High Court

Learned counsel for the petitioner, at the outset, made submissions that he was unaware of the Division Bench judgement in Babu Singh & others v. Raj Bahadur Singh and others [Transfer Application (Civil) No. 121 of 2021] decided on 10.11.202.

6. The Division Bench while answering a similar nature reference in relation to exercise of revisional power under Section 115 CPC against order of the District Judge in relation to order passed under Section 24 CPC, which deals with general powers of transfer and withdrawal, came to the conclusion that such revision petition was maintainable.

7. Learned counsel for the respondents also relied on the decision in Babu Singh (Supra).

8. We have considered the submissions made by counsel for the parties and perused the material available on record.

9. It would be appropriate to quote provisions of Section 209, 210 and 212 of the Code, 2006, which read as under : "209. Bar against certain appeals -- Notwithstanding anything contained in Sections 207 and 208, no appeal shall lie against any order or decree -- (a) made under Chapter XI of this Code; (b) granting or rejecting an application for condonation of delay under Section 5 of Limitation Act, 1963; (c) rejecting an application for revision; (d) granting or rejecting an application for stay; (e) remanding the case to any subordinate Court; (f) where such order or decree is of an interim nature. (g) passed by Court or officer with the consent of parties; or (h) where has been passed ex-parte or by default: Provided that any party aggrieved by order passed ex-parte or by default, may move application for setting aside such order within a period of thirty days from the date of the order; Provided further that no such order shall be reversed or altered without previously summoning the party in whose favour order has been passed to appear and be heard in support of it.

210. Power to call for the records -- (1) The Board or the Commissioner may call for the record of any suit or proceeding decided by any sub-ordinate Revenue Court in which no appeal lies, for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding; and if such subordinate Court appears to have- (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or 3 (c) acted in the exercise of such jurisdiction illegally or with material irregularity; the Board, or the Commissioner, as the case may be, may pass such order in the case as it or he thinks fit. (2) If an application under this section has been moved by any person either to the Board or to the Commissioner, no further application by the same person shall be entertained by the other of them. Explanation. - For the removal of doubt it is, hereby, declared that when an application under this section has been moved either to the Board or to the Commissioner, the application shall not be permitted to be withdrawn for the purpose of filing the application against the same order to the other of them. (3) No application under this section shall be entertained after the expiry of a period of sixty days from the date of the order sought to be revised or from the date of commencement of this Code, whichever is later.

212. Power to transfer cases -- (1) Where it appears to the Board that it will be expedient for the ends of justice to do so, it may direct that any case be transferred from one revenue officer to another revenue officer of an equal or superior rank in same district or any other district. (2) The Commissioner, the Collector or the Sub-Divisional Officer may make over any case or class of cases arising under the provisions of this Code or any other enactment for the time being in force, for decision from his own file to any revenue officer sub-ordinate to him and competent to decide such case or class of cases, or may withdraw any case or class of cases from any such revenue officer and may deal with such case or class of cases himself or refer the same for disposal to any other revenue officer competent to decide such case or class of cases."

10. A perusal of the provisions of Section 212 reveals that power of transfer under sub-section (1) is conferred on the Board of Revenue, which may direct that any case be transferred from one revenue officer to another revenue officer of an equal or superior rank in same district or any other district. Under sub- section (2) the power has been conferred on the Commissioner, the Collector and the Sub Divisional Officer in relation to any case or class of cases for transfer from own file to any revenue officer sub-ordinate to him or withdraw any case or class of cases from any such revenue officer and may deal with such case or class of cases himself or refer the same for disposal to any other revenue officer competent to decide such case or such class of cases.

11. The power of the Board of Revenue and that of the Commissioner/ Collector/Sub Divisional Officer are concurrent, wherein the power which can be exercised by the Commissioner, the Collector or the Sub Divisional Officer can also be exercised by the Board of Revenue. 4

12. The Code, 2006 provides for First Appeal under Section 207 against final order or decree passed in a suit, application or proceedings specified in Column 2 of Third Schedule and the same also lies against an order of nature specified in Section 47, 104 and Order XLIII Rule 1 CPC.

13. Order passed under Section 212 is not specified in Column 2 of the Third Schedule of the Code and as such, the same is not appellable. Section 209 of the Code, 2006 bars filing of appeals against certain orders.

14. Section 210 of the Code, 2006 confers revisional powers on the Board or the Commissioner in relation to any order passed in any suit or proceeding by any sub-ordinate revenue court in case no appeal lies.

15. A combined reading of the above provisions reveals that against an order passed under Section 212(2) of the Code, 2006, a revision would lie before the Board of Revenue.

16. A Co-ordinate Bench of this Court in Babu Singh (Supra), after scanning the entire law on the subject, came to the following conclusions : "43. In view of what we have held above, our answers to the questions referred are these: (i) The question is answered in the affirmative and it is held that an order passed by the District Judge under Section 24 CPC is revisable under Section 115 CPC as applicable in the State of U.P. (ii) The question stands answered in the negative and it is held that another application under Section 24 CPC by the same applicant based on the same cause of action would not be maintainable before this Court without challenging the order passed by the District Judge, on the application disposed of by the District Judge under Section 24 CPC through a revision under Section 115 CPC. Normally, the order of the District Judge passed on an application under Section 24 CPC being revisable, the constitutional remedy under Article 227, though not barred, may not be invoked on the sound principle of the availability of an equally efficacious statutory alternative remedy under Section 115 CPC."

17. So far as the judgement in the case of Sharda Singh (Supra) is concerned, the issue in the said case arose on account of the plea raised that when the transfer application was filed before the Board of Revenue, it was not disclosed that earlier transfer application was filed before the Collector, Kashganj, which was dismissed, on which submission, the learned Single Judge came to the conclusion that power of transfer under Section 212 is a concurrent power to be exercised by any of the authorities mentioned in sub- 5 section (2) of Section 212 of the Code, 2006, however, after coming to the said conclusion a further observation, as under, was made : "None of the authorities exercises either appellate or revisional jurisdiction over an order on a transfer application, which may have been passed by a authority subordinate to it."

18. We are of the opinion that the said observations were made without reference to the relevant provisions, including Section 210 of the Code, 2006 and without discussion on the subject matter.

19. In view of the above discussions, our answer to the question referred to us as under : I. A revision petition under Section 210 of the Code, 2006 would be maintainable against an order passed/transferring any case or proceedings in exercise of powers under Section 212(2) of the Code, 2006. The observations made in the case of Sharda Singh (Supra) in II. relation to the revisional jurisdiction, do not lay down correct law.

20. The reference is answered accordingly.

21. Let the matter be placed before the appropriate Bench. Order Date :- 19.3.2025 (Jaspreet Singh, J) (Arun Bhansali, CJ)

Learned counsel for the petitioner, at the outset, made submissions that he was unaware of the Division Bench judgement in Babu Singh & others v. Raj Bahadur Singh and others [Transfer Application (Civil) No. 121 of 2021] decided on 10.11.202.

6. The Division Bench while answering a similar nature reference in relation to exercise of revisional power under Section 115 CPC against order of the District Judge in relation to order passed under Section 24 CPC, which deals with general powers of transfer and withdrawal, came to the conclusion that such revision petition was maintainable.

7. Learned counsel for the respondents also relied on the decision in Babu Singh (Supra).

8. We have considered the submissions made by counsel for the parties and perused the material available on record.

9. It would be appropriate to quote provisions of Section 209, 210 and 212 of the Code, 2006, which read as under : "209. Bar against certain appeals -- Notwithstanding anything contained in Sections 207 and 208, no appeal shall lie against any order or decree -- (a) made under Chapter XI of this Code; (b) granting or rejecting an application for condonation of delay under Section 5 of Limitation Act, 1963; (c) rejecting an application for revision; (d) granting or rejecting an application for stay; (e) remanding the case to any subordinate Court; (f) where such order or decree is of an interim nature. (g) passed by Court or officer with the consent of parties; or (h) where has been passed ex-parte or by default: Provided that any party aggrieved by order passed ex-parte or by default, may move application for setting aside such order within a period of thirty days from the date of the order; Provided further that no such order shall be reversed or altered without previously summoning the party in whose favour order has been passed to appear and be heard in support of it.

210. Power to call for the records -- (1) The Board or the Commissioner may call for the record of any suit or proceeding decided by any sub-ordinate Revenue Court in which no appeal lies, for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding; and if such subordinate Court appears to have- (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or 3 (c) acted in the exercise of such jurisdiction illegally or with material irregularity; the Board, or the Commissioner, as the case may be, may pass such order in the case as it or he thinks fit. (2) If an application under this section has been moved by any person either to the Board or to the Commissioner, no further application by the same person shall be entertained by the other of them. Explanation. - For the removal of doubt it is, hereby, declared that when an application under this section has been moved either to the Board or to the Commissioner, the application shall not be permitted to be withdrawn for the purpose of filing the application against the same order to the other of them. (3) No application under this section shall be entertained after the expiry of a period of sixty days from the date of the order sought to be revised or from the date of commencement of this Code, whichever is later.

212. Power to transfer cases -- (1) Where it appears to the Board that it will be expedient for the ends of justice to do so, it may direct that any case be transferred from one revenue officer to another revenue officer of an equal or superior rank in same district or any other district. (2) The Commissioner, the Collector or the Sub-Divisional Officer may make over any case or class of cases arising under the provisions of this Code or any other enactment for the time being in force, for decision from his own file to any revenue officer sub-ordinate to him and competent to decide such case or class of cases, or may withdraw any case or class of cases from any such revenue officer and may deal with such case or class of cases himself or refer the same for disposal to any other revenue officer competent to decide such case or class of cases."

10. A perusal of the provisions of Section 212 reveals that power of transfer under sub-section (1) is conferred on the Board of Revenue, which may direct that any case be transferred from one revenue officer to another revenue officer of an equal or superior rank in same district or any other district. Under sub- section (2) the power has been conferred on the Commissioner, the Collector and the Sub Divisional Officer in relation to any case or class of cases for transfer from own file to any revenue officer sub-ordinate to him or withdraw any case or class of cases from any such revenue officer and may deal with such case or class of cases himself or refer the same for disposal to any other revenue officer competent to decide such case or such class of cases.

11. The power of the Board of Revenue and that of the Commissioner/ Collector/Sub Divisional Officer are concurrent, wherein the power which can be exercised by the Commissioner, the Collector or the Sub Divisional Officer can also be exercised by the Board of Revenue. 4

12. The Code, 2006 provides for First Appeal under Section 207 against final order or decree passed in a suit, application or proceedings specified in Column 2 of Third Schedule and the same also lies against an order of nature specified in Section 47, 104 and Order XLIII Rule 1 CPC.

13. Order passed under Section 212 is not specified in Column 2 of the Third Schedule of the Code and as such, the same is not appellable. Section 209 of the Code, 2006 bars filing of appeals against certain orders.

14. Section 210 of the Code, 2006 confers revisional powers on the Board or the Commissioner in relation to any order passed in any suit or proceeding by any sub-ordinate revenue court in case no appeal lies.

15. A combined reading of the above provisions reveals that against an order passed under Section 212(2) of the Code, 2006, a revision would lie before the Board of Revenue.

16. A Co-ordinate Bench of this Court in Babu Singh (Supra), after scanning the entire law on the subject, came to the following conclusions : "43. In view of what we have held above, our answers to the questions referred are these: (i) The question is answered in the affirmative and it is held that an order passed by the District Judge under Section 24 CPC is revisable under Section 115 CPC as applicable in the State of U.P. (ii) The question stands answered in the negative and it is held that another application under Section 24 CPC by the same applicant based on the same cause of action would not be maintainable before this Court without challenging the order passed by the District Judge, on the application disposed of by the District Judge under Section 24 CPC through a revision under Section 115 CPC. Normally, the order of the District Judge passed on an application under Section 24 CPC being revisable, the constitutional remedy under Article 227, though not barred, may not be invoked on the sound principle of the availability of an equally efficacious statutory alternative remedy under Section 115 CPC."

17. So far as the judgement in the case of Sharda Singh (Supra) is concerned, the issue in the said case arose on account of the plea raised that when the transfer application was filed before the Board of Revenue, it was not disclosed that earlier transfer application was filed before the Collector, Kashganj, which was dismissed, on which submission, the learned Single Judge came to the conclusion that power of transfer under Section 212 is a concurrent power to be exercised by any of the authorities mentioned in sub- 5 section (2) of Section 212 of the Code, 2006, however, after coming to the said conclusion a further observation, as under, was made : "None of the authorities exercises either appellate or revisional jurisdiction over an order on a transfer application, which may have been passed by a authority subordinate to it."

18. We are of the opinion that the said observations were made without reference to the relevant provisions, including Section 210 of the Code, 2006 and without discussion on the subject matter.

19. In view of the above discussions, our answer to the question referred to us as under : I. A revision petition under Section 210 of the Code, 2006 would be maintainable against an order passed/transferring any case or proceedings in exercise of powers under Section 212(2) of the Code, 2006. The observations made in the case of Sharda Singh (Supra) in II. relation to the revisional jurisdiction, do not lay down correct law.

20. The reference is answered accordingly.

21. Let the matter be placed before the appropriate Bench. Order Date :- 19.3.2025 (Jaspreet Singh, J) (Arun Bhansali, CJ)