Allahabad High Court
Sharda Prasad And Others vs District Judge Sultanpur And Others on 14 February, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 19 Case :- MATTERS UNDER ARTICLE 227 No. - 400 of 2023 Petitioner :- Sharda Prasad And Others Respondent :- District Judge Sultanpur And Others Counsel for Petitioner :- Madan Gopal Tripathi,Atma Ram Verma Hon'ble Manish Mathur,J.
Heard learned counsel for petitioners.
Affidavit of service, in pursuance to earlier directions, is taken on record which indicates that service having been refused by opposite parties No.2 and 3 in presence of court concerned. As such service is deemed sufficient on opposite parties No.2 and 3 although no one has put in appearance on their behalf. Notice to opposite party No.1 stands dispensed with.
Petition under Article 227 of the Constitution of India has been filed challenging the order dated 15.12.2022 passed in Misc. Case No.352 of 2022 whereby application for transfer of suit proceedings under Section 24 of the Code of Civil Procedure has been rejected.
Learned counsel for petitioners submits that petitioners had filed Regular Suit No.222 of 2018 for perpetual injunction in which an ex parte interim injunction had been granted on 14.03.2018 while issuing notices to the defendant No.2, who put in appearance and filed written statement on 22.09.2018.
Learned counsel for petitioners submits that during course of proceedings, when the case was listed on 01.08.2022, the next date fixed was 20.09.2022 but when the petitioners reached the court premises, they were informed that the file was not available. It is submitted that petitioners also came to know that an application for preponement was filed by the defendant and the date was preponed without giving any notice to petitioners-plaintiffs and next date fixed was indicated as 03.08.2022. It is submitted that on a number of occasions, the court file was not available which gave rise to apprehension to petitioners-plaintiffs that the presiding officer is in collusion with the defendant particularly when court file was found missing on 19.11.2022 which was the date fixed. It is submitted that having such apprehension the petitioners-plaintiffs filed application under Section 24 of the Code on 26.11.2022 which has been rejected erroneously by the impugned order.
Learned counsel for petitioners submits that even if the case was being preponed there was no occasion for the presiding officer to have cut the next date fixed on the order-sheet by hand. It is also submitted that the very fact that the court file was found missing on at least two occasions when the date was fixed also gave rise to reasonable apprehension to the petitioners particularly in view of the fact that justice should not only be done but also seem to have been done.
Upon consideration of submissions advanced by learned counsel for petitioners and perusal of impugned order, it appears that ex parte temporary injunction was granted to the petitioners-plaintiffs on 14.03.2018 which is continuing till date despite written statement having been filed on 22.09.2018. It is also relevant that the same presiding officer had granted ex parte interim injunction to the petitioners. The impugned order also indicates report having been filed before the District Judge, with regard to allegations levelled against him. The order also indicates that on 01.08.2022, although the next date fixed was 22.09.2022 but the defendants filed an application for preponement which after notice to the petitioners-plaintiffs, on 03.08.2022 was fixed on which date the petitioners did not appear and therefore, the next date of 22.08.2022 was fixed on which date also the petitioners did not appear due to which again the case was adjourned to 05.09.2022. The order also indicates that subsequently, issues were framed on 19.09.2022 whereafter 12.10.2022 was fixed and subsequently after few dates the case was fixed for 12.12.2022.
Much emphasis has been laid by learned counsel for petitioner that on 01.08.2022, the next date fixed was 20.09.2022 which has been specifically cut out and on 03.08.2022 has been indicted. From perusal of the impugned order as well as the order-sheet, it is evident that on 01.08.2022, an application for preponement of the case was filed by the defendants on which the date was preponed to 03.08.2022. However, it appears that not only on 03.08.2022 but subsequently also on 22.08.2022 and 05.09.2022, the petitioners-plaintiffs failed to appear before the court concerned due to which the case was adjourned. It does not appear that any order detrimental to the petitioners was passed by the Presiding Officer, in the meantime. It is also a factor that the suit proceedings as yet are only at the stage where issues have been framed and evidence has not yet commenced. Even otherwise from a perusal of the application seeking transfer, it appears that only an apprehension has been expressed by the petitioners-plaintiffs without any substantive cause for the same.
In the considered opinion of this Court, once an application for preponement of the case had been filed, which was incumbent upon the presiding officer to have decided the application and even otherwise no orders detrimental to the petitioners-plaintiffs have been passed in the meantime owing to preponement. The issue pertaining to preponement of any case is within the discretion of a presiding officer and no prejudice has been caused to petitioner due to such preponement.
With regard to transfer application, this Court in the case of Ram Prakash vs. District Judge Balli and 16 Others reported in [2015 (1) ARC 103] has held as follows:-
"Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. (Rajkot Cancer Society vs. Municipal Corporation, Rajkot AIR 1988 Gujarat 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP 448; and, Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Culcutta 26)."
Upon consideration of the aforesaid submissions and applicability of the judgment in the present facts and circumstances of the case, it appears that there is no concrete basis for seeking transfer of the suit and the application for transfer application has been filed only on the basis of apprehension which also does not appear to be correct.
In view of aforesaid, the petition being devoid of merits is dismissed.
Order Date :- 14.2.2023 Saurabh Yadav/-