THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO
Tr.C.M.P.No.537 OF 2012
ORDER:-
This petition is filed for transfer of O.S.No.644 of 2010 on the file
of the Court of II Additional Chief Judge, City Civil Court, Hyderabad,
to the Court of the Chief Judge, City Civil Court, Hyderabad, as the
connected suits O.S.No.317 of 2010 and O.S.No.248 of 2011 are
pending on the file of the Chief Judge, City Civil Court, Hyderabad.
2. It is alleged that the petitioner is the defendant in all the three
suits and there was an understanding with regard to the payments of
the amounts and the defence in all the suits is common and nature of
evidence to be adduced is the same. When this Court questioned as to
why the application is filed before this Court when the remedy under
Section 24 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) can
be availed before the Chief Judge, the learned Counsel for the
petitioner contended that in view of the decision of this Court reported
i n Manchukonda Venkata Jagannadham v. Chettipalli Bullamma
and others
[1]
, the said transfer application is not being entertained
and consequently it has become a bar.
3. According to the purport of the above judgment, Additional
District Judge is not subordinate to the District Judge and
consequently, the District Judge has no power to transfer the same
and cannot exercise the power under Section 24 CPC for transferring
of any cases from his file or withdrawing the cases from the file of the
Additional District Judge. He did not agree with the Judgment of the
Karnataka High Court and also found that under Section 24 CPC it is
difficult to import that Additional and Assistant Judges referred to
means Additional District Judge and consequently held that the
transfer application cannot be entertained by the District Judge.
4. Before considering the maintainability of the application, it is to
be noted that the purpose of procedural law is for the convenience of
the parties and the Court. It is always aimed at speedy and less
expensive remedy to the parties. Any effort to interpret the procedural
law should be necessarily with the object of the interest of the parties
unless there is any mandatory prohibition for exercise of any power. It
is also to be noted that more importance has to be given to the
provisions of the CPC rather than the provisions of the other Act, if they
are not in conflict or in exclusion.
5. Section 24 CPC is as follows:
“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) Whereas any suit or proceeding has been transferred or
withdrawn under sub section (1), the Court which1 [is
thereafter to try or dispose of such suit or proceeding] 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 for 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.
[(5) A suit or proceeding may be transferred under this section
from a Court which has no jurisdiction to try it.]
6. Evidently, under Section 24(3)(a) CPC Additional and Assistant
Judges shall be deemed to subordinate to the District Court. The view
of the learned Judge in the above referred decision is to the effect that
the Additional District Judge is not subordinate to the District Judge
and consequently the power under Section 24 CPC cannot be
exercised by the District Judge. In short, the view of the learned Judge
is that Additional Judge and Assistant Judge referred under Section
24(3)(a) CPC is only with reference to the Senior Civil Judges or
Junior Civil Judges or the Additional chief Judges or Assistant Judges
in the City Civil Courts. I think this view of the learned Judge has to be
taken into consideration only if there is no provision under the Code.
Section 3 of the CPC is as follows:
“3. Subordination of Courts:- For the purposes of
this Code, the District Court is subordinate to the High Court,
and every Civil Court of a grade inferior to that of a District
Court and every Court of Small Causes is subordinate to the
High Court and District Court”.
This provision unambiguously shows that every Civil Court
which is inferior in grade is subordinate to the District Court, thereby
the Senior Civil Judges and Junior Civil Judges, who are inferior in
grade to the Court of the District Judge are subordinate. If the
legislature intended the same provision under Section 24 CPC, there
is no need to mention under Section 24(3)(a) CPC that Additional and
Assistant Judges are subordinate to the District Judge. Further-more,
when the statute itself and the section itself are clear or unambiguous,
there is no need to fall back on any other aid to arrive at a decision.
7. As can be seen from section 24 CPC, under Section 24(1)(a)
CPC, the District Court at any stage can 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 in any court subordinate
to it. Therefore, the power that can be exercised by the District Judge
includes the power of transfer from his Court and power of withdrawal
to his Court. It is to be further noted that such a transfer power
exercised by the District Judge should be a transfer to a Court
subordinate to it and competent to try the same. Evidently, the suits or
appeals, which are triable by the District Judge, cannot be transferred
to the inferior Court like Senior Civil Judges or Junior Civil Judges.
There is no denial of the fact that the law has been fairly well settled
that the competency to try a suit includes the territorial and pecuniary
jurisdiction of the Court. Therefore, it follows that the District Judge
cannot transfer a suit, which is triable by him to the other inferior Court.
Consequently, if the intention of the legislature is that the District
Judge has no power to transfer the case to the Additional District
Judge, then there need not have been the provision under Section
24(1) CPC for transfer or withdrawal by him to his Court or from his
Court. Therefore, it is quite clear that the legislature has purposefully
stated under Section 24(3)(a) CPC that the Additional and Assistant
Judges are subordinate to the District judge. It is evidently for the
purpose of including the Additional District Judges or Additional
Judges of any cadre. If such a power is not from District Judge, then
the purpose of Section 24(1)(a) and 24 CPC will be lost.
8. Further-more, Section 24 CPC does not say that Additional and
Assistant Judges are only Senior or Junior judges. If one looks at the
definition of a Judge under Section 2(8) CPC, ‘Judge’ means the
Presiding Officer of a Civil Court. Therefore, the Additional District
Judges, Senior Civil Judges or Junior Civil Judges are the Presiding
Officers of the Court. Therefore, by taking into consideration the
definition of ‘District’ under Section 2(4) CPC, the Principal Civil Court
is the District Court.
Section 2(4) CPC, reads as under:
“(4) “district” means the local limits of the jurisdiction of a
principal Civil Court of original jurisdiction (hereinafter called a
“District Court”), and includes the local limits of the ordinary
original civil jurisdiction of a High Court;”
9. In fact, even under the A.P. Civil Courts Act, 1972, it is the power
of the District Judge to allot the work and thereafter only the Additional
District Judge can dispose of the case with all the powers as a District
Judge. In fact, under the scheme of the A.P. Civil Court Act, the
appointment of the Additional District Judges or any Additional Judges
is only in cases where the requirement of the parties pending in a
District Court is taken into consideration under Section 11 of the A.P.
Civil Courts Act, which reads as follows:
11. Appointment of Additional District Judges:- (1) Where
in the opinion of the High Court, the state of business pending
in a District Court, so requires, the Government may, after
consultation with the High Court, appoint one or more
Additional District Judges to the District Court for such period
as they may deem necessary.
(2) An Additional District Judge so appointed shall
perform all or any of the functions of the District Judge under
this Act or any other law for the time being in force which the
District Judge may assign to him, and in the performance of
those functions, he shall exercise the same powers as the
District Judge”.
10. In fact, the provision under Section 24(3)(a) CPC is an age-old
provision under CPC and was found in the original Act, 1908 and what
was introduced, by way of amendment in 1976 is Section 24(3)(b)
CPC as there was a conflict of decisions with regard to the
interpretation of the proceedings and that has been clarified by
amending CPC in 1976. But, the Code itself originally contains
Section 24(3)(a) CPC and the opinion of the learned Jude in para
No.14 of the above decision is not correct.
11. If the District Judge has no power to entertain the transfer
application, the difficulties of the litigants will be many. For example,
in case from a single or common judgment connected appeals were
filed and they were made over to different District Courts, then if the
District Judge has no power to transfer, every litigant has to come to
the High Court, which definitely might not be the intention of the
legislature. So also, if in a motor accident claim, several claims are
filed from the same accident and they are pending in different
Additional Courts and if the District Judge has no power to transfer the
connected cases and if the claimants are to approach the High Court
only, apart from the expensiveness the other difficulties cannot be
ignored. Therefore, the purpose of power under Section 24 CPC
conferred on the District Judge is for the benefit of the litigants and this
power is consistent with the power to distribute the work by the District
Judge. Even if an application is not filed, the District Judge can suomotu
exercises the power. It is evidently meant for the cause of justice
and not for delays or difficulties to the litigants.
12. In this connection, it is useful to refer to a decision of Punjab
High Court reported in Obrien, M.W. Vs. Haji Abdul Rahman and
another
[2]
(Civil Revision No.2441 of 1911), whereunder it was
specifically held that under Section 24(3) CPC the District Judge has
got power to transfer a case pending before him to the Court of the
Additional District Judge. Further it has been held that-
“the first plea urged for the petitioner for our disposal is
that the Additional District Judge, who passed the decree had no
jurisdiction. The District Judge, who recorded the evidence not
being empowered to transfer a case to the Additional District
Judge, the Court being of co-ordinate jurisdiction, in our opinion,
Section 24(3) of CPC disposes of this objection, which must be
overruled”.
The above decision was followed in In Re: Abdul Malik
of the High Court of Calcutta decided on 24.12.1987
(MANU/WB/0383/1987).
13. Further it will be also useful to refer to a Division Bench of the
Calcutta High Court reported in Ajit Kumar Bhunia Vs. Sm. Kanan
Bala Deyi
[3]
. As per the scheme of Section 3 of the Bengal, Agra and
Assam7-10 Civil Courts Act, the Civil Courts are (1) the court of the
District Judge; (2) the Court of the Additional Judge; (3) the court of the
Subordinate Judge; and (4) the Court of the Munsif.
14. Under Section 8 of the above Act, power was given to appoint
Additional Judges for speedy disposal of the cases when the business
pending before the District Judge requires the aid of the Additional
Judges, which is also akin to Section 11 of the A.P. Civil Courts Act. It
will be useful to extract the observation of the Division Bench in para
No.17 of the judgment, as under:-
“Section 24 of the Code of Civil Procedure
postulates transfer to a competent court, such
competency to be found in and by virtue of some other
statutory provision, notification or otherwise and not
under or by virtue of anything, contained in the said
section. Section 24, itself. Section 8 (2) of the Bengal,
Agra and Assam Civil Courts Act is, however, differently
worded and, under it, the necessary authority or
competency, in the absence of anything to the contrary in
the nature of the particular proceeding or in the particular
statute, under which the same has been taken, is
inherent in the assignment itself And the mere
assignment, as stat-ed hereinbefore, carries with it, in
such cases, the necessary competency or authority,
provided, of course, -- but provided only, -- that the
transferee Judge is an "Additional Judge", -- and, as
seen above, an Additional District Judge is obviously
such "Additional Judge" in the relevant context. Under
Section 24, the District Judge can transfer only to a
competent court, such competency to be found otherwise
and outside the section. Under Section 8(2) of the
Bengal, Agra and Assam Civil Courts Act, however, the
District Judge can transfer to an Additional Judge or an
Additional District Judge and, as noted hereinbefore, in
the absence of anything to the contrary, the Additional
Judge's competency in that behalf can be assumed or
presumed, as it follows from the assignment itself in view
of the terms of the said Section 8 (2) itself. Reliance on
Section 24, therefore, may not solve the problem,
particularly when, in view of the above Supreme Court
pronouncement, it may not be proper to regard the
Additional District Judge as a Judge of the Court of the
District Judge and as possessing, accordingly, coordinate
authority with him.”
15. A reading of the above provision clearly shows that by the fact,
the power of transfer is inherent with the power of assignment of the
work. In fact, in several other decisions, the power of the District Judge
to transfer the cases under Hindu Marriage Act or the Election
Petitions and even the Land Grabbing Cases has been considered
and confirmed. Therefore, in view of the above circumstances, the
power of transfer vested in the District Judge cannot be curtailed by
restricted meaning when the intention and purpose of the same, is for
the convenience of all.
16. Therefore, I hold that the application for transfer has to be moved
before the District Judge, who is competent to entertain and
accordingly with a liberty to the petitioner to file the application before
the Chief Judge, City Civil Court, the transfer case is disposed of and
the Chief Judge shall dispose of the same according to law.
17. With the above observation, the Transfer Civil Miscellaneous
Petition is disposed of at the state of admission. No costs.
Miscellaneous Petitions, if any, pending in this petition shall stand
closed. Registry is directed to communicate the copy of the order to all
the District Judges in the State.
_______________________________
JUSTICE N.R.L. NAGESWARA RAO
Date:31.10.2012
Note: L.R. Copy to be marked.
(B/O)
INL
[1]
AIR 2011 AP 104
[2]
1913 Indian Cases 6
[3]
AIR 1960 CALCUTTA 565
Tr.C.M.P.No.537 OF 2012
ORDER:-
This petition is filed for transfer of O.S.No.644 of 2010 on the file
of the Court of II Additional Chief Judge, City Civil Court, Hyderabad,
to the Court of the Chief Judge, City Civil Court, Hyderabad, as the
connected suits O.S.No.317 of 2010 and O.S.No.248 of 2011 are
pending on the file of the Chief Judge, City Civil Court, Hyderabad.
2. It is alleged that the petitioner is the defendant in all the three
suits and there was an understanding with regard to the payments of
the amounts and the defence in all the suits is common and nature of
evidence to be adduced is the same. When this Court questioned as to
why the application is filed before this Court when the remedy under
Section 24 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) can
be availed before the Chief Judge, the learned Counsel for the
petitioner contended that in view of the decision of this Court reported
i n Manchukonda Venkata Jagannadham v. Chettipalli Bullamma
and others
[1]
, the said transfer application is not being entertained
and consequently it has become a bar.
3. According to the purport of the above judgment, Additional
District Judge is not subordinate to the District Judge and
consequently, the District Judge has no power to transfer the same
and cannot exercise the power under Section 24 CPC for transferring
of any cases from his file or withdrawing the cases from the file of the
Additional District Judge. He did not agree with the Judgment of the
Karnataka High Court and also found that under Section 24 CPC it is
difficult to import that Additional and Assistant Judges referred to
means Additional District Judge and consequently held that the
transfer application cannot be entertained by the District Judge.
4. Before considering the maintainability of the application, it is to
be noted that the purpose of procedural law is for the convenience of
the parties and the Court. It is always aimed at speedy and less
expensive remedy to the parties. Any effort to interpret the procedural
law should be necessarily with the object of the interest of the parties
unless there is any mandatory prohibition for exercise of any power. It
is also to be noted that more importance has to be given to the
provisions of the CPC rather than the provisions of the other Act, if they
are not in conflict or in exclusion.
5. Section 24 CPC is as follows:
“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) Whereas any suit or proceeding has been transferred or
withdrawn under sub section (1), the Court which1 [is
thereafter to try or dispose of such suit or proceeding] 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 for 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.
[(5) A suit or proceeding may be transferred under this section
from a Court which has no jurisdiction to try it.]
6. Evidently, under Section 24(3)(a) CPC Additional and Assistant
Judges shall be deemed to subordinate to the District Court. The view
of the learned Judge in the above referred decision is to the effect that
the Additional District Judge is not subordinate to the District Judge
and consequently the power under Section 24 CPC cannot be
exercised by the District Judge. In short, the view of the learned Judge
is that Additional Judge and Assistant Judge referred under Section
24(3)(a) CPC is only with reference to the Senior Civil Judges or
Junior Civil Judges or the Additional chief Judges or Assistant Judges
in the City Civil Courts. I think this view of the learned Judge has to be
taken into consideration only if there is no provision under the Code.
Section 3 of the CPC is as follows:
“3. Subordination of Courts:- For the purposes of
this Code, the District Court is subordinate to the High Court,
and every Civil Court of a grade inferior to that of a District
Court and every Court of Small Causes is subordinate to the
High Court and District Court”.
This provision unambiguously shows that every Civil Court
which is inferior in grade is subordinate to the District Court, thereby
the Senior Civil Judges and Junior Civil Judges, who are inferior in
grade to the Court of the District Judge are subordinate. If the
legislature intended the same provision under Section 24 CPC, there
is no need to mention under Section 24(3)(a) CPC that Additional and
Assistant Judges are subordinate to the District Judge. Further-more,
when the statute itself and the section itself are clear or unambiguous,
there is no need to fall back on any other aid to arrive at a decision.
7. As can be seen from section 24 CPC, under Section 24(1)(a)
CPC, the District Court at any stage can 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 in any court subordinate
to it. Therefore, the power that can be exercised by the District Judge
includes the power of transfer from his Court and power of withdrawal
to his Court. It is to be further noted that such a transfer power
exercised by the District Judge should be a transfer to a Court
subordinate to it and competent to try the same. Evidently, the suits or
appeals, which are triable by the District Judge, cannot be transferred
to the inferior Court like Senior Civil Judges or Junior Civil Judges.
There is no denial of the fact that the law has been fairly well settled
that the competency to try a suit includes the territorial and pecuniary
jurisdiction of the Court. Therefore, it follows that the District Judge
cannot transfer a suit, which is triable by him to the other inferior Court.
Consequently, if the intention of the legislature is that the District
Judge has no power to transfer the case to the Additional District
Judge, then there need not have been the provision under Section
24(1) CPC for transfer or withdrawal by him to his Court or from his
Court. Therefore, it is quite clear that the legislature has purposefully
stated under Section 24(3)(a) CPC that the Additional and Assistant
Judges are subordinate to the District judge. It is evidently for the
purpose of including the Additional District Judges or Additional
Judges of any cadre. If such a power is not from District Judge, then
the purpose of Section 24(1)(a) and 24 CPC will be lost.
8. Further-more, Section 24 CPC does not say that Additional and
Assistant Judges are only Senior or Junior judges. If one looks at the
definition of a Judge under Section 2(8) CPC, ‘Judge’ means the
Presiding Officer of a Civil Court. Therefore, the Additional District
Judges, Senior Civil Judges or Junior Civil Judges are the Presiding
Officers of the Court. Therefore, by taking into consideration the
definition of ‘District’ under Section 2(4) CPC, the Principal Civil Court
is the District Court.
Section 2(4) CPC, reads as under:
“(4) “district” means the local limits of the jurisdiction of a
principal Civil Court of original jurisdiction (hereinafter called a
“District Court”), and includes the local limits of the ordinary
original civil jurisdiction of a High Court;”
9. In fact, even under the A.P. Civil Courts Act, 1972, it is the power
of the District Judge to allot the work and thereafter only the Additional
District Judge can dispose of the case with all the powers as a District
Judge. In fact, under the scheme of the A.P. Civil Court Act, the
appointment of the Additional District Judges or any Additional Judges
is only in cases where the requirement of the parties pending in a
District Court is taken into consideration under Section 11 of the A.P.
Civil Courts Act, which reads as follows:
11. Appointment of Additional District Judges:- (1) Where
in the opinion of the High Court, the state of business pending
in a District Court, so requires, the Government may, after
consultation with the High Court, appoint one or more
Additional District Judges to the District Court for such period
as they may deem necessary.
(2) An Additional District Judge so appointed shall
perform all or any of the functions of the District Judge under
this Act or any other law for the time being in force which the
District Judge may assign to him, and in the performance of
those functions, he shall exercise the same powers as the
District Judge”.
10. In fact, the provision under Section 24(3)(a) CPC is an age-old
provision under CPC and was found in the original Act, 1908 and what
was introduced, by way of amendment in 1976 is Section 24(3)(b)
CPC as there was a conflict of decisions with regard to the
interpretation of the proceedings and that has been clarified by
amending CPC in 1976. But, the Code itself originally contains
Section 24(3)(a) CPC and the opinion of the learned Jude in para
No.14 of the above decision is not correct.
11. If the District Judge has no power to entertain the transfer
application, the difficulties of the litigants will be many. For example,
in case from a single or common judgment connected appeals were
filed and they were made over to different District Courts, then if the
District Judge has no power to transfer, every litigant has to come to
the High Court, which definitely might not be the intention of the
legislature. So also, if in a motor accident claim, several claims are
filed from the same accident and they are pending in different
Additional Courts and if the District Judge has no power to transfer the
connected cases and if the claimants are to approach the High Court
only, apart from the expensiveness the other difficulties cannot be
ignored. Therefore, the purpose of power under Section 24 CPC
conferred on the District Judge is for the benefit of the litigants and this
power is consistent with the power to distribute the work by the District
Judge. Even if an application is not filed, the District Judge can suomotu
exercises the power. It is evidently meant for the cause of justice
and not for delays or difficulties to the litigants.
12. In this connection, it is useful to refer to a decision of Punjab
High Court reported in Obrien, M.W. Vs. Haji Abdul Rahman and
another
[2]
(Civil Revision No.2441 of 1911), whereunder it was
specifically held that under Section 24(3) CPC the District Judge has
got power to transfer a case pending before him to the Court of the
Additional District Judge. Further it has been held that-
“the first plea urged for the petitioner for our disposal is
that the Additional District Judge, who passed the decree had no
jurisdiction. The District Judge, who recorded the evidence not
being empowered to transfer a case to the Additional District
Judge, the Court being of co-ordinate jurisdiction, in our opinion,
Section 24(3) of CPC disposes of this objection, which must be
overruled”.
The above decision was followed in In Re: Abdul Malik
of the High Court of Calcutta decided on 24.12.1987
(MANU/WB/0383/1987).
13. Further it will be also useful to refer to a Division Bench of the
Calcutta High Court reported in Ajit Kumar Bhunia Vs. Sm. Kanan
Bala Deyi
[3]
. As per the scheme of Section 3 of the Bengal, Agra and
Assam7-10 Civil Courts Act, the Civil Courts are (1) the court of the
District Judge; (2) the Court of the Additional Judge; (3) the court of the
Subordinate Judge; and (4) the Court of the Munsif.
14. Under Section 8 of the above Act, power was given to appoint
Additional Judges for speedy disposal of the cases when the business
pending before the District Judge requires the aid of the Additional
Judges, which is also akin to Section 11 of the A.P. Civil Courts Act. It
will be useful to extract the observation of the Division Bench in para
No.17 of the judgment, as under:-
“Section 24 of the Code of Civil Procedure
postulates transfer to a competent court, such
competency to be found in and by virtue of some other
statutory provision, notification or otherwise and not
under or by virtue of anything, contained in the said
section. Section 24, itself. Section 8 (2) of the Bengal,
Agra and Assam Civil Courts Act is, however, differently
worded and, under it, the necessary authority or
competency, in the absence of anything to the contrary in
the nature of the particular proceeding or in the particular
statute, under which the same has been taken, is
inherent in the assignment itself And the mere
assignment, as stat-ed hereinbefore, carries with it, in
such cases, the necessary competency or authority,
provided, of course, -- but provided only, -- that the
transferee Judge is an "Additional Judge", -- and, as
seen above, an Additional District Judge is obviously
such "Additional Judge" in the relevant context. Under
Section 24, the District Judge can transfer only to a
competent court, such competency to be found otherwise
and outside the section. Under Section 8(2) of the
Bengal, Agra and Assam Civil Courts Act, however, the
District Judge can transfer to an Additional Judge or an
Additional District Judge and, as noted hereinbefore, in
the absence of anything to the contrary, the Additional
Judge's competency in that behalf can be assumed or
presumed, as it follows from the assignment itself in view
of the terms of the said Section 8 (2) itself. Reliance on
Section 24, therefore, may not solve the problem,
particularly when, in view of the above Supreme Court
pronouncement, it may not be proper to regard the
Additional District Judge as a Judge of the Court of the
District Judge and as possessing, accordingly, coordinate
authority with him.”
15. A reading of the above provision clearly shows that by the fact,
the power of transfer is inherent with the power of assignment of the
work. In fact, in several other decisions, the power of the District Judge
to transfer the cases under Hindu Marriage Act or the Election
Petitions and even the Land Grabbing Cases has been considered
and confirmed. Therefore, in view of the above circumstances, the
power of transfer vested in the District Judge cannot be curtailed by
restricted meaning when the intention and purpose of the same, is for
the convenience of all.
16. Therefore, I hold that the application for transfer has to be moved
before the District Judge, who is competent to entertain and
accordingly with a liberty to the petitioner to file the application before
the Chief Judge, City Civil Court, the transfer case is disposed of and
the Chief Judge shall dispose of the same according to law.
17. With the above observation, the Transfer Civil Miscellaneous
Petition is disposed of at the state of admission. No costs.
Miscellaneous Petitions, if any, pending in this petition shall stand
closed. Registry is directed to communicate the copy of the order to all
the District Judges in the State.
_______________________________
JUSTICE N.R.L. NAGESWARA RAO
Date:31.10.2012
Note: L.R. Copy to be marked.
(B/O)
INL
[1]
AIR 2011 AP 104
[2]
1913 Indian Cases 6
[3]
AIR 1960 CALCUTTA 565
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