D.K. SETH, J.

This is an application under Section 24 of Code of Civil Proce dure (hereinafter called as the Code) for transfer of three suits pending before three different courts to one court. In effect, this appears to be an application for consolida tion of three cases or in other words simul taneous hearing of all the cases.

2. In order to appreciate the situa tion, it is necessary to refer to certain facts as hereinafter.

3. Suit No. 246 of 1974 was instituted before the learned Munsif, Budaun by Syed Aley Navi, and Room Singh as plain tiffs against Shri Ram Bhasin, Shri Ajab Lal and Shri Kuvarn Husain as defen dants. The said suit was pending before the II Additional Munsif, Budaun. In the said suit an injunction was prayed for restraining defendants from creating any obstruction in the possession of the plain tiffs in the suit property and from remov ing any construction therefrom. The suit property was described as the portion in red in the attached plan or map marked I, J, K and L. The other suit being SCC Suit No. 4 of 1986 was pending before the SCC Court presided over by the learned Civil Judge, Budaun. The said suit was filed by Room Singh, Shri Hakim Husain, Smt. Avrok, Smt. Feroz and Shri Aley Navi as plaintiffs against Rakesh Bhasin, Suresh Bhasin, Smt. Ram Sanehi, Jagdish Kumar and Abhay Lal as defendants. In this suit, prayers for ejectment, arrears of rent and damages for illegal occupation were made. The suit property as described seems to differ from the suit property of suit No. 1246 of 1974. The third suit has been filed by Rakesh Bhasin, Smt. Ram Sanehi and Jagdish Kumar as plaintiffs against the Union of India, the Secretary, Ministry of Commerce and the Custodian Enemy Property. The said suit being suit No. 4 of 1986 pending before the learned Civil Judge, Badaun is for mandatory injunc tion directing the respondents to execute the sale deed in favour of the plaintiffs. The suit property described as House No. E/10/70 which appears to be different from the suit property involved in other two suits.

4. In the counter-affidavit a com parative chart has been appended point ing out the difference in respect of the suit property, parties and reliefs claimed in the said three suits. A perusal thereof clearly indicates that the suit properties are not the same or identical. The reliefs sought for are altogether different. The parties are also not same. It has been mentioned that the hearing of the suit No. 246 of 1974 is over and the judgment has since been reserved. This fact has not been disputed by the learned Counsel for the applicant. Learned Counsel for the applicant has also not disputed the chart appended to the counter-affidavit. No rejoinder af fidavit appears to have been filed against the counter-affidavit. Learned Counsel for the applicant, on the other hand, con tends that the suit property being same and the issues involved being common, all the suits should be transferred to the one and the same court. However, he has fairly concedes that an application under Sec tion 24 of the Code and filed for such purpose before the learned District Judge who by an order dated 8-4-1993 dismissed the said application for transfer but he has not challenged the said order, instead he has filed fresh application before this court.

5. Learned Counsel for the opposite party, on the other hand, contends that apart from the merit of the case, the ap plication for transfer having been dis missed by a reasoned order by the learned District Judge, the applicant should have challenged the said order of rejection of the earlier application under Section 24 of the Code by the learned District Judge, the present application under Section 24 of the Code is an abuse of process of law and is not maintainable. He also contends that the SCC suit cannot be transferred to any court which do not have the power of Small Causes Court.

6. After having heard learned Coun sel for the parties, it appears that the ap plicant had made a similar application under Section 24 of the Code before the learned District Judge. The same was registered as Misc. Case No. 26 of 1993 and was disposed of on 8-4-1993 by dis missing the application for transfer. A copy of the said order is Annexure-8 to the present application. Admittedly, the said order is not appealable.

7. The contention of the Counsel for the opposite party that a second applica tion under Section 24 of the Code on the self same ground after its rejection is not maintainable is disputed by the Counsel for the applicant. From the arguments ad vanced by the respective Counsel on this point, the following questions are formu lated : -

(1) Whether the order rejecting or allowing an application under Section 24 of the Code is a case decided within the meaning of Section 115 of the Code and is thereby open to revision or not

(2) Whether the jurisdiction of the High Court and the District Court under Section 24 of the Code is concurrent to the extent that after a decision by one Court on such application a second ap plication on the selfsame cause of action to the other court is competent

8. For the sake of convenience, the first question may be attended first. The question as to whether an order of transfer under clause 13 of the letters patent is a judgment within the meaning of clause 15 of the Letters Patent and thereby appeal able is settled by the Apex Court in the case ofasrumati Debi v. Kumar Rupendra Deb Raikot and others, AIR 1953 SC 198 [LQ/SC/1953/23] . In the said case it was held that such an order is not a judgment and as such is not appealable. The test for deciding an order to be a judgment as held in Asrumati Debi (supra) was referred to by the Apex Court in the case of Shah Babulal Khimji v. Jayaben D. Kania and another, AIR 1981 SC 1786 [LQ/SC/1981/332] . This decision had referred to the other decisions of the Apex Court dealing with the question as to what is a "judgment". The cases so referred are the cases of Shankarlal Aggarwala v. Shankarlal Poddar, AIR 1965 SC 507 [LQ/SC/1963/19] ; Radhey Shyam v. Shyam Behari, AIR 1971 SC 2337 [LQ/SC/1970/299] ; Shhnti Kumar R. Canji v. Home In surance to of New York, AIR 1974 SC 1719 [LQ/SC/1974/203] .

These decisions have laid down the principle or test for determining whether an order is a judgments. But those prin ciple or test will not help us on this ques tion. Inasmuch as none of this decisions deal with the question of transfer. Thus we are left, for this purpose, with the ratio decidendi in the case of Asrumati Devi (supra). If it is accepted that there is no difference in the concept and meaning of the expression judgment in clause 15 of the Letters Patent with that of "case decided" occurring in Section 115 of the Code, then the ratio decidendi in the case of Asrumati Devi (supra) would be the last word and then the point is to be taken as settled.

9, Now, therefore, let us examine and compare the two expressions. In order to appreciate the, situation it would be help ful to refer to the relevant provisions with which we are now concerned.

Clause 13 of the Letters Patent provides that:

"13. Extraordinary original civil jurisdic tion.-And we do further ordain that the said High Court of Judicature at (Madras), (Bombay), Fort William in Bengal shall have power to remove, and to try and determine, as a Court of extraordinary original jurisdiction, any suit being or falling within the jurisdiction of any Court, whether within or without the (Presiden cy of Madras), (Bombay), Bengal Division of the Presidency of Fort William, subject to its superintendence, when the said High Court shall think proper to do so, either on the agree ment of the parties to that effect, or for purpose of justice, the reasons for so doing being recorded on the said High Court. "

Section 24 of Code of Civil Procedure provides that:-

"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 desired 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

(1) 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 dis posal 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 trans ferred under this section from a Court which has no jurisdiction to try it. "

Clause 15 of the Letters Patent provides that:-

"15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction.-And we do further ordain that an appeal shall lie to the said High Court of Judica ture at (Madras), (Bombay), For William in Bengal from the judgment (not being a judg ment passed in the exercise of appellate jurisdic tion in respect of a decree or order made in the exercise of appellate jurisdiction by a Court sub ject to the superintendence of the said High Court and not being an order made in the exer cise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the

provisions of Section 107 of the Government of India Act, or in the exercise of criminal jurisdic tion of one Judge of the said High Court or one Judge of any Division Court, pursuant to Sec tion 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108 of the Government of India Act, made (on or after the first day of February 1929) in the exercise of appellate juris diction in respect of a decree or order made in the

exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us, Our heirs or successors in our or Their Privy Council, as hereinafter provided. "

Section 115 of the Code provides that:-

"revision.- (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,

the High Court may make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where-

(a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding, or

(b) the order, if allowed to stand would occasion of failure of justice or cause ir reparable injury to the party against whom it was made.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. "

10. The above provisions reflects two things. First there are some difference in the scope and ambit of the provisions of clause 13 on the one hand and Section 24 of the Code on the other in regard to the point with which we are now concerned. Secondly the difference is apparent be tween the two provisions of clause 15 Let ters Patent and Section 115 of the Code so far as our present purpose is concerned. So far as the second difference is con cerned, it may be noted that the subject-matter involved in clause 15 is that an appeal shall lie ,,. . . . . . . . from the judgment of the kind which are not excepted by the express provisions incorporated in it. Whereas in Section 115 it is a case. . . . . . decided. . . . . . . . in which no appeal lies. . . . . . . . . in course of a suit or other proceedings the records of which may be called for by the High Court. While interpreting the expression judgment occurring in clause 15 the basis that weighed with the court was the competence of appeal. If every order is included then there would be ap peal at every stage. A situation which will make, the carriage of a proceeding im paired at every step. This was one of the consideration, which engaged the courts concern. On the other hand Section 115 so far as our present purpose is concerned deals with an order that satisfies 3 (three) conditions viz. : (1) an order from which no appeal is permitted, (2) and which is passed in exercise or failure to exercise or illegal or irregular exercise of jurisdiction and (3) that it was passed in the course of a suit or other proceedings. Unless all these three conditions are fulfilled an order will not be revisable under Section 115 of the Code. Sections 96 and 100 of the Code provides appeal against Decrees and not Orders. Whereas Section 104 thereof con templates appeal against specified orders. Now judgment defined in Section 2 (9) of the Code "means the statement given by the Judge on the grounds of a decree or order. " Order as defined in Section 2 (14) of the Code "means the formal expression of any decision of a Civil Court which is not a decree. " Therefore, we see that clause 15 of the Letters Patent encompasses judgment whereas Section 115 of the Code encompasses decisions. Inasmuch as the expression "case. . . . . . . decided" means a decision in a case, the formal expression whereof is given in the shape of an order which is appealable.

11. The legislature has used different expression in the two provisions. Legisla ture never waste words. If it had the inten tion of meaning the same thing in that event it would have used same expression. The difference in expression has to be in terpreted in relation to the context. While in clause 15 of the Letters Patent the con text is of appeal, in that of Section 115 of the Code is of revision. Then again Section 115 of the Code deals with decisions in course of the suit or other proceedings, whereas clause 15 of the Letters Patent is silent in that respect. Following the ratio laid down in the case of Shah Babulal Khimji (supra) we can safely conclude that such judgment Should be a decision in volving the controversy involved or at issue in the suit between the parties. As has been laid in the case of M. B. Sarkar and Sons v. Bowell, AIR 1956 Cal 630 [LQ/CalHC/1956/105] , it is the nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability has been quoted with

approval in the Shah Babulal Khimji (supra). The Apex Court laid down the ratio in the said case in the following terms -

"119. Apart from the tests laid down by Sir White, C. J. , the following considerations must prevail with the court:

(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled prin ciples of civil justice. Thus, any discretion exer cised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party to or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient al lowance to the trial Judge and raise a presump tion that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and sub stantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancil lary proceeding or in the suit itself or in a part of the proceedings.

(3) The tests laid down by Sir White C. J. as also by Sir Couch, C. J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.

120. Thus these are some of principles which might guide a Division Bench in deciding whether an order passed by the trial Judge amounts to a judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of inter locutory orders which may be treated as judg ments : -

(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant.

(2) An order rejecting the plaint.

(3) An order refusing leave to defend the suit in an action under Order XXXVII, Code of Civil Procedure.

(4) An order rescinding leave of the trial Judge granted by him under Cl. XII of the Letters Patent.

(5) An order deciding a preliminary objec tion to the maintainability of the suit on the ground of limitation, absence of notice under Section 80, bar against competency of the suit against the defendant even though the suit is kept alive.

(6) An order rejecting an application for a judgment on admission under Order XII Rule 6.

(7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure.

(8) An order varying or amending decree.

(9) An order refusing leave to sue informa pauperis.

(10) An order granting review.

(11) An order allowing withdrawal of the suit with liberty to file a fresh one.

(12) An order holding that the defendants are not agriculturists within the meaning of the special law.

(13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Proce dure.

(14) An order granting or refusing to stay executive of the decree.

(15) An order deciding payment of Court-fees against the plaintiff. "

"122. We have byway of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, prag matism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situa tion so as to evolve a device or frame an exhaus tive formula or strategy to confine and incar cerate the same in a straitjacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term judgment would have now been set tled and a few cases which may have been left out, would undoubtedly be decided by the court concerned in the light of the tests, observations and principles enunciated by us. "

12. While repeating the example after referring to Asrumatis case (supra) an order of transfer has not been included. Thus the ratio in Asrumatis case (supra) is confirmed. Therefore, an order of transfer under clause 13 of the Letters Patent is not a judgment within the meaning of Clause 15 of the Letters Patent. The question now has to be determined from the point of the context in which the ratio was laid down. It may be said that these cases did not take into account the question of Section 24 of the Code in the light or the context of Section 115 of the Code. Then a close look to the context of the either of the provisions make it clear that there is no difference. There cannot be any doubt that the difference in the expressions used in the two provisions, though apparent, but is not real. What is judgment in clause 15 of the Letters Patent is the case decided in Section 115 of the Code. The basic concept is one and the same. Inasmuch as Clause 15 serves the same purpose in addi tion to appeals from orders, as Section 115 of the Code serves. The test laid down in the ratio ofasrumati Devi (supra) ap plies with full force in case of deciding as to whether an order is revisable under Section 115 of the Code. The very accep tance of the ratio of Asrumati Devi (supra) with approval in the case of Shah Babulal Khimji (supra) itself shows that an order of transfer is not a judgment. There cannot be any possible scope to draw any distinc tion. If any distinction is sought to be drawn, the same would surely be artificial.

13. The Full Bench of Allahabad High Court in the case of Ramrichpal Singh v. Dayanand Samp, 1955 ALJ 167 had answered the question as to which are cases within the meaning of Section 115 of the Code. In the said case it was enumerated as to what are cases and what are not within the meaning of Section 115 of the Code. However, the enumeration was not exhaustive. The enumerations (7) and (8) prescribe that "proceedings ter minated by other orders which are entirely procedural or routine are not cases; and interlocutory orders finally disposing of proceedings by deciding substantial ques tions affecting rights of the parties are "cases". This observation is quoted with approval in the case of Vishwa Mitra Kochar v. Girdhari Lai Tandon, 1958 ALJ 131, by a Division Bench on reference. The inference that can be

drawn from such an enumeration is that a proceeding under Section 24 of the Code even though it is interlocutory and the order finally dis posed of the proceeding but it does not decide the any substantial question affect ing the rights of the parties and as such is not a case. On the other hand, the order terminates a proceeding which is entirely a procedural and as such is not a case.

14. In the case of Kesodass v. N. C. Goyal & Co. , AIR 1938 Lah 33, it was held that no revision is competent against an order passed by the learned District Judge exercising his discretion to transfer a case. Admittedly, a revision lies against an order where a case is decided. Section 115 of the Code uses the expression that the "high Court may call for record of any case which has been decided by any Court subordinate to such High Court in which no appeal lies thereto. . . . . . . . . ". The case decided means where rights of the parties are adjudicated. Section 24 of the Code is not a right conferred on the party. It is only a discretionary power given to the District Court and the High Court to transfer a suit or appeal or other proceeding pending before any court subordinate to it and competent to try or dispose of the same or withdraw the suit pending in any court subordinate and try and dispose of the same or transfer the same from one court to another court subordinate and com petent to try and dispose of the same. By reason of such withdrawal or transfer either on the application of party or suo-motto, the court does not decide any right of the parties involved in the suit. The expression that has been used in couching Section 24 of the Code does not indicate that any right has been conferred on the parties in getting a suit or proceeding withdrawn or transferred. Section 22 of the Bengal, Agra and Assam Civil Courts Act, 1887 empowers the District Judge to transfer any appeal to any subordinate court under his administrative control arising out of decree or order of the Munsifs. He may also withdraw any appeal so transferred and either hear and dispose of himself or any transfer to any court com petent to dispose of it. Section 24 of the Code is in line with the said Section 22 of the Bengal, Agra and Assam Civil Courts Act, 1887 with the added power including suits and other proceedings apart from appeals which were contemplated in Sec tion 22 of the Bengal, Agra and Assam Civil Courts Act.

15. Section 11 of the Bengal Agra and Assam Civil Courts Act empowers the District Judge to transfer the suits and proceedings from the court subordinate to himself to any other court under his ad ministrative control competent to dispose of the same in the event of death, resigna tion or his incapacity by illness or other wise or absence from his place. In the case of Anand Issardas Motiyani and others v. Vlrji Raizi, AIR 1984 Bombay 39, it has held that the court while transferring the suit is unable to adjudicate upon substan tive controversy that arises between the parties with regard to the matters involved in the suit. Therefore, decision on an ap plication under Section 24 of the Code does not decide a case as contemplated in Section 115 of the Code. A case decided means a case involved in the suit or in other words the controversy between the parties to be adjudicated in the suit itself or in connection therewith. Whether the suit would be tried by one court or the other if decided the same in an administra tive function for the sake of convenience to a particular court. Whether the same would be tried by one court or other is wholly immaterial to the parties. The transfer of suit from one court to other has no concern with the subject-matter of the controversy between the parties. The par ties

cannot claim as of right to get a suit tried by a particular court. Decision to transfer a suit from one court to other is within the judicial process and is a procedural one yet in effect the same is ad ministrative in nature though created by judicious decision on sound judicial prin ciples.

16. In the case of Shah Babulal Khimi (supra) while deciding where an order is judgment within clause 16 of the Letters Patent, the Apex Court had observed that "in finding out whether the order is a judg ment within the meaning of clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the court. The nature of the order will have to be examined in order to ascertain whether there has been a determination of any right or liability. " The expression case decided used in Section 115 of the Code has the same implication that has been ascribed to clause 15 of the Letters Patent which prescribes that "an appeal shall. . . . . . . from the judgment. . . . . . . . . ". The expression judgment used in the clause 15 of the Letters Patent was interpreted to mean that an order where a right or liability of the parties arising out of the action be tween them is determined. An order under Section 24 of the Code does not decide any controversy in the suit or action be tween the parties. It neither determines any right or liability involved in the suit or action between the parties. The expres sion right nor liability means right to one and liability to the other. Inasmuch as on the determination ofa question, a right is ascertained in favour of one of the parties and such right of one party is liability of the other in relation to the controversy involved in suit or act ion.

17. Thus an order under Section 24of the Code either allowing or refusing to transfer or withdraw a suit or proceeding is not a case decided within the meaning of Section 115 of the Code and as such an order under Section 24 of the Code is not subject to revision under Section 115 of the Code.

18. Since the order is neither appeal able nor revisable as is the position as observed earlier, the same can never be sacrosauet or without any remedy. Such remedy are available under different provision of law. If it is an order of District Court refusing to transfer or allowed the transfer, the party can approach for retransfer, if transferred either before the District Judge or before the High Court. If refused, the aggrieved party may approach the High Court for transfer where such discretion has been exercised by the High Court. Similarly in case of transfers, the High Court may be approached for retransfer and in case of refusal, the party is free to approach the Supreme Court under Section 25 of the Code. Against an order passed by the learned District Judge, it is open to the party to invoke the Higher Courts power of superintendence over subordinate court conferred upon the former under Article 227 of the Constitu tion. Inasmuch as Article 227 of the Con stitution is not fellered (sic) by any other law or statute or any qualification.

19. In the case of Narinjan Singh and others v. Kirpal Singh, AIR 1925 Lahore 189, an order for transfer was held to be a case decided within the meaning of Sec tion 115 of the Code. The same High Court however in Kesho Das (supra) took a different view subsequently. Similar view as that ofniranjan Singh (supra) was taken by the Patna High Court in the case of Baijnath Prasad Singh v. Dasrath Pd. Singh, AIR 1958 Pat 9 [LQ/PatHC/1957/139] , in the case of A. S. De Mello and another v. New Victoria Mill Co. Ltd. , AIR 1926 Alld 17 and in the case of Dasrath Pd. Singh and another v. Baijnath Prasad Singh, AIR 1960 Pat 285 [LQ/PatHC/1959/152] . But in these cases, it was held that it is open to revision in case where the court has acted without jurisdiction or illegally with material illegality or where having been passed on an erroneous views of the law which amounts refusal by the Court to exercise the power vested in it by law. But the said views had lost its relevance be cause of the amendment of Section 115 by the Code of Civil Procedure (Amend ment) Act (104 of 1976) in sub -section (1) of Section 115 which inserted certain con ditions. The expression case decided has been qualified by the explanation ap pended at the bottom of Section HSoftlie Code which includes any order made, or any order deciding an issue, in the course of a suit or other proceeding. The proceedings under Section 24 is an inde pendent proceeding. It is not a proceed ings in the suit. Therefore, it cannot fit in the ambit of the explanation above. Then again on the face of the ratio decided in the case of Asrumati Devi (supra) the said decisions cannot be said to have been laid down a good law, particularly when in none of those cases Asrumati Devi (supra) was referred to and distinguished. Thua a revision under Section 115 against an order under Section 24 of the Code is incompetent.

20. Now turning to the second point it may be observed that Section 24 of the Code has used an expression which clearly indicates that the power is concurrent to both the District Judge and the High Court. Inasmuch as it has used the expres sion that "high Court or the District Court may (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".

21. The jurisdiction conferred under Section 24 of the Code is concurrent does not conceive of any scope of doubt. But whether the concurrent jurisdiction means that both the jurisdiction can be availed together or one after the other. The concurrence means both the courts having jurisdiction, the parties are free to approach one or the other. Whenever con current jurisdiction has been conferred on the High Court and the District Court, it is provided that if one of the forum is ap proached, the party would be precluded from approaching the other forum. Inas much as in the West Bengal amendment of Section 115 of the Code by which Section 115- A has beer, inserted. Under the said provisions both High Court and District Court have been empowered to entertain an application under Section 115 of the Code. Under sub-sections (3) and (4) thereof it has been provided that if either of the court is approached, no further revision shall be entertained between the same parties-either by the High Court

or the District Court as the case may be. Similar provision has also been incor porated in Section 397 of the Cr. P. C. where in sub-section (3) similar exclusion of jurisdiction by the High Court or Ses sions Court having concurrent jurisdiction has been provided. In the absence of specific prohibition or exclusion of juris diction, Section 24 of the Code cannot be interpreted to mean that the jurisdiction of the one court is to the exclusion of the other. But a situation may arise where the High Court having been unsuccessfully ap proached, a party may approach to the District Court thereafter. If such a situa tion is permitted, it would work out a judicial anarchy. After having unsuccess ful before the District Court, a party may approach the High Court. Such position is in conformity with the system of judicial hierarchy. If the party approaches the High Court then it cannot come back to the District Court. Such an interpretation would not be in conformity with the judi cial system of hierarchy.

22. But in case a party seeking trans fer, is unsuccessful in the District Court whether he is precluded from challenging the said order. The answer would be avail able by resorting to Article 227 of the Constitution. Therefore, it cannot be said that he is precluded from challenging such an order if sufficient ground is made out for invoking such jurisdiction. Similarly, if an applicant before the High Court succeeds, the aggrieved party cannot avail the concurrent" jurisdiction of the District Judge thereafter on the same analogy due to v^ch successful candidate is so prevei. ,od. The jurisdiction may not be mutually excluded but once the High Court is approached, the jurisdiction of the District Court is excluded.

23. In the case of Corachand Das v. Bipal Das, 1976 (2)Cal LI 380, it was held that even after the District Court refused the prayer for transfer under Section 24 of the Code, the High Court may be moved for transfer.

24. Thus the out-come of the above discussion indicates that when an applica tion for transfer before the District Court fails, the party applying may approach the concurrent jurisdiction of the High Court under the same provision but the party opposing though may apply for retransfer before the District Judge but cannot chal lenge the said order under Section 115 of the Code though, however, on the prin ciple on which Article 227 of the Constitu tion can be exercised he may invoke the power of superintendence conferred upon the High Court by the Constitution under Article 227 of the Constitute thereof. But if the party approaches the concurrent jurisdiction of the High Court straight away then the applicant and Opposite Party- both may approach the Supreme Court under Section 25 of the Code, if aggrieved by the order of the High Court. But once the High Court passes an order under Section 24 on an application of an unsuccessful applicant before the District Judge, the order of. the District Judge stands overruled by implication on passing of the order by the High Court. As such in the facts and circumstances of the present case, the application under Section 24 of the Code before this Court is main tainable.

25. Now turning to the merits of the case it appears that in respect of 1974 suit, hearing is concluded and the judgment is reserved. There is no scope at this stage of transfer the suit for trial inasmuch as once the hearing is concluded and the judgment is reserved nothing remains to be tried. It is only awaiting judgment. Such an situation is fortified by reason of Order XXII, Rule6 of the Code which prescribes that there would be no abatement if death occurs between the conclusion of hearing and pronouncement of the judgment and the judgment in such case may be pronounced and it shall have the same force and effect as if it was pronounced before the death took place. Therefore, this is not a stage where the suit could be transferred. That apart in the present case, the only ground that has been made is identity of the par ties, identity of the suit property and the identity of the reliefs which are basis of the claim for transferring of the suits to one court. But from the perusal of plaints, it appears that the suit properties are different and the reliefs are altogether dif ferent and cannot be tried together. Even then the applicants had been parties in 1974 suit having been aware of the proceeding in the 1974 suit they had filed the subsequent suit in 1991 which is one of the fact to be taken into account for pass ing such an order. Then again the question of title cannot be gone into in the SCC suit where the scope is limited to the relief claimed and as such the same is also cannot be tried together. It is open to the parties to plead that the SCC suit is not maintainable because of the dispute with regard to the title and the court is empowered to pass appropriate order, if necessary. The learned District Judge while passing the order dated 8-4-1993 has taken into ac count all these questions and had rightly dismissed the application for transfer. The reasons given therein appears to be valid 8. 0-1 there is; no infirmity. IT cannot be said that he had exercised his jurisdiction not vested on him or had failed to exercise his jurisdiction not vested on him or had failed to exercise his jurisdiction vested in it. Neither it can be said that he has no juris diction to pass the said order. Therefore, even on merits, no case is made out.

26. On these grounds the application fails and is accordingly dismissed. The in terim order is hereby discharged. This court hopes and trusts that the suits par ticularly the 1974 suit may be decided as early as possible.

27. There will, however, be no order as to cost.

Application dismissed.