FATEMA BEGAM Vs. IMDAD ALI

JUDGEMENT

(1.) THIS is an application for revision of an order of the District Judge of Agra transferring a suit from the Court of the Munsif of Agra to that of the Subordinate Judge. It appears that the present applicant Musammat Fatema Begam brought a suit in the court of the Munsif of Agra against Imdad Ali for his ejectment from a house. That suit was contested and evidence was adduced by both parties before the Munsif. On the 5th of March 1913 the Munsif proceeded to write his judgment. While he was doing so. an application was made to him by the defend-ant asking him not to proceed with the decision of the suit as be, the defendant, intended to apply to the District Judge for a transfer of the case. THIS application apparently was not granted, but the defendant went to the Court of the District Judge the same day and filed an application for transfer on the ground that a suit, relating to the same property instituted by a third party, namely, the Arya Pratinidhi Sabha was pending in the Subordinate Judge s Court. The District Judge ordered the record to be sent for and notice to issue to Musammat Fatema Begam, but it seems that he did so after hearing the Pleader for the applicant and a Pleader who had appeared in the Munsif s Court for Fatema Begam but who did not appear as Pleader in the District Judge s Court in the matter of the transfer but happened to be present. When the record came, the learned District Judge appears to have, considered the matter and on the 10th of March he ordered the transfer of the case. Section 24 of the Civil Procedure Code provides that when an application is made by any of the parties for the transfer of a case, the Court is to issue a notice and after hearing such of the parties as desire to be heard, it may make an order for transfer. In the present case the learned Judge, as stated above, made an order for the issue of notice. He now reports that no notice was issued and no date was fixed for bearing the plaintiff whose case was sought to be transferred from the Munsif s Court. In the explanation which the learned District Judge had furnished upon a reference made by this Court, he does not say that after examining the record he made an order of transfer of his own motion. Of course he was competent to transfer a case from one subordinate Court to another of his own motion and in such a case he was not bound to issue notice. But where upon an application of one of the parties (as in the present case) he ordered a transfer, he was bound to issue notice and hear the parties before he made any order of transfer. The learned Judge, therefore, in ordering the transfer before issuing the notice which he had ordered to be issued and before hearing the other side, acted without jurisdiction and his order must be set aside. I accordingly, set aside the order of transfer and send back the case to the learned District Judge with directions to take up the application for transfer and issue notice to the other side fixing a date for hearing and on the date so fixed, to hear the partier, if any of them desire to be heard, and then to pass such orders as he may think fit.