which read as follows:

General Power of transfer and withdrawal.

24(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired 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 trail 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 proceedings 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 proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this Section, -

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Courts;

(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 purpose 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.

6. Thus, Section 24, C.P.C. clearly stipulated that the High Court or the District Court can transfer proceedings from any Court subordinate to it to another Court subordinate to it and competent to try the same. Since the Court to which the transfer is sought is in U.P., therefore the High Court of Delhi or the District Court at Delhi was not competent to exercise the jurisdiction under Section 24, C.P.C. and such power to transfer proceedings from a Court in one State to Court in another State could be exercised only by the Supreme Court under Section 25, C.P.C. Thus, the impugned order calls for no interference. Accordingly, the petition is disposed of with the observation that since the power to transfer suits or proceedings from one State to another under Section 25 of Civil Procedure Code or otherwise vests only in the Hon'ble Supreme Court, it is appropriate that the petitioner may, if so advised, move the Hon'ble Supreme Court for appropriate relief. There shall be no order as to costs.