Ms. Annu Singh Vs State of U.P. through Additional… — Matrimonial and Divorce | Allahabad HC (2024)

Ms. Annu Singh Vs State of U.P. through Additional… — Matrimonial and Divorce | Allahabad HC (2024)

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the transfer application under Section 24 CPC seeking transfer of Suit No.2649 of 2021 (Avinash Kumar Singh Vs. Annu Singh), a Section 13 Hindu Marriage Act suit before the Principal Judge, Family Court, Lucknow, is maintainable when the suit has already culminated in an ex-parte judgment and decree dated 05.10.2023 and is no longer pending. +1 more

Court's answer

Suit No.2649 of 2021 having culminated in an ex-parte judgment and decree dated 05.10.2023, it is not pending before the Family Court, Lucknow, and a decided case cannot be transferred; therefore the transfer application cannot be allowed.

Ratio / Principle

State of U.P. (opposite party no.1) is neither a necessary nor a proper party to the transfer petition, since the petition under Section 24 C.P.C. seeks transfer of a suit under Section 13 of the Hindu Marriage Act; the learned counsel for the petitioner was directed to delete opposite party no.1 from the array of parties.

Key takeaways

The jurisdiction to set aside an ex-parte decree vests in the court which passed the decree; therefore the application under Order IX, Rule 13 CPC (Misc. Case No.276 of 2024, pending before the Principal Judge, Family Court, Lucknow) cannot be transferred to any other court, and the petitioner rightly did not pray for its transfer.ratio¶¶12
In view of the foregoing discussion, the application under Section 24 of C.P.C. lacks merit and is dismissed without issuing notice to the opposite parties.ratio¶¶13

Detailed headnote1 paragraphs

Transfer Application (Civil) No.169 of 2024 under Section 24 CPC filed by Ms. Annu Singh seeking transfer of Suit No.2649 of 2021 (Avinash Kumar Singh Vs. Annu Singh), a suit under Section 13 of the Hindu Marriage Act, 1955 before the Principal Judge, Family Court, Lucknow, dismissed by the High Court of Judicature at Allahabad, Lucknow Bench (Hon'ble Subhash Vidyarthi, J.) on 23.8.2024 [Neutral Citation 2024:AHC-LKO:57741] without issuing notice to the opposite parties. Held: (i) the suit had already culminated in an ex-parte judgment and decree dated 05.10.2023 and was no longer pending, and a decided case cannot be transferred; (ii) the petitioner's belated application under Order IX, Rule 13 C.P.C. for setting aside the ex-parte decree, pending as Misc. Case No.276 of 2024 before the same Family Court, could not be transferred because the jurisdiction to set aside an ex-parte decree vests in the court which passed the decree; (iii) State of U.P. (opposite party no.1) was neither a necessary nor a proper party and was directed to be deleted from the array of parties.

Neutral Citation No. - 2024:AHC-LKO:57741

Court No. - 19

Case :- TRANSFER APPLICATION (CIVIL) No. - 169 of 2024

Applicant :- Ms. Annu Singh Opposite Party :- State Of U.P. Through Additional Chief Secretary Department Of Home And Anr. Counsel for Applicant :- Santosh Kumar Shukla,Ichchha Singh,Kiran Singh

Hon'ble Subhash Vidyarthi,J.

Heard Ms. Ichchha Singh, the learned counsel for the petitioner and perused the records.

The opposite party no.1 in the present petition is State of U.P., whereas this is an application under Section 24 C.P.C. seeking transfer of a suit under Section 13 of Hindu Marriage Act and therefore the State of U.P. is neither a necessary nor a proper party to the petition.

Accordingly, the learned counsel for the petitioner is directed to delete the opposite party no.1 from the array of parties. Let the necessary amendment be incorporated forthwith.

By means of the instant petition filed under Section 24 of Code of Civil Procedure the petitioner has sought transfer of Suit No.2649 of 2021: Avinash Kumar Singh Vs. Annu Singh, under Section 13 of Hindu Marriage Act in the Court of Principal Judge, Family Court, Lucknow. However, from a perusal of the the documents annexed with the petition it appears that the aforesaid case was filed by the opposite party against the petitioner under Section 13 of Hindu Marriage Act, 1955 and the same has culminated into passing of an ex-parte judgment and decree dated 05.10.2023. Therefore, the Suit

No.2649 of 2021 is not pending before the Family Court, Lucknow and a decided case cannot be transferred.

From a perusal of the record, it appears that the petitioner has filed a belated application under Order IX, Rule 13 C.P.C. for setting aside an ex-parte decree which application has been rejected as Misc. Case No.276 of 2024 and on which notice has been issued to the opposite party on 20.04.2024.

As the case sought to be transferred by means of this application has been already decided and it is no more pending the transfer application cannot be allowed. Further, there is no prayer for transfer of Misc. Case No.276 of 2024, which is pending before the learned Principal judge, Family Court, Lucknow and it appears that the petitioner has rightly not prayed for transfer of misc. case as the jurisdiction to set aside an ex-parte decree vests in the court which has passed the decree. Therefore, the application under Order IX, Rule 13 CPC cannot be transferred to any other court.

In view of the aforesaid discussions, the application under Section 24 of C.P.C. lacks merit and the same is dismissed without issuing notice to the opposite parties.

(Subhash Vidyarthi, J.)

Order Date :- 23.8.2024 Ram.

Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench