AMIT KHANNA Vs. SUCHI KHANNA

JUDGEMENT

(1.) THIS is an appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 by the husband against the order of the learned single Judge dated 18. 8. 2008 passed in a transfer application under Section 24 C. P. C. transferring divorce petition no. 1020 of 2006 Amit Khanna Vs. Smt. Suchi Khanna from Family Court, Kanpur Nagar to the Family Court at Lakhimpur Khiri. At the very outset the court confronted the learned counsel for the appellant about the maintainability of this special appeal in view of the ratio of Jagdish Kumar Vs. District Judge, Budaun 1998 (1) ARC 305. In the said case the single Judge has laid down that an order passed under Section 24 C. P. C. is neither appealable nor revisable. However, it can be subject to test under supervisory jurisdiction of the High Court provided it has been passed by the District Court and against an order passed by the High Court remedy under Section 25 C. P. C. is available before the Supreme Court. It has further been held that an order relating to transfer of case from one court to another is not a 'judgment' within the meaning of clause 10 of the Letters Patent by which the High Court of Judicature at Allahabad was created. In view of above, a vexed question which arises for consideration in this appeal is whether the order passed by the learned single Judge on a transfer application under Section 24 C. P. C. either allowing or rejecting the same is a 'judgment' within the meaning of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 which can be subjected to an intra court appeal before a Division Bench. We have heard Sri Rahul Jain learned counsel for the appellant and Sri M. L. Maurya learned counsel for the respondent on the above preliminary point of maintainability of this appeal. The Letters Patent dated 17. 3. 1866 which provided for intra court appeal, commonly known as special appeal, was amended and with the enforcement of the United Provinces High Court (Amalgamation) Order, 1948 ceased to have effect for certain limited purposes but the jurisdiction of special appeal was saved by Clause 17 (a) of the Amalgamation Order. Later on, in exercise of powers under Article 225 of the Constitution of India Allahabad High Court Rules, 1952 were framed wherein Chapter VIII Rule 5 was enacted providing for special appeal virtually repeating the provision in this regard as was contained in the Letters Patent as it stood before the enforcement of the Constitution. With the enactment of U. P. High Court (Abolition of Letters Patent Appeals) Act, 1962 the aforesaid Rules were amended abolishing special appeals against certain categories of judgments. Therefore, Chapter VIII Rule 5 of the Rules of the Court is nothing but the repetition of clause 10 of the Letters Patent with certain amendments on account of Letters Patent Appeals Abolition Act, 1962. The said clause 10 of the Letters Patent of the Allahabad High Court is para materia with similar clauses in other Letters Patent. Rule 5 of Chapter VIII of the Allahabad High Court Rules, 1952 as it stand amended as on date is reproduced below: "5. Special Appeal.- An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the Superintendence of the Court and not being an order made in exercise of revisional jurisdiction or in the exercise of criminal jurisdiction (or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award - (a) of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution or (b) of the Government or any officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge. " A perusal of the aforesaid rule reveals that it provides for a remedy of special appeal only against a 'judgment' of a single Judge to a Division Bench and in certain category of cases such an appeal stands excluded. Therefore, to maintain an appeal under this provision two things are necessary. First, it has to be directed against a 'judgment' of single Judge and secondly, as appeal is not an inherent right but only a statutory right, it does not stand excluded either by exclusion clause contained in the aforesaid Rule or any other statute. The first decision on the subject is in the case of (Firm) Khuni Lal-Lachminarain Vs. (Firm) Narain Das- Gopal Das AIR 1935 Allahabad 750. In the said case the learned single Judge of the High Court transferred a suit from the Court of Munsif, Bareilly to the Court of Munsif, Agra. THIS order was taken in appeal wherein a preliminary objection was taken that the appeal does not lie. The Division Bench of the High Court held that the order transferring the case was an order passed in exercise of the discretion vested in the single Judge and cannot be regarded as a 'judgment' within the meaning of clause 10 of the Letters Patent as it did not amount to any decision as to the rights of the parties. Therefore, such a decision passed under Section 24 C. P. C. or even independent to it is not appealable. A similar controversy came up for consideration before the Full Bench of Rangoon High Court in the case of Dayabhai Jiwandass and others Vs. A. M. M. Murugappa Chettyar AIR 1935 Rangoon 267. It was held by the Full Bench that the right of appeal unless given by some statute or any enactment not amounting to judgment is governed by C. P. C. . The High Court in exercise of power under Section 24 C. P. C. has jurisdiction to transfer a case from one court to another but such an order is not appealable. The order passed by the High Court under Section 24 C. P. C. is not a judgment under clause 13 of the Letters Patent of Rangoon which according to us is para materia with clause 10 of the Letters Patent of the Allahabad High Court. The above Full Bench decision of the Rangoon High Court was followed by the three Judges Bench of the Apex Court in the case of Asrumati Debi Vs. Kumar Rupendra Deb Raikot and others AIR 1953 SC 198 and it was held that an order for transfer of a suit is not a 'judgment' within the meaning of clause 15 of Letters Patent (Calcutta) and, therefore, is not appealable. Such an order neither affects the merit of the controversy between the parties to the suit nor does it terminate or dispose of the suit on any ground. Therefore, an order of transfer cannot be placed in the same category as an order rejecting a plaint or one dismissing a suit on a preliminary ground. Thus, it would be clear that interpreting the word 'judgment' as used in different Letters Patent a consistent and unbroken view had been that an order passed on an application for transfer of case under Section 24 C. P. C. is not a 'judgment' so as to make it amenable to an appeal. THIS being the settled legal position since inception, their appears to be no occasion for this Court to deviate from the legal position which had been flourishing for all these years. THIS is in consonance with the well recognised and established principle of "stare decisis" which means better to stick and adhere to the earlier decisions on the subject and not to disturb the legal principle which has been set to rest as law should not be changed only for the reason that the Judge now dealing with it have a different opinion. Of course the principle of "stare decisis" is not absolute and there are recognised exceptions to it. However, the exceptions to this rule are not applicable as there is neither any change in legislation nor it can be said that the society needs a change in this regard. The previous decisions on the subject are not even said to be suffering from the vice of "sub-silentio" or "per-incurium" Learned counsel for the appellant has placed strong reliance upon the latest decision of the Supreme Court in the case of Midnapore Peoples' Coop. Bank Ltd. and others Vs. Chunilal Nanda and others (2006) 5 SCC 399. In this case the Apex Court was dealing with the interpretation of the term 'judgment' as used in clause 15 of the Letters Patent of the Calcutta High Court. The Court placed reliance upon the earlier decision of the Supreme Court in the case of Shah Babulal Khimji Vs. Jayaben D. Kania AIR 1981 SC 1786, wherein it was laid down that the concept of a judgment as defined under Section 2 (2) C. P. C. cannot be physically imported into and used in clause 15 of Letters Patent as the term 'judgment' used in the Letters Patent is much wider and more liberal than that of the C. P. C. It was further held that apart from the judgments falling within the ambit of Section 2 (2) C. P. C. , the orders specified under Order 43 Rule 1 C. P. C. are also judgments and certain other interlocutory orders which possesses the characteristics and trappings of finality in that, which may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary manner would also be covered within the meaning of 'judgment' contemplated by the Letters Patent. Therefore, the definition of the judgment used in Section 2 (2) C. P. C. would have no application to the Letters Patent, Accordingly, the Apex Court in Midnapore Peoples' Coop. Bank Ltd. and others Vs. Chunilal Nanda and others (supra) laid down that interim order/interlocutory orders passed during the pendency of a case, fall under one or the other of the following categories: (i) Orders which finally decide a question or issue in controversy in the main case. (ii) Orders which finally decide an issue which materially and directly affects the final decision in the main case. (iii) Orders which finally decide a collateral issue or question which is not the subject-matter of the main case. (iv) Routine orders which are passed to facilitate the progress of the case till its culmination in the final judgment (v) Orders which may cause some inconvenience or some prejudice to a party, but which do not finally determine the rights and obligations of the parties. It was thereafter held that orders which fall in categories (i), (ii) and (iii) above are judgments for the purposes of filing appeal under Letters Patent whereas the orders falling under categories (iv) and (iv) are not judgments and special appeals against them is not maintainable under Letters Patent. According to learned counsel for the appellant the impugned order of the learned single Judge on the transfer application falls in category (iii) as laid down in the case of Midnapore Peoples' Coop. Bank Ltd. and others (supra) as it decides a collateral issue and, as such, is appealable. According to Law Lexicon the word 'collateral' means "that which is by the side, and not the direct line; that which is additional to or beyond a thing". Similarly, 'collateral issue' is an issue taken up on some matter aside from the general issue in the case. In legal parlance 'collateral' refers to additional or parallel ie. One which is not direct but is only additional or parallel to the main issue. The power of the court to get a particular cause decided by one court or the other court of jurisdiction is in the discretion of the court which does not touches either the main issue or any issue arising by its side or in addition to it. Therefore, to our opinion the collateral issue refers to an additional point of dispute concerning the subject matter of the case concerned. Whether the case is decided by the court 'x' or court 'y' having jurisdiction is not a collateral issue concerning the subject matter of the case. Such an order of transfer or refusal is only a discretionary order which is passed keeping in mind the convenience of the parties to facilitate the progress and decision of the case on merits. It does not in any manner affects the substantive rights of the parties concerning, the subject matter or the issues involved in the case. A litigant has no right to insist for trial of his/her case by a particular court of his choice or convenience. Therefore, even though such an order may cause some inconvenience or prejudice to a party it would not fall in category (iii) above so as to make it appealable. It would only be an order under category (iv) or (v) against which Letters Patent appeal has been held to be excluded. It is said the difference between a flower and a weed is 'judgment'. It means a decision taken by an independent mind in making a distinction between a flower and a weed alone qualify to be a judgment. In transferring or in refusing to transfer a suit from one court to another there is surely no decision which is taken by the Judge/court. Such an order is made only to facilitate the final decision but it in itself is not a decision at all to be called a judgment. There is another way of considering the above aspect of the matter. The special appeal is maintainable before the Division Bench against the against the judgment/order of the learned single Judge only where such a right has not been taken away expressly or by necessary implication by the appropriate legislation. A constitution Bench of the Supreme Court in South Asia Industries (P) Ltd. Vs. S. B. Sarup Singh and others AIR 1965 SC 1442 while considering clauses 10 and 11 of the Letters Patent (Lahore) observed as under: "the following legal position emerges from the said discussion: A statute may give a right of appeal from an order of a Tribunal or a Court to the High Court without any limitation thereon. The appeal to the High Court will be regulated by the practice and procedure obtaining in the High Court. Under the rules made by the High Court in exercise of the powers conferred on it under S. 108 of the Government of India Act, 1915, an appeal under S. 39 of the Act will be heard by a Single Judge. Any judgment made by the Single Judge in the said appeal will, under cl. 10 of the Letters Patent, be subject to an appeal to that Court. If the order made by a Single Judge is a judgment and if the appropriate legislature has, expressly or by necessary implication, not taken away the right of appeal, the conclusion is inevitable that an appeal shall lie from the judgment of a single Judge under cl. 10 of the Letters Patent to the High Court. It follows that, if the Act had not taken away the Letters Patent Appeal, an appeal shall certainly lie from the judgment of the Single Judge to the High Court. " The Apex Court in the aforesaid case has categorically laid down that if the twin requirement of the order of the learned Single Judge i. e. being a judgment and if the appropriate legislature has not expressly or by necessary implication taken away the right of appeal is fulfilled, an appeal shall lie from a judgment of the Single Judge under Clause 10 of the Letters Patent to the High Court. Thus, it is clear that unless special appeal is excluded/abolished by any competent Act, special appeal can be filed against the order/judgment of the Single Judge in only those categories of orders/judgments which have not been excluded or abolished. Ordinarily, following categories of judgments/orders stand excluded from the purview of the special appeal under Chapter VIII Rule 5 of the Rules of the Court, 1952 as has been held by a Division Bench of this Court in Vajra Yojna Seed Farm, Kalyanpur (M/s,) and others Vs. Presiding Officer, Labour Court II, U. P. Kanpur and another (2003) 1 UPLBEC 496: (i) Judgement of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court. (ii) Judgment of one Judge in the exercise of revisional jurisdiction. (iii) Judgment of one Judge made in the exercise of its power of Superintendence. (iv) Judgment of one Judge made in the exercise of criminal jurisdiction. (v) Judgment or order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect of any of the matters enumerated in State List or Concurrent List. (vi) Judgment or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act. However, the above categories are only illustrative in nature and do not lay down exhaustively the categories which have been excluded. In this connection one cannot lose sight of Section 105 C. P. C. which is reproduced herein below: "105. Other orders.- (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. " According to above provision no appeal is maintainable from any order of the Court passed in exercise of its original or appellate jurisdiction, except against orders which have been made appealable under Section 104 C. P. C. Undisputedly, an order passed on an application under Section 24 C. P. C. has not been made appealable under any provision of the C. P. C. including Section 104 C. P. C. Right to appeal is not inherent unless it is specifically provided by the statute. Since the Code of Civil Procedure does not specifically provide for an appeal against an order passed on a transfer application and at the same time by implication excludes an appeal against such an order by virtue of Section 105 C. P. C. , therefore, merely for the reason Rule 5 Chapter VIII of the Rules of the Court, 1952 is silent in this regard it would not confer jurisdiction of appeal. If any contrary interpretation is made and the appeal is held to be maintainable it would amount to conferring jurisdiction of appeal which otherwise is not specifically provided but is expressly as well as by implication excluded by Section 105 C. P. C. Thus, in the above scenario the right of special appeal as contemplated by Rule 5 Chapter VIII of the Rules of the Court, even though the same is independent to the provisions of C. P. C. , against the order of the single judge passed on a transfer application under Section 24 C. P. C. stands impliedly excluded. It is for this reason that a tradition in this Court has always been not to file an appeal against an order either allowing or rejecting an application under Section 24 C. P. C. passed by the District Judge or a Single Judge of this Court. Where an order is passed under Section 24 C. P. C. by the District Judge the aggrieved party either moves a fresh application or challenges before the High Court in exercise of supervisory powers under Article 227 of the Constitution of India. Similarly, where an order is passed by the learned Single Judge under Section 24 C. P. C. either a fresh application is moved before the Supreme Court under Section 25 C. P. C. or the matter is taken up under Article 136 of the Constitution of India. In view of aforesaid facts and circumstances, we are of the considered opinion that neither the order passed by the Single Judge on application under Section 24 C. P. C. qualifies to be a 'judgment' for the purposes of maintaining an appeal under Chapter VIII Rule 5 of the Rules of the Court nor an appeal has been provided against it and in fact stands excluded by virtue of Section 105 C. P. C. Therefore, this appeal is held to be not maintainable and is liable to be dismissed. Besides the above, the order impugned to transfer the divorce petition has been passed on the agreement of the parties and as such is beyond challenge. The submission that the agreement was to transfer it to some other place and not to Lakhimpur Kheri can not be appreciated when an application to this effect has also been rejected by the learned single Judge. Accordingly, appeal fails and is dismissed. No order as to costs. .