Pradeep Kumar Dheeman vs A.K. Chakrawarti
2022 Latest Caselaw 2433 UK

       IN THE HIGH COURT OF UTTARAKHAND
                  AT NAINITAL

                Review Application No. 2 of 2021
                                 In
               Writ Petition No. 2399 of 2021 (M/S)

Pradeep Kumar Dheeman                             ..... Petitioner
                                Versus
A.K. Chakrawarti                                  .....Respondent

Present:
      Mr. Narendra Bali, the learned counsel for the petitioner/ review
      applicant.
      Mr. Pradeep Kumar Chauhan, the learned counsel for the
      respondent.

                   Date of judgment: 03.08.2022

Sri S.K. Mishra, J.

Heard learned counsel for the parties on review application.

2. The petitioner/review applicant in the writ petition no. 2399 of 2021 has filed this application under Order XLVII Rule 1 r/w Section 114 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code for brevity) for of review the final order passed by this Court on 17.11.2021, dismissing the application of the petitioner in limine.

3. The petitioner in the writ petition has challenged the concurrent findings of the learned 3rd Additional District and Session Judge, Haridwar, being the revisional Court, confirming the order passed by the learned 2nd Additional Civil Judge (Sr. Div.) Haridwar, directing the petitioner- tenant to evict the building in question and deliver the possession of the same to the respondent/opposite party, under Section 5 r/w Section 16 of the Provincial Small Causes Courts Act, 1887.

4. The petitioner is admittedly the tenant under the respondent/opposite party. The respondent has initiated original proceeding before the court of SCC/Civil Judge (Sr. Div.) Haridwar, for eviction of the petitioner from the tenanted premises. The petitioner appeared before the Civil Judge (Sr. Div.) and filed counter affidavit/written statement, and, however, the case was transferred by the order passed by the learned District Magistrate, Haridwar to the court of 2nd Additional Civil Judge (Sr. Div.), Haridwar. The matter was heard and finally disposed of by the learned 2nd Additional Civil Judge (Sr. Div.) Haridwar. The petitioner never raised the question of jurisdiction before it. The learned 2nd Additional Civil Judge (Sr. Div.), thereafter, allowed the application directed the petitioner to vacate the tenanted premises. Against said order, the petitioner preferred revision to the court of 3rd Additional District and Session Judge, Haridwar. Therein the petitioner took the ground of lack of jurisdiction on the part of the original court to decide the case, but the same was rejected by the revisional court. This Court, when the matter was listed as fresh for admission, took note of Section 21 of the Code and held that at the stage of challenging the orders and concurrent finding, the petitioner shall be foreclosed from taking objection regarding the jurisdiction of the original court. Said order has been sought to be reviewed in this case, basis on the ratio decided by the Hon'ble Supreme Court in the case of Chie Engineer, Hydel Project & Ors. vs. Ravindra Nath & Ors., AIR 2008 Supreme Court 1315 wherein the Hon'ble Supreme Court has held that Civil Court has no jurisdiction to entertain the suit. The issue in that case relate to the rights and liabilities of the litigant under the Labour Laws. The Hon'ble Supreme Court took into

consideration the principle of coram non judice and held that once the original decree itself has been held to be without jurisdiction, the civil court has absolutely no jurisdiction in the matter decided by it.

5. However, the facts of the present case are different in the sense that the respondent initiated a proceeding before the designated Small Causes Court, i.e., Civil Judge (Sr. Div.). Admittedly, the Civil Judge (Sr. Div.) is a designated court. However, the learned District Judge, Haridwar, by order transferred the case to the court of 2nd Addl. Civil Judge (Sr. Div.) Haridwar. Now the question arises whether the 2nd Addl. Civil Judge (Sr. Div.), Haridwar, can be said to be having no jurisdiction at all and the order passed by it can be held to be without jurisdiction, being hit by doctrine of coram non judice.

6. Mr. Pradeep Kumar Chauhan, the learned counsel for the respondent would draw attention of the Court to Sub- section 4 of Section 24 of the Code and would submit that such a situation has been saved by this particular provision. Mr. Narendra Bali, the learned counsel for the review applicant, on the other hand, would submit that as there is no application from the side of any of the parties to the litigation, the order of transferring the proceedings from the court of Civil Judge (Sr. Div.), Haridwar to the court of learned 2nd Addl. Civil Judge, (Sr. Div.) Haridwar, will not confer any jurisdiction upon him.

7. For the appreciation of this issue we take into consideration the exact words used by the legislation, which is quoted below:-

"24. General power of transfer and withdrawal.--(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 trial or 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) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which 1 [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.

2 [(3) For the purposes of this section,--

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

(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 purposes of such suit, be deemed to be a Court of Small Causes.

3 [(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]"

8. It is apparent for the plain reading of this statute that the High Court or the District Court may at any stage of the proceedings, on the application filed by any of the party 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 may transfer suit, appeal or other proceedings before it for trial or disposal to any of the subordinate court or withdraw any suit or

appeal from one court and transferred it to another court subordinate to it. Thus, it is clear that the power of the High Court and the District Court can be exercised on an application filed by any of the parties or suo motu. The first limb of the sub-section (1) of Section 24 of the Code provides for judicial adjudication of transfer application in which one party press for a transfer of suit or proceeding from one court to another court, whereas second limb beginning from "or of its own motion without such notice", provides for the administration power of the High Court as well as the District Court. It is learnt from our own experience that in certain exigencies the High Court and the District Court do pass orders transferring cases from one Court to another Court either as a batch or singly. Therefore, for the second type of orders, it is the second alternative jurisdiction of the High Court or the District Court is exercised. It is not dependent upon any application to be filed by any of the parties. It can be suo motu passed by the High Court or the District Court either to meet the administrative exigency or any other such reasons. Thus, it is clear that order passed by the learned District Judge, Haridwar, transferring the case from the court of Civil Judge (Sr. Div.) to the court of 2nd Additional Civil Judge (Sr. Div.) is administrative action. For the purpose of transfer the case from one court to another court does not depend upon filing of application by any of the party or passing judicial order or after hearing other parties.

9. In that view of the matter, the objection qua applicability of Sub-section 4 of Section 24 of the Code is not acceptable.

10. Coming to Sub-section 4, it is seen that the Code has very specifically provided in clear terms, that if the case is withdrawn from the Court of Small Causes in exercise of the powers under Section 24 of the Code and transferred to another court then for the purpose of such suit the transferee court shall be deemed to be Court of Small Causes. In that view of the matter, this Court is of the opinion that the transferee court, i.e., the learned 2nd Addl. Civil Judge (Sr. Div.) Haridwar is the Court of Small Causes within the purview of Section 24 of the Code and also within the meaning of Small Causes Court as defined in the Provincial Small Causes Courts Act, 1887. The review applicant has raised the question of jurisdiction for the first time in the revisional court but the revisional court has rejected the objections regarding jurisdiction. By virtue of Sub- section (1) of Section 21 of the Code, the question of jurisdiction raised before this Court in an application for issuance of writ of certiorari and mandamus, thereby the same is being hit by Section 21 of the Code. The Court of 2nd Additional Civil Judge (Sr. Div.) Haridwar, shall be deemed to be a Court of Small Causes for the purposes of Provincial Small Causes Courts Act and also under Section 24 of the Code by virtue of Sub-section 4 of the provision.

11. In that view of the matter, the review application is dismissed being devoid of merit. Interim order stands vacated. It is, however, noticed by this Court that in the order passed by this Court on 07.11.2021, inadvertently transferee court has been referred as Additional Civil Judge (Jr. Div.) which in fact is 2nd Additional Civil Judge (Sr. Div.), Haridwar, and, therefore, it is further directed that by virtue of this order the expression 'Additional Civil Judge (J.D)' appearing in original order dated 17.11.2021 passed in WPMS No. 2399 of 2021 shall be read as '2nd Additional Civil Judge (Sr. Div.) Haridwar'.

(Sanjaya Kumar Mishra, J.) (Grant certified copy as per Rules.) PV