Delhi High Court
Harash Talwar vs Rani Gadhoke on 17 March, 1998
Equivalent citations: 73(1998)DLT167, 1998(45)DRJ621
Author: Manmohan Sarin
Bench: Manmohan Sarin
JUDGMENT Manmohan Sarin, J.
1. This is a petition under Section 38-B of the Delhi Rent Control Act read with Article 227 of the Constitution of India, moved by the petitioner for transfer of his pending appeal before the Rent Control Tribunal, Delhi to another Additional Rent Control Tribunal, Delhi.
2. The factual matrix of the case may be briefly noticed:
(i) Petitioner preferred an appeal before the Rent Control Tribunal against dismissal of his objections to the warrants of possession, issued under Section 21 of the Delhi Rent Control Act.
(ii) The appeal was last fixed for arguments on 15.5.1997, on which date petitioner's counsel was held up in the High Court. The Rent Control Tribunal did not accede to petitioner's request for a pass-over and for the case to be taken up at 12.30 pm. He proceeded to hear the respondent's counsel and, thereafter, fixed the case for orders on 9.7.1997.
(iii) Petitioner's counsel reached the Tribunal at 2.00 pm., when respondent's counsel had already been heard and the case reserved for orders. He was told that he could argue the appeal the next day, i.e. on 16.5.1997.
(iv) Petitioner's counsel was heard on 16.5.1997 in the absence of respondent or his counsel. Petitioner's version is that during arguments, his counsel sought some clarification from him, when the learned Rent Control Tribunal asked his counsel, "Who is this man?" On the counsel informing that he was the appellant, the learned Rent Control Tribunal told the petitioner in a harsh tone, "Keep quiet or else I will throw you out." Petitioner submits that he was only trying to give some information to his counsel on being asked to do so. Petitioner further avers that after some time, the learned Rent Control Tribunal again shouted at the petitioner saying, "The receipts are clearly forged. Either you come within seven days and report to me withdrawing this appeal or 1 will hold you guilty of forgery and will put you behind bars." Petitioner claims that since he had done nothing wrong, least of all forgery, he was unable to withdraw the appeal. (v) Petitioner submits that from the foregoing it would be seen that the learned Rent Control Tribunal had adopted a hostile and threatening attitude. The petitioner was being coerced and threatened into withdrawing the appeal, failing which he was threatened of being put behind bars. In these circumstances, petitioner has a reasonable apprehension that he would not receive justice from the learned Rent Control Tribunal. Hence, this petition for transfer.
3. Notice in the transfer petition was issued and reply has been filed by the respondent. The comments of the learned Rent Control Tribunal were called for. and have been received.
4. Petitioner had earlier filed an affidavit of his counsel dated 4.10.1997, wherein the facts related to the counsel in the transfer petition were stated to be true. Petitioner, was permitted to file a more comprehensive affidavit of his counsel, Mr. K.B. Andley, with regard to the entire incident. Learned counsel in his affidavit dated 5.3.1998 has confirmed the incident dated 16.5.1997 as well as the words attributed to the Rent Control Tribunal, as given in this petition.
5. Before dealing with the submissions made by learned counsel for the parties, it would be appropriate to notice the comments received from the learned Rent Control Tribunal. The learned Rent Control Tribunal has confirmed that since the appellant/petitioner's counsel was not present on 15.5.1997, respondent's counsel was permitted to address the arguments in the presence of the appellant. This procedure is sought to be justified in view of the difficulty experienced in securing the presence of both the counsel simultaneously. The learned Rent Control Tribunal also confirms that the case had been adjourned on 15.5.1997 to 9.7.1997 for orders, but on appellant's counsel appearing in the afternoon, he was permitted to address the arguments on 16.5.1997.
6. Learned Rent Control Tribunal has denied the allegations made by the petitioner with regard to the incident of 16.5.1997, as being totally false and sheer concoction. Further, the allegation of threatening the petitioner of being held guilty of forgery and being put behind bars is denied as false and concocted and defamatory in nature. The learned Rent Control Tribunal has commented that he had simply sought the response of petitioner's counsel on typed receipts and a handwritten receipt, which appeared to have additions besides the typing was in different type ribbon. Learned Rent Control Tribunal states that he had simply asked the counsel to give his response after perusing the three receipts and if, prima facie, it appeared to be true, it would be better to advise his client to compromise the matter and seek time from the respondent for vacating the premises in a reasonable time. The learned Rent Control Tribunal has also stated that he has no objection in case the appeal is withdrawn from him and transferred to another Tribunal.
7. Respondent, in the reply filed to the petition, has stated that the present petition is yet another attempt to abuse the legal process. It is stated that this is a case where the petitioner had taken the premises for a limited period of three years in 1978 and by sheer abuse of the legal process, he has been able to delay vacating the tenanted premises all this while. It is stated that there has already been one round of litigation, entailing of application/objections, revision in the High Court and finally dismissal of the Special Leave Petition of the petitioner by the Apex Court. Respondent has furnished details of proceedings in the matter as well as orders passed, where the conduct of the petitioner has been adversely commented upon by the subordinate courts as well as this Court.
8. I have heard learned counsel for the parties and have carefully gone through the pleadings as well as the material on record. I have also perused the comments furnished by the learned Rent Control Tribunal.
9. Learned senior counsel for the petitioner, Mr. KTS Tulsi, has submitted that petitioner's version of the incident, as reproduced in the petition, has been duly supported by the affidavit of a highly respected counsel. Even the learned Rent Control Tribunal has not denied the factum of the incident, but denied the words attributed to him and stated to have been spoken by him. Learned counsel has further argued that it is clear from the comments made by the learned Rent Control Tribunal that he has been unduly affected by the allegations levelled against him, which are described by the Rent Control Tribunal as sheer concoctions and defamatory in nature. He has sought to dispel any hostile attitude or having preconceived notions and prejudging issues. It would, therefore, in the interest of the learned Presiding Officer himself if the case is transferred.
10. Learned counsel for the petitioner has placed reliance on Pushpa Devi Saraf v. Jai Narain and Ors. (1992 (2) SCC 677), where the Apex Court, without going into the question of allegations made in the transfer petition as well as the correctness or otherwise of the orders passed, directed the transfer on the ground that the learned Presiding Officer appeared to be unduly affected by the allegations levelled against him.
11. Learned senior counsel appearing for the respondent has refuted the allegations made and pointed out that petitioner was a habitual litigant, who was bent upon frustrating the legal process and the present petition was filed once it became clear to the petitioner that the matter had been argued and orders reserved and it would not be possible for him to delay the proceedings further. It is urged that the petitioner has been able to defeat the legal process for a period of nearly seventeen years. Learned counsel relied on Gurdit Singh v. Khem Chand (AIR 1934 Lahore 493), wherein the Court held that the onus for establishing sufficient grounds for transfer lies on the appellant and be must prove reasonable apprehension of not getting justice. The Court observed that, "there was no material from which it could be said that the subordinate judge had been guilty of any dereliction of duty in the conduct of the trial, as would be sufficient to create any reasonable apprehension in the mind of the petitioner." The Court also considered the factor that not only the evidence of the parties had been closed but even arguments had been heard and it would be most inadvisable at such an advanced stage when judgement only is to be pronounced, the case is transferred to another judge. Learned counsel for the respondent further submitted that in the instant case petitioner should not be granted any indulgence on account of his conduct, which has been adversely commented upon by this Court in the earlier proceedings. Learned counsel submitted that there was no apprehension of any injustice since despite the respondent having been heard and the case having been reserved for orders, the learned Rent Control Tribunal accommodated petitioner's counsel and heard him fully on the next day. It may be noted at this stage that neither the respondent nor his counsel was present on 16.5.1997.
12. I have given my careful consideration to the averments made in the petition, the affidavits filed by the petitioner's counsel as well as the explanation tendered by the learned Rent Control Tribunal. I am of the view that even if the conduct of the petitioner has been adversely commented upon in earlier proceedings and petitioner has been able to unduly delay the relief to the respondent by legal strategems, such conduct alone cannot be made the basis for declining the petitioner's prayer for transfer unless the transfer petition filed is shown to be a false one and simply continuation of attempts to subvert the legal process.
13. Learned counsel for the respondent was admittedly heard in the absence of petitioner's counsel and the matter was reserved for orders, though the counsel for the petitioner was given the opportunity to argue the matter on the next day, but again in the absence of the respondent. Although this procedure of hearing one counsel or party in the absence of the other is sought to be justified on account of practical difficulties and for expediency, it leaves a lot to be desired and deserves to be shunned and eschewed.
14. While on the manner and conduct of judicial proceedings, a well-meaning judge, many a times, in his zeal and quest to render justice expeditiously, attempts to bring about a settlement between the parties and in doing this oversteps the limits of judicial restraint, thereby inviting criticism of exercise of undue pressure, display of bias and prejudice and even pre-judgement. In this context, the virtue of sobriety in a judge and observance of judicial restraint and objectivity during the conduct of judicial proceedings cannot be over-emphasized.
15. Coming to the question of allegations made in the petition, as have been reproduced in the earlier part of this order, the same are supported by an affidavit of petitioner's counsel, who is a respected member of the Bar. The learned Rent Control Tribunal has denied the use of words attributed to him. However, the factum of such an incident,"where the learned Rent Control Tribunal had the occasion to seek the response on receipts, which he considered as forged or not genuine, from the petitioner's counsel as well as the advise and suggestions made to petitioner's counsel to withdraw the appeal, are not denied. In view of the denial by the Rent Control Tribunal, it is not necessary to embark into any enquiry as to whether the words and expressions attributed to the learned Rent Control Tribunal were, in fact, used or not? The admitted facts and events and the manner of occurrence are such as to give rise to the apprehension of not getting justice in the mind of the petitioner.
16. The determining factor in an application for transfer of a proceeding is to assess whether the events, as reported, would give a cause of reasonable apprehension in the mind of the litigant that he may not get justice from the Court concerned. Confidence of both the parties as well as of the public being reposed in the Court is a vital element in the administration of justice. If the admitted events or facts are such as are capable of destroying the said confidence, then interference is called for. It may very often happen that the apprehension may not fully meet the strict legal standards. Yet, the said assessment has to be made from the point of view of the affected litigant. While judging the basis of the appellant's apprehension of not getting justice, Court should put itself in such a party's armchair to see how the events would affect the party's mind. Justice has not only to be done but it should be seen to have been done.
17. Applying the principles and the approach enunciated in para (16) above, and considering (i) the procedure adopted by the learned Rent Control Tribunal in hearing the matter and (ii) the elaborate comments received from him, replete with explanations and justification, tend to show that he has been greatly affected by the nature of allegations made, it would be in the interest of the Presiding officer as well as in the interest of justice if the transfer petition is allowed. This would be in consonance with the observations made by the Apex Court in Pushpa Devi Saraf (Supra). The learned Rent Control Tribunal, in the comments received from him, has also indicated his no objection to the appeal being transferred from him. Accordingly, I allow the petition and direct the case to be listed before Additional Rent Control Tribunal, Karkardooma Courts, Delhi. The record of the case be transferred forthwith to the Additional Rent Control Tribunal, Karkardooma.
18. Learned counsel for the petitioner has assured that petitioner's counsel would appear on the date fixed before the learned Additional Rent Control Tribunal and would conclude his arguments on the same day and no adjournment would be sought by the petitioner. Parties to appear before the Additional Rent Control Tribunal, Karkardooma on 31st March, 1998. The learned Additional Rent Control Tribunal would dispose of the appeal as expeditiously as practicable, but not later than one month from the date of this order. This would allay the apprehensions of the respondent of the matter being unduly delayed.
19. None of the observations made hereinbefore are to be taken in any manner as reflecting on the competence and integrity of the learned Rent Control Tribunal.