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Ali Zaheer vs Tasneem Zahera on 21 August, 2019


?Court No. – 9

Case :- TRANSFER APPLICATION (CIVIL) No. – 160 of 2019

Applicant :- Ali Zaheer

Opposite Party :- Tasneem Zahera

Counsel for Applicant :- Gulrez Khan,Javed Husain Khan,W.H. Khan, Sr. Advocate

Hon’ble Anjani Kumar Mishra,J.

The opposite party has filed an application for recall of an order dated 15.05.2019, whereby Case No. 44 of 2013, under Section 25 of the Guardians and SectionWards Act, Ali Zaheer versus Tasneem Zahera pending before the Principal Judge Family Court, Aligarh was directed to be transferred to District Amroha.

Recall of this order is being sought on the ground that the opposite party arrived at Allahabad on 15.05.2019 at about 3.p.m. by which time, the transfer application had already been allowed. Recall is also sought on the ground that applicant is a lady and she has to take care of two minor children. She is also under employment and therefore, the transfer application should not have been allowed and the order allowing it be recalled.

Counsel appearing for the applicant has opposed the recall application stating that the transfer application was in fact allowed because a case between the parties had been transferred to Amroha under directions issued by the Apex Court.

I have considered the submissions made by counsel for the parties.

On a pointed query by the court as to the pendency of the case transferred under directions of the Apex Court Amroha, counsel for the applicant has admitted its pendency.

The contention that the applicant arrived at Allahabad on 15.05.2019 at about 3:p.m. and at that time, the transfer application had already been allowed, in my considered opinion is of no consequence. The notice duly served upon the opposite party, intimated the date for appearance, as 14.05.2019. The applicant therefore, should have filed his appearance on or before the said date. There is no justification for the applicant to have come to Allahabad on 15.04.2019 a day after the date fixed for appearance in the registered notice.

Under the circumstances, the order dated 15.05.2019 is not liable to be recalled on the ground urged by counsel for the opposite party.

However, the order dated 15.05.2019 is qualified by the additional stipulation that the transferee court shall ensure that identical dates are fixed in Case No. 44 of 2013 transferred by means of the order sought to be recalled, as also the case which has been transferred to Amroha on the directions of the Apex Court as both the cases are said to be pending before the Family Court, Amroha. Therefore if identical dates are fixed therein the opposite party shall not be required to travel to Amroha, twice over.

Order Date :- 21.8.2019




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