- (1.) Heard learned counsel for the applicant and learned counsel for the State respondent. This is a transfer application filed under Section 24 of Civil Procedure Code seeking transfer of a petition under Section 9 of the Hindu Marriage Act instituted by the respondent-husband before the Family Judge, Barabanki. The applicant who is the wife seeks transfer of these proceedings to Bijnor on the ground that she has instituted proceedings under Section 125 of the Criminal Procedure Code against her husband at Bijnor where she is residing. I have heard learned counsel for the applicant.
(2.) It is relevant to note that the case transfer whereof is sought by means of this transfer application, is pending in Barabanki which is within the territorial jurisdiction of the Lucknow Bench of this Court. Therefore, the question which arises for consideration is as to whether this transfer application is maintainable at Allahabad or should be filed before the Lucknow Bench.
(3.) The contention of the learned counsel for the applicant is that the notice of the case sought to be transferred was served upon the applicant at Bijnor. Since, part of the cause of action arose at Bijnor, therefore, this Court is competent to entertain the transfer application. He has also placed reliance upon the judgment of this Court in Special Appeal No.742 of 2012, Jeeut Yadav Vs. Union of India and others and the decision of the Apex Court in the case of Nawal Kishore Sharma Vs. Union of India and others, 2014 AIR(SC) 3607 in support of his contention. For deciding the controversy, reference may be made to Section 24 of the Civil Procedure Code which has been invoked. The said Section reads 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 desire 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to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the Court from which it was withdrawn.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 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." A perusal of the provisions quoted above reveals that Sub-section 1 (b) of Section 24, empowers the High Court to withdraw any suit, appeal or other proceedings pending in any court subordinate to it and transfer the same for trial or disposal to any court subordinate to it and competent to try or dispose of the same. The crucial words therefore are "pending in any court subordinate to it".;