Allahabad High Court
Brijesh Kumar Gupta vs Smt. Poonam Gupta on
17/7/2002
JUDGMENT
A.K. Yog, J.
1. Brijesh Kumar Gupta; applicant before this Court, has filed the
present Transfer Application under Sections 23(3) and 24 of the Code of
Civil Procedure read with Section 21A(b) of Hindu Marriage Act, praying
for transferring Divorce Petition No. 367 of 2001, Smt. Poonam Gupta v.
Brijesh Gupta, under Sections 13 and 27, Hindu Marriage Act pending in
the Court of Principal Judge, Family Court, Meerut to the Court of
VIIth Additional District Judge, Gwalior, where Matrimonial Petition
No. 2A of 2000, Brijesh Kumar Gupta v. Smt Poonam Gupta, under Section
12. Hindu Marriage Act (to declare the marriage between the parties as
void) is said to be already pending since before the filing of the
aforementioned divorce petition by the wife at Meerut.
2. In para 10 of the affidavit, filed in support of the transfer
application, the applicant, Brijesh Kumar Gupta has admitted that he
had received notice of the said Matrimonial Divorce Petition No. 367 of
2001 (Annexure-2 to the affidavit) to appear in the case on July 30,
2001 when an attempt for reconciliation was made before the Family
Court, Meerut. He also admitted that Family Court, Meerut, fixed
5.7.2002 vide its order dated 14.5.2002 and that the said Court has
rejected his application for stay of the proceedings not finding favour
with the prayer made by the said applicant (the husband) vide
application (paper No. 18Ga) for transferring the matrimonial divorce
petition at Meerut to Gwalior.
3. From the facts as stated in the affidavit in support of the transfer
application, it is evident that husband-applicant has already submitted
to the transfer of the Family Court, Meerut. by joining proceedings.
4. Heard learned counsel for the husband-applicant, Sri Vijay Prakash,
Advocate at length and perused the record.
5. The learned counsel for the husband-applicant contends that the
court below (Family Court, Meerut) has committed illegality in
rejecting application filed by the husband applicant for transferring
Divorce Petition No. 367 of 2001 to the Court at Gwalior where
Matrimony Petition No. 2A of 2000 (Annexure-1 to the affidavit), filed
earlier in point of time, is already pending.
6. Copy of the application (Paper No. 18Ga) dated 14.5.2002 has been
filed as Annexure-4 to the affidavit wherein the prayer is to the
effect that proceedings of Matrimonial Petition No. 367 of 2001, Smt.
Poonam Gupta D. Brijesh Kumar Gupta, be stayed and transferred to the
Court of VIIth Additional District Judge, Gwalior, so that both the
cases may be heard together.
7. By means of the order dated 31.5.2002, the Family Court, Meerut, has
held, while rejecting the said application (18Ga), that the said Court
was not competent to transfer the case as prayed and it was open for
the said husband (opposite party in the Meerut case) to seek desired
relief by approaching the Hon’ble High Court, Allahabad/Hon’ble Supreme
Court for the desired relief.
8. The learned counsel for the husband-applicant, in support of his
prayer in the transfer application, referred to the provision of
Section 21A Hindu Marriage Act, 1955 (as amended up to date) called the
Act.
Section 21A of the Act is being reproduced :
“21A. (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 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 10 or for a decree of divorce under Section
13 on any ground, whether in the same District Court or 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 Subsection (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 of 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 if it had been empowered so to do under the said Code.”
9. Learned counsel for the applicant submits that since a petition (for
declaring marriage between parties void) has been presented prior in
time at Gwalior under Section 12, Hindu Marriage Act, the subsequent
Matrimonial Divorce petition at Meerut filed by the wife could not
proceed and it was incumbent upon the Meerut Court to stay proceedings
before it and transfer the said petition to Gwalior. In support of the
above argument, he has referred to the expression ‘where in the same
State or in a different State’. According to the learned counsel for
the applicant, Section 21A of the Act provides where conditions
contemplated under Subsection (1) Clauses (a) and (b) are fulfilled and
in that situation, according to him, the petitions have to be dealt
with as specified in Sub-section (2) and since all the conditions
contained under Section 21A(1) Clauses (a) and (b) of the Act are
specified in the present case, the court below had no choice/option but
to resort to Sub-section (2) of Section 21A of the Act. Referring to
Sub-section (2) he referred to Clause (b) and Sub-section (3) of
Section 21A of the Act, it is argued that under Sub-section (3) of
Section 21A, Meerut Court should have transferred the case before it to
the Gwalior Court.
10. Learned counsel for the husband-applicant, further referred to
Sections 22 and 23, Code of Civil Procedure which are reproduced :
“22. Where a suit may be instituted in any one of two or more Courts
and is instituted in one of such Courts, any defendant, after notice
to the other parties, may, at the earliest possible opportunity and
in all cases where issues are settled at or before such settlement,
apply to have the suit transferred to another Court, and the Court
to which such application is made, after considering the objections
of the other parties (if any), shall determine in which of the
several Courts having jurisdiction the suit shall proceed.”
“23. (1) Where the several Courts having jurisdiction are
subordinate to the same appellate court, an application under
Section 22 shall be made to the appellate court.
(2) Where such Courts are subordinate to different appellate courts
but to the same High Court, the application shall be made to the
said High Court.
(3) Where such Courts are subordinate to different High Courts, the
application shall be made to the High Court within the local limits
of whose jurisdiction the Court in which the suit is brought is
situate.
11. A bare reading of Sections 22 and 23, Code of Civil Procedure, go
to show that these provisions deal with an entirely different
contingency. Section 23 is complementary provision to Section 22, Code
of Civil Procedure, as is evident from the reading of Sub-section (1)
of Section 23. Further Sections 22 and 23, Code of Civil Procedure,
come into play only in a situation when a suit may be instituted in any
one of two or more Courts and is instituted in one of such Courts, then
Section 22 confers a right upon any defendant to file an application
(in the Court specified under Section 23 Code of Civil Procedure) to
have the suit transferred to some such another Court, subject to
fulfilment of other conditions contained under Section 22 i.e., said
application is being filed at the earliest possible opportunity and in
all cases where issues are settled at or before such settlement. If
such an application is being filed by the defendant, the Court may,
after considering the objections of the other parties, if any, shall
determine in which of the several Courts having jurisdiction, the suit
shall proceed; if at all be transferred from that Court to another
Court (considering the attending circumstances of a particular case).
12. Sub-section (3) of Section 23, Code of Civil Procedure contemplates
that where two or more Courts where, suit could be instituted, are
subordinate to different High Courts, the application shall be made to
the High Court within the local limits of whose jurisdiction the Court
in which the suit is brought is situate.
13. Thus, it will be seen that Sections 22 and 23, Code of Civil
Procedure deals with a situation where a suit can be filed in two or
more Courts but it has been instituted in any one or more Courts, then
on the objection of defendant, it can be directed to proceed in another
such Court. These provisions do not at all deal with a situation where
two different suits have been instituted, in the Courts, which are
subordinate to different High Courts. In fact, where two suits are
instituted which are within the territorial jurisdiction of two
different High Courts, the relevant provisions, which shall come in
play, are Sections 24 and 25 of the Code of Civil Procedure which are
also reproduced for convenience :
“(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) re-transfer 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 (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 Court;
(b) “proceeding” includes a proceeding for the execution of a decree
or order.
(4) The Court trying any suit transferred under this section from a
Court which has no Jurisdiction to try it.
25. (1) On the application of a party, and after notice to the
parties, and after hearing such of them as desire to be heard, the
Supreme Court may, at any stage, if satisfied that an order under
this section is expedient for the ends of justice, direct that any
suit, appeal or other proceeding 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 is
transferred shall, subject to any special directions in the order of
transfer, either retry 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 opinion that the application was frivolous or
vexatious, order the applicant to pay by way of compensation to any
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.”
14. It is, therefore, clear that in a situation where two suits have
been instituted before different Courts within the territorial
jurisdiction of two different High Courts, the relevant provision for
seeking transfer is Section 25, Code of Civil Procedure.
15. The aforesaid conclusion is clearly borne out from the bare reading
of Sub-section (1) of Section 25, Code of Civil Procedure.
16. Coming to the submission of the learned counsel for the
husband-applicant that Hindu Marriage Act contains special provision
and confers power to transfer petition in certain cases–including a
case in a situation existing in the present case. Section 21A of the
Act, it will suffice to mention that submission is itself bereft of
merit as it has been made ignoring the provisions of Sub-section (3) of
Section 21A of the Act.
17. Sub-section (3) of the Section 21A of the Act provides that in a
case where Clause (b) of Sub-section (2) applies, the Court or the
Government, as the case may be, competent under Code of Civil
Procedure, 1908, can entertain an application to transfer any suit or
proceeding from the District Court in which later petition has been
presented to the District Court in which earlier petition is pqnding.
18. No provision of the clause under Section 21A of the Act confers
jurisdiction upon a District Court or upon the High Court to which such
district Court is subordinate, to transfer a petition to another
District Court which is pending in the territorial jurisdiction of that
State.
19. Submission of the learned counsel for the husband-applicant is
completely devoid of merit as is evident from the reading of
aforequoted Sections of the Act and the Code of Civil Procedure.
20. Learned counsel for the husband applicant has placed reliance upon
the case of Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry, 1981
AWC 345 : AIR 1981 SC 1143 :
“I have carefully gone through the aforementioned decision.
In para 3 of the said decision their lordships of the Apex Court
noted : “…..In the first place it is difficult to accept the
contention that the substantive provision contained in Section 25,
C.P.C. is excluded by reason of Section 21 of Hindu Marriage Act,
1955….. In terms Section 21 does not make any distinction between
procedural and substantive provisions of C.P.C. and all that it
provides is that the Code as far as may be shall apply to all the
proceedings under the Act…..”
In para 4 their Lordships observed : “So far as Section 21A of Hindu
Marriage Act is concerned since the marginal note of that section
itself makes it clear that it deals with power to transfer petitions
and direct their Joint or consolidated trial “in certain cases” and
is not exhaustive….. This provision in terms deals with the power
of the Government or the Court on whom powers of transfer have been
conferred by the C.P.C. as it then stood, that is to say, old
Sections 24 and 25, C.P.C. It does not deal with the present Section
25 which has been substituted by an amendment which has come into
force with effect from February 1, 1977 (Section 11 of the Amendment
Act 104 of 1976). By the amendment very wide and plenary power has
been conferred on this Court for the first time to transfer any
suit, appeal or other proceedings from one High Court to another
High Court or from one Civil Court in one State to another Civil
Court in any other State. Such wide and plenary power on this Court
could not have been in the contemplation of Parliament at the time
enactment of Section 21A of the Hindu Marriage Act, 1955. It is,
therefore, difficult to accept the contention that Section 21A of
Hindu Marriage Act excludes the power of transfer conferred upon
this Court by the present Section 25 of C.P.C. in relation to
proceedings under that Act.”
Again in para 5 Apex Court held :
“Such a view, in our opinion, is not correct. As stated earlier, in
the matter of transfer of petitions for a consolidated hearing
thereof Section 21A cannot be regarded as exhaustive for the
marginal note clearly suggests that the Section deals with power to
transfer petitions and direct their joint and consolidated trial “in
certain cases”. Moreover, it will invariably be expedient to have a
joint or consolidated hearing or trial by one and the same Court of
a husband’s petition for restitution of conjugal rights on the
ground that the wife has withdrawn from his society without
reasonable excuse under Section 9 of the Act and the wife’s petition
for judicial separation against her husband on ground of cruelty
under Section 10 of the Act in order to avoid conflicting decisions
being rendered by two different Courts. In such a situation resort
will have to be had to the powers under Sections 23 to25 of the
Civil Procedure Code for directing transfer of the petitions for a
consolidated hearing. Reading Section 21A in the manner done by the
Nagpur Bench which leads to anomalous results has to be avoided.”
Hon’ble Amrendra Nath Singh concurring with the view expressed by
Hon’ble V.D. Tulzapurkar in paras 3, 4 and 5 reproduced above in paras
8 and 9 of the judgment, noted as follows :
“In my opinion, this argument of the learned counsel for the
respondent husband is without any substance. I have earlier set out
Section 25 of the Code of Civil Procedure and I have pointed out
that an analysis of the Section makes it abundantly clear that for
the ends of Justice, wide power and Jurisdiction have been conferred
on this Court in the matters of transfer of any suit, appeal or
proceeding from any High Court or other Civil Court in one State to
a High Court or other Civil Court in any other State. A suit or a
proceeding for divorce under the Hindu Marriage Act in a Civil Court
is necessarily a suit or proceeding and must on a plain reading of
Section 25(1) of the Code of Civil Procedure be held to come under
Section 25(1) of the Code, as the said section speaks of any suit,
appeal or other proceeding. This Court must necessarily enjoy the
power and Jurisdiction under the said provisions of transferring
such a suit or proceeding for the ends of justice, unless the power
and jurisdiction of this Court are specifically taken away by any
statute. If the jurisdiction clearly conferred on any Court has to
be ousted, the exclusion of such jurisdiction must be made in clear
and unequivocal terms. Section 21 of the Hindu Marriage Act does not
deal with the question of jurisdiction of any Court. As no procedure
with regard to the proceedings under the Hindu Marriage Act has been
laid down in the said Act, Section 21 of the Act only provides that
‘all proceedings under this Act shall be regulated as far as may be
by the Code of Civil Procedure’.
Section 21 of the Hindu Marriage Act cannot be construed to exclude
the jurisdiction conferred on this Court under Section 25 of the
Code of Civil Procedure. It does not become necessary in the instant
case to decide whether the provision in relation to jurisdiction of
this Court contained in Section 25 of the Code of Civil Procedure is
one of substantive law or it belongs to the domain of procedure.
Even if I accept the argument of the learned counsel for the
respondent that Section 25 does not form any part of the procedural
law and is a part of the substantive law, I am of the opinion that
jurisdiction conferred on this Court by Section 25 of the Code of
Civil Procedure, is not. In any way, affected by Section 21 of the
Hindu Marriage Act which, as I have already noted, only provides
that ‘all proceedings under the Hindu Marriage Act shall be
regulated as far as may be by the Code of Civil Procedure, 1908’.
9. Section 21A of the Hindu Marriage Act, in my opinion, has indeed
no bearing on the question of Jurisdiction conferred on this Court
under Section 25 of the Code of Civil Procedure. Section 21A of the
Hindu Marriage Act makes provisions for transfer of petitions
specified in the said section and for hearing and disposal of such
petitions together by the District Court in which the earlier
petition has been presented. Such power has been conferred on the
Court or the Government. Section 21A has no application to the case
of transfer of any suit or proceeding from one State to another. As
I have earlier noted, very wide power and jurisdiction have been
conferred on this Court in the interest of justice for transferring
any appeal, suit or proceeding from one State to another under
Section 25 of the Code of Civil Procedure. In the instant case, the
petitioner has applied for transfer of the suit pending in the
district at Eluru in the State of Andhra Pradesh to the appropriate
Court at Udaipur in the State of Rajasthan. I am, therefore, of the
opinion that this Court enjoys the power and jurisdiction to
entertain this application under Section 25 of the Code of Civil
Procedure and Sections 21 and 21A of the Hindu Marriage Act do not,
in any way, exclude affect or curtail the power conferred on this
Court under Section 25 of the Code of Civil Procedure. I may
incidentally add that the present Section 25 in the Code of Civil
Procedure came into force after Sections 21 and 21A have been
incorporated in the Hindu Marriage Act, 1955.”
(Emphasis laid down by me)
The aforesaid decision in the case of G. Vijayalakshmi (supra), negatives the contention of the learned counsel for the husband-applicant before this Court.
21. In view of the above, the present transfer application seeking transfer of the case from Meerut (State of U. P.) to Gwalior (State of M. P.) is not cognizable by this Court.
22. Transfer application is, accordingly, rejected in limine as not cognizable.
23. No order as to costs.