Madhya Pradesh High Court
Sudarshan Jain vs Deep Chand Jain And Ors. on 4 April, 2005
Equivalent citations: AIR2006MP6, AIR 2006 MADHYA PRADESH 6, 2006 A I H C 702
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. A short and straightforward question that arises for consideration in this writ petition preferred under Article 227 of the Constitution of India is whether the learned District Judge, Tikamgarh in M.C.C. No. 3/2005 has committed any kind of illegality and infirmity by rejecting the prayer under Section 24 of the Code of Civil Procedure (in short 'the CPC) on the ground that the application filed by the petitioner was not supported by an affidavit and the respondent had filed the affidavit in support of his stance and further the grounds mentioned in the application of transfer are founded on figment of imagination of the defendants.
2. The factual scenario that has been depicted in the petition is that the non-applicants instituted Civil Suit No. 3A/79 against the petitioner for eviction from the suit premises and the said suit was decreed on 17-11-1981 and in pursuance of the said decree possession of the said suit shop was taken over by them. It is contended that the possession was taken over by the non-applicants by force which led the petitioner to file an application under Order 21 and Rules 99 and 100 read with Section 151 of the CPC claiming recovery of possession of the suit shop and also for compensation of Rs. 100/- per day. The respondents controverted the assertions. It is urged that the said proceeding is pending before the learned trial Judge for several years and the respondents chose not to adduce evidence in the case. On 10-1-2005 the respondents stated before the Court that they did not intend to adduce any evidence and by such statement the evidence of the respondents was closed and the case was fixed for argument on 21-8-2005. It is contended that the case has been adjourned from time to time at the instance of the respondents as they had the intention to procrastinate the proceedings. In this obtaining factual matrix the petitioner filed an application under Section 24 of the CPC before the learned District Judge, Tikamgarh stating that the case pending in the Court of Civil Judge, Class I, Tikamgarh should be transferred to another competent Court at Tikamgarh as he had reasonable apprehension that he cannot get justice from the said Court. It was mentioned in the petition that the case was being lingered and the petitioner had filed an application under Order 7 Rule 14 (3) of the CPC which was fixed on 17-2-2003 but the same was not. entertained and the case was fixed for final argument. It was also stated that the petitioner made a prayer on 21 -2-2005 that he had engaged Mr. C.D. Mishra, Advocate, from Jabalpur to argue the case and his Vakalatnama had been filed. A prayer was made to adjourn the case to first week of March, 2005 so that the advocate so engaged could come from Jabalpur to argue the matter. The said prayer was also turned down without any justification and the petitioner was directed to argue the case.
3. It was the further stand in the application that the respondent No. 1, Deep Chand Jain, has very close relations with the Presiding Officer and visits his house frequently and, therefore, he has no faith in the Court and feels he would not get justice. The learned District Judge by the impugned order observed that the application) filed under Section 24 of the CPC was not supported by an affidavit; that the respondent had filed an affidavit; that the petitioner was trying to linger the proceedings; and that the allegations were not founded on any kind of particularity and accordingly declined to entertain the prayer.
4. When the matter was listed on the first day it was thought seemly to have the assistance of an amicus curiae and accordingly appointed Mr. M.L. Jaiswal, learned Senior Counsel as amicus curiae to assist the Court.
5. I have heard Mr. R.K. Samaiya, learned counsel for the petitioner and Mr. M.L. Jaiswal, learned Senior Counsel as amicus curiae.
6. Questioning the pregnability of the order it is submitted by Mr. Samaiya that the learned District Judge has grossly erred by coming to hold that the petitioner had not filed an affidavit whereas the respondent had filed an affidavit by which it means that the pleadings of the respondent was given more credence which should not have been done. It is urged by him that had the Court expressed his intention that the case was going to be decided by affidavits as contemplated under Order 19, Rules 1 and 2 of the CPC, then the petitioner would have come forward with the affidavit. It is his further submission that the learned District Judge did not appreciate the gravity of the situation and erroneously declined to transfer the case from the Court of Civil Judge, Class-II to some other Court at Tikamgarh. It is propounded by him that the learned District Judge has unjustifiably come to hold that the petitioner was making efforts to linger the proceeding whereas the petitioner has the real interest to get the proceeding over as he has been dispossessed forcefully by the respondent. Mr. Samiya has placed reliance on the decision rendered in the cases of Smt. Sudha Devi v. M.P. Narayanan AIR 1988 SC 1381.
7. Mr. M.L. Jaiswal, learned amicus curiae submitted that the finding of the learned District Judge that there might have been adjournment sought by the respondent and the same might have been refused but when an application under Section 24 of the CPC is filed for transfer of the ease the legality or illegality of the orders are not to be really gone into and in any case, that cannot form the substratum of transfer. Mr. Jaiswal submitted that though allegations have been made that the non-applicant. Deep Chand Jain, has been in visiting terms with the Presiding Officer and, therefore, the petitioner had felt that justice would not be done without any kind of specific and precise assertions and in the absence of any particularity the application is not tenable. The learned Senior Counsel further submitted that in the case of this nature as the application filed should be supported by an affidavit. Reliance has been placed by the learned amicus curiae on the decisions rendered in the cases of Peethadhishwar Shri Swami Swaroopanand Saraswati v. Ramji Tripathi Lal Bihari Tripathi now calling himself Swami Shantanand Saraswati ; Rajkot Cancer Society v. Municipal Corporation, Rajkot ; Pushpa Devi Saraf v. Jai Narain Parasrampuria ; and Gorella Veerraju v. Velugubantla Chandrakantham .
8. The thrust of the matter is whether the transfer sought for by the petitioner under Section 24 of the CPC is correct and sound to invite the indulgence of the learned District Judge. Section 24 of the CPC confers general power to transfer, withdraw the suits and appeals or other proceedings at any stage on the application of the party and the powers of the High Court and District Judge are concurrent. The said power can also be exercised suo motu. An exercise of power under Section 24 of the CPC is distinct and should be exercised by the Court with extreme care and caution. The reasonableness of the grounds put forth to be scanned with studied scrutiny.
9. It is to be borne in mind though the onus of establishing sufficient grounds is heavily on the applicant but it is not necessary to prove any definite bias. It is requisite that the applicant should show genuine apprehension. The apprehension has to be reasonable. In the case of Ratanlal v. Suresh Kumar it has been held that transfer can only be ordered when the party has reasonable apprehension that justice would be denied to him. The mere fact that the party has suspicion in this regard would not constitute a valid ground for transfer. The assertion that the learned Judge has taken a particular view in the case is no ground for transfer. A judicial order passed by a Judge cannot legitimately be made the foundation for a transfer application. The proper remedy against it is by way of an appeal or revision.
10. In the case of Gorrella Veerraju, (Supra) the Bench expressed the view as under:
9. 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 would suffer huge expenses and face difficulties which invariably would lead to injustice if the suit has been filed in a particular Court for the purpose of working injustice to opposite party. The party seeking transfer has reasonable-apprehension that he will not get a fair trial or the transfer is designed for the convenience of the parties or transfer is needed to avoid conflicting decisions.
11. In the case of Rajkot Cancer Society, (supra) it has been held as under:
It must be borne in mind that transfer of a case from one Court to another is a pretty serious matter because it casts indirectly doubt on the integrity or competence of the Judge from whom the matter is transferred. This should not be done without a proper and sufficient cause. If there are good and sufficient reasons for transferring a case from one Court to another, they must be clearly set out. Mere presumptions or possible apprehension could not and should not be the basis of transferring a case from one Court to another. Only in very special circumstances, it may become necessary to transfer a ease from one Court to another. Such a power of transfer of a case from one Court to another has to be exercised with due care and caution bearing in mind that there should be no unnecessary, improper or unjustifiable stigma or slur on the Court from which the case is transferred.
12. In the case of Jagatguru Shri Shankaracharya Jyotish Peethadhiswar v. Shri Swaini Swaroopanand Saraswati (supra) in Paragraph 12 it has been expressed as under:
12. Another factor that has to be taken into consideration is the interest of justice. A case has to be transferred if there is reasonable apprehension of a party to a suit that he might not get justice in the Court where the suit is ending. This may be because the trial Judge is prejudicial or because there in the surcharged atmosphere no fair trial is possible at that place. This Court in Raghunandan v. G.H. Chawla 1963 MPLJ (Notes) 117 has held as under:
The learned District Judge lost sight of the well recognised position that the question whether the apprehension entertained by an applicant that he might not get justice at the hands of a particular Judge, was a reasonable apprehension or not had to be determined on such material as was on record and on the explanation of the Judge concerned. The onus of establishing sufficient grounds for transfer lay very heavily on the applicant. No amount of imaginary suspicion or capricious belief could be permitted to be raised as a ground for transfer. The view, in the circumstances on record, taken by the learned District Judge was as capricious as the feeling of the applicant seeking transfer.
13. In view of the aforesaid pronouncement of law as far as the allegation that the learned trial Judge has rejected certain applications cannot be considered for transfer of the case. The finding recorded by the learned District Judge that the petitioner was making endeavour to procrastinate the proceedings, in my considered opinion, is totally immaterial for adjudication of the controversy in this case. What really has arisen for adjudication is whether the allegation made against the Presiding Officer warrants transfer and should have been allowed by the learned District Judge. What the real ground is that the respondent No. 1, Deep Chand Jain, has been visiting the house of the learned trial Judge. It is, in fact, a plea of bias a stand relating to prejudice and stance of mala fide. As has been pleaded, this has created an apprehension in the mind of the petitioner. As has been stated, it is well settled that a case ought to be transferred when a party reasonably apprehends that he is not likely to have a fair trial before a particular Court. Narration of facts clearly exposits that the petitioner was aggrieved by certain orders passed by the learned trial Judge and also by certain adverse remarks because he refused the application for adjournment on the ground that a counsel from Jabalpur would be conducting the proceeding. The said ground cannot be treated to be a justified ground for transfer. The residuary issue that remains is in the realm of apprehension founded on bias and prejudice. Submission of Mr. Samaiya, learned counsel for the petitioner is that there was no necessity to file an affidavit and the affidavit could have been filed if the learned District Judge would have stated that he was going to decide the applications on affidavits. It is worth noting here that the learned trial Judge had stayed his hands when the allegations were made. It is also worth noting that under Section 24 of the Code it has been asserted that after refusing adjournment the learned trial Judge asked the petitioner to leave the Court and heard the other side. Despite the prayer made by the petitioner he did not accept the same. The said facet or aspect cannot be a ground for transfer. The same can always be challenged on merits whether the adjournment should have been granted or not. Grounds of bias or apprehension has been stated in a very casual and perfunctory manner, as if the petitioner wanted to establish the genuineness by building a tower in Spain or castle in the air. Submission of the learned counsel for the petitioner is that the learned District Judge has emphasised on the affidavit filed by the respondents and, therefore, opportunity should have been afforded to the petitioner to file an affidavit. I need not advert to the said submission as the basic concept of Order 19 Rules 1 and 2 of the CPC is not applicable to the case at hand and the submission on that score by Mr. Samaiya is absolutely misconceived and. therefore, the decision cited in that regard is not to be dwelled upon. As has been stated earlier, heavy onus lies on the person who seeks transfer under Section 24 of the CPC and moreso, when allegations are made against the Presiding Officer. The petition under Section 24 of the Code has been brought on record as Annexure P/4. The said grounds find place in Paragraph 5. In the said paragraph it has been stated that the non-applicant, Deep Chand Jain, has been in visiting terms with the Presiding Officer and the Presiding Officer is influenced by him and there is no hope on the part of the petitioner to get justice. The grounds urged, to my mind, appear to be absolutely nebulous, unclear, indefinite and unspecific. When these types of allegations are made the petitioner would have been well advised to file an affidavit. He has chosen not to do so. It is well settled in law, allegations regarding mala fide or bias are easy to make but difficult to prove. Making allegations against judicial officer is a serious affair. Faith in the adjudicating authority is sine qua non in the justice dispensation system. The tenor of the petition clearly indicates that the application had been filed making such a casual and nebulous allegation against the presiding officer which is not only undesirable. The petitioner being well aware of things has not filed the affidavit. Apart from that, allegations also, as has been stated, are quite vague. This kind of petition is not to be given credence in the absence of proper proof as the same would bound to develop a tendency and a proclivity to file petitions with vague allegations and seek transfer of the case. That is neither the intendment nor the purpose of Section 24 of the CPC. Spacious and mercurial submission of Mr. Samaiya, no affidavit was necessary and the petitioner has lost faith on the learned trial Judge is noted to be rejected as the requirement of law is that apprehension must be reasonable, sanguine and genuine. It cannot be in the realm of imagination.
14. It is to be always kept in mind that there should be a reasonable ground to justify the plea of apprehension in the mind of a party to a judicial proceeding about the dealing of the proceeding of a Judge. This must be in the realm of actuality. A fanciful idea, an imaginary suspicion or capricious plea can never be equated with the conception of reasonable apprehension. In the case at hand, the petitioner chose not to file the affidavit. When allegations are made against a judicial officer responsibility has to be owned. A petition cannot be filed under these circumstances without being supported by an affidavit. The party may take the path of deviancy and without any demur follow the way of tersgiversation. Quite apart from the above, it is also to be kept in mind that the High Court while being the disciplinary authority has to protect the subordinate judiciary has also a duty to safeguard their interest. If wild allegations are accepted and cases are transferred on the basis of nebulous pleadings, in my considered opinion, a dent is created in the mind of trial Judge and that would tantamount to failure of discharge of duty of the High Court. Such kind of wild allegations are not to be allowed to have free-play as if the freedom is totally free, bereft of any responsibility sans any accountability and shorn of any conscious and condign thinking.
15. Taking total stock of the fact situation and appreciating the depiction of the chronology of the evidence, in my considered view, the learned District Judge has not committed any error by refusing to entertain an application under Section 24 of the CPC and accordingly, I have no hesitation in giving stamp of approval to the same. Ergo, I do not find any merit in this writ petition and the same stands dismissed in limine.