1971S26 (PLP)

"It was decided by the High Court of Calcutta, on the 10th of June 1880, that the Superior Court cannot make an order of transfer of a case under section 25 of the Civil Procedure Code, unless the Court from which the transfer is sought to be made has jurisdiction to try it. Having regard to the terms of section 25, their Lordships entirely approve of that decision. Apart, therefore, from any question of estoppel affecting the defendant, there was no competent suit depending at the plaintiff's instance on the 6th of April 1882, when the defendant raised the plea of no jurisdiction in his written statement of defence." It may be mentioned here that section 25 of the old Code was substantially the same as section 24 of the present Code. The Lahore High Court in the case of Haji Faiz Mohd. v. Syed Riaz Hussain followed Ledgard and another v. Bull and dissented from the Allahabad case of Narain Dass Gopal Dass and pointed out that Iqbal Ahmad, J. of the Allahabad High Court was wrong in distinguishing the decision in Ledgard and another v. Bull on the ground that it applied only to the facts of that case. The decision in Legdard v. Bull was rightly pointed out to be of general application and not to be limited to the facts of the particular case out of which the appeal arose. The same view was taken in the case of Allah Bakhsh v. Syed Ali Shah relying on the earlier Division Bench decision. Section 24(l) of the Code of Civil Procedure reads as follows :- "24.-(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to try or dispose of the same ; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn." The view, which prevailed with the Privy Council and all High Courts other than the Allahabad and Nagpur High Courts, is that before a suit, appeal, or other proceeding can be withdrawn from a Court it must be validly pending in that Court, for, if there is no suit, appeal or proceeding so pending, then no question o.` its transfer arises. The word "pending" in this section must, therefore, mean "duly pending". Again, it is the view of these High Courts that where the Court of institution has no jurisdiction over a suit, appeal or proceeding, a transfer thereof to another Court cannot cure the initial defect, nor confer jurisdiction on the Court to which it may be transferred. The argument of the Allahabad High Court is that the failure of the Legislature to use the words "pending in a Court of competent jurisdiction" in section 24 in the same manner as it has used them while referring to the transferee Court, must mean, that it is not necessary that the Court of institution must also have jurisdiction, All that is necessary under section 24 is that the Court to which the case is transferred must have jurisdiction to try the suit or proceeding. In giving this Interpretation the Allahabad High Court has, however, ignored the weight of the authorities which have held that the word "pending" does by itself mean "duly pending" and not pending anyhow. The High Court of Allahabad has also not considered the possibility of the words "competent to try or dispose of the same", used in section 24 in respect of the transferee Court, not referring to territorial jurisdiction at all but only to the pecuniary jurisdiction or to the nature of the suit which the Court has power to try. The Allababad High Court had also, in our opinion, failed to take into account the provisions of subsection (4) of section 24 whereby a special exception appears to have been made in the case of a suit transferred or withdrawn from a Court of Small Causes. In such a case the transferee Court would not, but for the provisions of this subsection, have any jurisdiction to try a small cause Court suit. It appears, therefore, that subsection (4) provides the only exception to the rule that a suit cannot be transferred to a Court not having jurisdiction to try it. The draftsman of this section must also be taken to have been aware of the decisions of the Superior Courts with regard to the provisions of section 25 of the old Code of Civil Procedure and if it had been the intention of the Legislature to accept the interpretation given by the Allahabad High Court in preference to that of the Privy Council the words suggested by lqbal Ahmad, J. in the Allahabad case would have been used in the redrafted section 24 of the present Code. Learned counsel appearing on behalf of the appellant next referred us to section 21 of the Code of Civil Procedure which provides as follows :- "

21. No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice," and argued that since the bar in section 21 only applied to an objection as to the place of suing the other objections on which his transfer application was based should have been considered by the High Court. Section 21 provides one of the two legislative exceptions to the rule that when a Court has no jurisdiction over a litigation, its judgments and orders are mere nullities and can be declared to be void by every Court in which they may be presented. The other exception is provided by section 11 of the Suits Valuation Act, 1887. The object of section 21 is that the Court of first instance should have the opportunity of giving an affirmative finding on the question of jurisdiction in order to avoid a waste of time, labour and money in the event of the higher Court coming to a contrary finding on the point of jurisdiction. It also indicates that it is open to a party to waive this objection as to territorial jurisdiction. The argument of the learned counsel that by implication this section permitted him to abandon his ground against the jurisdic tion of the Court of institution at the High Court is, however, not tenable. Once the objection had been taken it could not be withdrawn without the permission of the Court and in the present case this was the main objection. There was hardly any other serious objection based on the ground of inconvenience. In our opinion, section 21 of the Civil Procedure Code rather seems to suggest that the appropriate action in the present case for the appellant to take would have been to take the objection before the trial Court, particularly, since in order to determine the objection investigation into facts would have been necessary. The allegation of the respondent in the application for the custody of the children was that the appellant has wrongfully removed the minors from his custody. On the other hand, the appellant case in the transfer application was that the children had ever since the divorce been continuously living with her and under her protection. This question had, of necessity, to be decided on evidence and, therefore, the objection should have been taken before the Guardian Judge. From his decision the appellant could have come up to the High Court if she was dissatisfied but C so far as this appeal is concerned it seems to us that it must fail, for, the High Court has acted according to the preponderance of judicial authorities on this point ever since 1880. The law on this point has been well-settled since the decision of the Priv3 Council in the case of Ledgard v. Bull and the principle enunciated therein is clearly of general application. We see no reason to depart from that view. This appeal is, accordingly, dismissed but there will be no order as to costs, as the respondent has not appeared to contest this appeal. The appellant should now enter appearance before the Guardian Judge and take, if so advised, her objection as to jurisdiction there. Appeal dismissed.