Andhra HC (Pre-Telangana)
Smt. Saraswati Bai vs Acharya Ved Bhushan on 12 December, 1995
Equivalent citations: 1995(3)ALT887, 1996 A I H C 1317, (1996) 4 CURCC 37, (1996) 1 ANDHLD 391, (1996) 1 ICC 572
ORDER Motilal B. Naik, J.
1. Petitioner is the defendant in O.S. No. 1407 of 1986 on the file of the VII Assistant Judge, City Civil Court, Hyderabad.
2. In this Tr.C.M.P., she seeks transfer of O.S.No.1407 of 1986 pending on the file of the VII Assistant Judge, City Civil Court, Hyderabad to any other Court of competent jurisdiction for disposal on merits.
3. This petition is filed at a stage when the entire evidence on behalf of both sides was adduced and arguments were also advanced on behalf of the plaintiff in the said suit, when the matter was posted for advancing the arguments on behalf of the defendant on 28-6-1995 finally, the Counsel appearing on behalf of the petitioner was not ready to proceed with the case on the said date, i.e., on 28-6-1995, the Court was requested to adjourn the case up to 30-6-1995 and again on an application filed by the petitioner herein under Order 17 Rule 1 of C.P.C. on 30-6-1995, the case was adjourned on 6-7-1995 enabling the petitioner's counsel to advance arguments on her behalf.
4. In support of the Tr.C.M.P., the petitioner has filed an affidavit attributing mala fides against the Presiding Officer. This apart, the petitioner has also moved similar transfer petition before the Chief Judge, City Civil Court, Hyderabad in O.P. No. 640 of 1.995 under Section 24 of CPC seeking transfer of the said suit O.S. No. 1407 of 1986 from the Court of the VII Assistant Judge, City Civil Court, Hyderabad to any other Court. In the said O.P., the Chief Judge, City Civil Court has called for the remarks of the Presiding Officer, The Presiding Officer has categorically denied the allegations. On the contrary, the Presiding Officer has stated that the petitioner has been adopting delayed tactics in order to drag on the suit which is of the year 1986 even though the entire evidence on behalf of both parties was recorded and arguments on behalf of the plaintiff were also advanced and the case is posted for arguments on behalf of the defendant, on 28-6-1995. On that day, a representation was made on behalf of the Counsel for the petitioner seeking adjournment. The case was, however, adjourned to 30-6-95 for the arguments of the defendant's Counsel. From then onwards adjournments are sought on various grounds upto 6-7-1995.
5. The Chief Judge, City Civil Court, Hyderabad has passed a detailed order rejecting the said O.P. No. 640/95 by an order dated 9-8-1995 holding that the allegations are untrue and the petition is filed only to drag on the matter and there are no merits in the said transfer O.P.
6. The endeavour of Sri N.V.S.R. Gopalakrtshnamacharyulu, Counsel for the petitioner is to the effect that the Presiding Officer has formed an opinion about the case and therefore, if the case is allowed to be decided by the same Presiding Officer his client would suffer irreparable injury and as such seeks transfer of the said suit. In support of his contentions, Sri Gopalakrishnam Charyulu has taken this Court to various decisions reported in Khwaja Ahad Shah v. Mt. Ayshan Begum, AIR 1923 Lahore 564 Mt. Paro v. Chhaja Singh and Anr., AIR 1934 Lahore 539 Dr. Hardit Singh Jaswant Singh v. Bhagat Jaswant Singh and Ors., AIR 1964 Punjab 277 Hazara Singh Gill v. The State of Punjab, Thounaojam Ningol Indrani Devi and Ors. v. The Municipal Board of Imphal and Ors., AIR 1958 Manipur 26 and Union of India and Anr v. Shiromani Gurdwara Prabhandhak Committee and Ors., . Besides these decisions, the learned Counsel for the petitioner has also drawn my attention to few unreported decisions of this Court. It is his endeavour that when a party apprehends that injustice would be caused to him, it would be appropriate to transfer the said case from one Court to another Court.
7. When the matter came up for admission before this Court, this Court directed the Counsel for the petitioner to place the order copy in transfer O.P. No. 640 of 1995 passed by the Chief Judge, City Civil Court, Hyderabad on 9-8-1995. When the matter came up for further hearing on 24-11 1995, the Counsel for the petitioner placed the said order in O.P. No. 640 of 1995.
8. I have heard the arguments of the counsel for the petitioner at length. I have also perused the order passed by the Chief Judge, City Civil Court, Hyderabad in O.P. No. 640 of 1995.
9. It is no doubt true that in an appropriate case, when an application is filed under Section 24 of C.P.C, Courts in given set of circumstances withdraw a case from one Court and transfer it to another Court. The general principle underlining Section 24 of the Code of Civil Procedure, governing the transfer of cases from one Court to another is that the adjudication of a dispute if allowed to be completed in the same Court, the parties are likely to suffer irreparable injury or there is likelihood of injustice being done to the party or where the suit has been filed in a particular Court for the purpose of working injustice to opposite party, besides the party seeking transfer has reasonable apprehension that he will not get a fair trial or transfer is needed to avoid conflicting decisions and to avoid multiplicity of litigation.
10. In this case, however, the averments made in the affidavit filed in support of the Tr.CM.P. disclose contrary situation. The suit is of the year 1986 and is being adjourned from time to time at the instance of the petitioner. Evidence on behalf of both the parties has been let in. Arguments on behalf of the plaintiffs have already been completed. When the case is posted for arguments on behalf of the defendant who is the petitioner herein, the petitioner tried to file interlocutory application in LA. No. 1647/94 seeking to amend issues, which was, however, dismissed on 19-6-1995 by the Court below and the case was posted on 28-6-1995 for arguments. It was represented on behalf of the Counsel for the petitioner that his counsel was suffering from tooth-pain and the case was therefore adjourned on 3-6-1995. Again on 30-6-1995, the Counsel for the petitioner was not present in. the Court and therefore, again an application under Order 17 Rule 1 of CPC was filed. The matter was then adjourned to 6-7-1995. On 6-7-1995 the Court took up the case around 4.30 p.m. after completing the other matters listed before it.
11. The petitioner has tried to make out an issue on this ground that when her counsel was sitting in the Court right from morning with bundles of books, the case could not be taken up immediately though it was posted specifically for arguments or that day. The Presiding Officer seems to have informed her counsel that the case would be called at 2.30 p.m. in the afternoon session. However, the case was called at 4.30 p.m. At that stage, it is stated by the petitioner that when her counsel wanted to advance his arguments, the Presiding Officer seems to have asked her counsel to provide xerox copies of the decisions which the Counsel is relying upon in support of his client's case and the case was adjourned to 7-7-1995.
12. It is the practice in the lower Courts that several cases are posted on a particular day. The cases are called according to the list. When such of those cases in which the counsel are ready, they are taken up according to the list. In the afternoon session also, there are some urgent matters by way of out of order petitions. After completion of the urgent matters, Courts take up final hearing matters. Probably, on 6-7-1995 the trial Court could find time at 4.30p.m. to hear the arguments on behalf of the petitioner in the said suit. Probably, the Court below had realised that only 30 minutes time was available and in that context seems to have asked the Counsel for the petitioner to provide xerox copies of the decisions so that the Court could go through those decisions in advance and posted the matter on the next day i.e., 7-7-1995. Seeking of xerox copies by the Court cannot be construed as if the Court has formed an opinion. This request of the Court is being considered as if the Court has taken a definite view. The entire gist of alienations made in the affidavit, in my view, has no basis at all. Therefore, I have no hesitation to hold that this is a most malicious application filed by a party against the Presiding Officer making out a ground for seeking transfer while attributing mala fides against the Presiding Officer when the entire evidence and arguments on behalf of the plaintiff were completed. It is surprising to note that instead of getting ready with the case on 7-7-1995, the petitioner has made yet another attempt to get the vakalat filed by two new advocates, consent being given by the advocate on record, only with the sole intention to seek adjournment from 7-7-1995, on which date the case is posted for hearing. The Court below, in my view, has rightly rejected the request, having regard to the conduct of the party, who has been trying her best to prevent the Court from disposing of the said suit which is of the year 1986.
13. The entire background discloses that the intention of the petitioner is to delay the matter as long as possible. The modus operandi adopted by the petitioner is sufficient to hold that the petitioner has not approached the Court with clean hands. The petitioner has taken the Courts for a ride and designed to achieve her objective of getting the case transferred from that Court to another Court without there being any substance in her request for transfer. Therefore, in my view, this is a fit case where the Courts shall not entertain and encourage this type of malicious applications seeking transfer of a particular case from one Court to another Court.
14. Interestingly, petitioner having unsuccessfully moved the Chief Judge, City Civil Court, Hyderabad by way of transfer O.P. No. 640 of 1995 seeking transfer of the said suit O.S. No. 1407/86 from the file of the VII Assistant Judge, City Civil Court, Hyderabad to any other Court, has made yet another attempt by filing LA. Nos. 685, 686, 703 and 706 of 1995 seeking to reopen the suit reserved for judgment by its order dated 7-7-95 to receive documents, for reopening the evidence and to recall P.W.I and D.W.I respectively. Those applications were dismissed by the Court below on 7-9-95,7-7-95,13-7-95 and 13-7-95 respectively, against which CRP Nos. 3524, 3525, 3498, and 3499/95 respectively have been filed before this Court. While disposing of the above CRP No. 3525/95, the trial Court was directed by this Court to hear the arguments on behalf of the petitioner's counsel before pronouncing the judgment. As far as the other CRPs are concerned, they are dismissed as withdrawn. Despite the above order in the said CRPs dated 28-10-1995, the petitioner did not give up her idea of seeking transfer of the suit OS. No. 1407/86. The series of steps taken by the petitioner is to frustrate rendering judgment in the said suit which has reached a finality. I have, therefore, no hesitation to reiterate the view expressed by me earlier that this is a malicious petition filed by the petitioner wantonly and deliberately to dodge the matter for an indefinite period.
15. the decisions cited by the Counsel for the petitioner, no doubt, discuss the situation warranting withdrawal of cases from one Court to another Court. I am afraid, the facts in this case are presenting a totally different scenario and therefore, those decisions cannot be made applicable to the present set of pleadings made in the affidavit filed in support of seeking transfer of OS. No. 1407 of l986.
16. Having regard to the above discussion, I do not see any merits in this Tr.C.M.P. and the same is accordingly dismissed with exemplary costs of Rs. 5,000/- to be paid by the petitioner to the Legal Aid Board, High Court of Andhra Pradesh within a period of two weeks from today and obtain necessary receipt to that effect. The petitioner shall produce the said receipt before the Court below before obtaining the certified copies of judgment and decree that would be made available to her after pronouncing the judgment in O.S. No. 1407 of 1986 by the VII Assistant Judge, City Civil Court, Hyderabad. The VII Assistant Judge, City Civil Court, Hyderabad shall incorporate the imposition of exemplary costs of Rs. 5,000/- to be paid by the petitioner herein in the judgment and decree that would be passed in the said suit, so as to ensure payment of costs imposed by this Court while disposing of this Tr.C.M.P.
17. Office to communicate a copy of this order to the VII Assistant Judge, City Civil Court, Hyderabad immediately.