Madhya Pradesh High Court
Smt. Sadhana Bhadoriya vs Dr. Sunil Bhadoriya on 4 February, 2019
Equivalent citations: AIRONLINE 2019 MP 186
1 CR-86-2019
THE HIGH COURT OF MADHYA PRADESH
CR-86-2019
(Smt. Sadhana Bhadoriya Vs. Dr. Sunil Bhadoriya)
Gwalior, Dated : 04-02-2019
Shri H.K. Shukla, counsel for the applicant.
This revision under Section 115 of the CPC has been filed
challenging the order dated 25.01.2019 passed by Principal Judge,
Family Court, Gwalior in Miscellaneous Transfer Petition No. 6/2019
(MJC), by which the application filed by the respondent under
Section 24 of CPC has been allowed and the matrimonial case under Section 13 of the Hindu Marriage Act filed by the respondent and suit under Section 9 of the Hindu Marriage Act filed by the applicant have been transferred from the Court of Additional Principal Judge, Family Court, Gwalior to the Link Court, Family Court, Gwalior. By the same order, the transfer petition No. 55/2018 filed by the applicant for transfer of her case under Section 125 of Cr.P.C. from the Link Court to any other Court has been rejected.
The necessary facts for the disposal of the present revision in short are that the parties are husband and wife and the respondent has filed a petition under Section 13 of the Hindu Marriage Act, whereas the applicant has filed a petition under Section 9 of the Hindu Marriage Act. The applicant has also filed an application under Section 125 of Cr.P.C. and all these cases are pending. By filling an application under Section 24 of CPC, it was submitted by the 2 CR-86-2019 respondent that the petition filed by the respondent under Section 13 of Hindu Marriage Act, which has been registered as 400-A/2015 and the petition filed by the applicant under Section 9 of the Hindu Marriage Act, which has been registered as 373-A/2016 are pending in the Court of Additional Principal Judge, Family Court, Gwalior whereas the application filed by the applicant under Section 125 of Cr.P.C., which has been registered as 42/2016 is pending before the Link Court, Family Court, Gwalior. In case No. 400-A/2015 on 17.03.2017, the respondent had filed an application under Order 6 Rule 17 of CPC, but the Presiding Officer in spite of hearing the arguments on the said application, is not deciding the same. Another application was also filed on 17.07.2018 and the same has also been kept pending by the Presiding Judge and is adjourning the matter for arguments. The application filed by the applicant under Section 125 of Cr.P.C. was also pending in the same Court and when the respondent tried to put certain question alleging adultery against the applicant, then he was not allowed to do so. Accordingly, the respondent had approached the High Court by filing M.Cr.C. No. 32023/2018, which was allowed and it was held that the respondent is entitled to put question to the applicant about the adultery. The applications for amendment, which have been filed in case No. 400- A/2015, are with regard to the adultery and cruelty, but the Presiding Judge is deliberately not deciding the matter.
Similarly, the applicant had filed an application for transfer of 3 CR-86-2019 her application under Section 125 of Cr.P.C. from the Link Court to any other Court. The Principal Judge, Family Court, Gwalior, after considering the conduct of the Presiding Judge in keeping the application pending and in not deciding the cases simultaneously, where the allegations were identical and same, came to the conclusion that the apprehension in the mind of the respondent of not getting the justice is reasonable and accordingly has allowed the application filed by the respondent and has transferred the cases to the Link Court, Gwalior. As two cases involving the identical allegations were transferred to the Link Court, Family Court, Gwalior, therefore, the application filed by the applicant for transfer of her criminal case under Section 125 of Cr.P.C. from the Link Court Family Court, Gwalior has been rejected. The Court below has also expressed its displeasure over keeping the amendment applications pending for such a long time.
The question for consideration is that whether the apprehension expressed by any of the party for transfer of the case can be said to be reasonable or not ? The Supreme Court in the case of Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust and others reported in (2008) 3 SCC 659 has held as under:-
"23. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by courts. They are balance of
4 CR-86-2019 convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; "interest of justice"
demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a "fair trial" in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order.
25. Similarly in Subramaniam Swamy (Dr.) v. Ramakrishna Hegde dealing with power of this Court to transfer a case under Section 25 of the Code, A.M. Ahmadi, J. (as His Lordship then was) stated: (SCC p. 9, para 8) "8. Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided that the State Government of the State in which the other High Court had its principal seat consented to the transfer. The present Section 25 confers the power of transfer on the Supreme Court and is of wider amplitude. Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court or other civil court in one State to a High Court or other civil court of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceeding. The question of
5 CR-86-2019 expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. Parliament has, therefore, invested this Court with the discretion to transfer the case from one court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude--for the ends of justice--have been advisedly used to leave the matter to the discretion of the Apex Court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone."
The Supreme Court in the case of Gurcharan Dass Chadha Vs. State of Rajasthan reported in (1966) 2 SCR 678 : AIR 1966 SC 1418 has held as under:-
"13. With regard to the Home Minister Petition he has given five instances in which he apparently crossed the minister's path and gave him room for annoyance. In regard to the two Police Officers he has averred that the Deputy Inspector- General of Police, Ajmer Range (Hanuman Prasad Sharma) and he had some differences on three
6 CR-86-2019 occasions. He has also given similar instances of hostility towards him entertained by Sultan Singh, Deputy Inspector-General of Police. On the basis of these he says that he entertains an apprehension that he will not receive justice in the State of Rajasthan. The law with regard to transfer of cases is well settled. A case is transferred if there is a reasonable apprehension on the part of a party to a case that justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of the administration of justice that justice should not only be done but it should be seen to be done. However, a mere allegation that there is apprehension that justice will not be done in a given case does not suffice. The Court has further to see whether the apprehension is reasonable or not. To judge of the reasonableness of the apprehension the state of the mind of the person who entertains the apprehension is no doubt relevant but that is not all. The apprehension must not only be entertained, but must appear to the Court to be a reasonable apprehension."
The Supreme Court in the case of Harita Sunil Parab v. State (NCT of Delhi) and others reported in (2018) 6 SCC 358 has held as under:-
"8. The apprehension of not getting a fair and impartial enquiry or trial is required to be reasonable and not imaginary, based upon conjectures and surmises. No universal or hard-and- fast rule can be prescribed for deciding a transfer petition, which will always have to be decided on the facts of each case......."
Thus, if the facts of the present case are considered then it is clear that the applications filed by the respondent for amendment of the pleadings on 17.03.2017 and 17.07.2018 have been kept pending 7 CR-86-2019 by the Presiding Judge without any reason. It is also surprising that how the Presiding Judge can keep such application pending for near about two years. It is the contention of the respondent that the arguments were heard on several occasions, but instead of passing an order, the Presiding Judge is unnecessarily keeping the application pending, then it can be inferred that the apprehension of not getting justice from the Court of Presiding Judge expressed by the respondent was not unreasonable.
Furthermore, by unnecessarily keeping the application pending for years together and not proceeding further with the case is also not expected from a Judge. A Judge is expected to make every endeavour to decide the lis between the parties as early as possible without any delay. Justice delayed, justice denied is a concept, which has a force in our country. Judges must not forget that by unnecessarily keeping the lis pending, they are creating a situation, where the litigant may lose faith in the judiciary. It is true that merely a judicial order is passed against one of the party cannot be a ground for transfer, but not deciding the application at all and keeping the litigation pending and in spite of the repeated requests made by the litigant to decide even the application for amendment and not adhering to the request to the litigant clearly indicates that the apprehension expressed by the litigant is not baseless.
Thus, this Court is of the considered opinion that the Court below did not commit any mistake in transferring the cases to the 8 CR-86-2019 Link Court, Family Court, Gwalior. As no perversity could be pointed out, the order dated 25.01.2019 passed by Principal Judge, Family Court, Gwalior in Miscellaneous Transfer Petition No. 6/2009 (MJC) is hereby affirmed.
The revision fails and is hereby dismissed in limine.
(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2019.02.11 10:37:07 +05'30'