The principle of Res-judicata does not operate in respect of Transfer Applications, and the discretionary authority to set aside orders should be confined to special occasions where no remedy is available and damage is being caused to the party without any fault on his part.

The aforenoted two applications have been filed by the abovenoted two applicants praying that order dated 6. 12. 2007 passed by Honble Mr. Justice M. K. Mittal by which, his Lordship dismissed in default their Crl. Misc. Transfer Application Nos. 553 of 2007 and 554 of 2007, be set aside, they be restored and decided on merits after hearing the parties.

2. Heard Sri Mukesh Chand Gupta, Advocate for the applicants and Mohd. Israil Siddiqui, Addl. Government Advocate for the State.

3. It may be noticed from the record, that besides these transfer applications, which were respectively for transfer of the Criminal Misc. Case Nos. 612 of 2007 and 613 of 2007 pending in the Court of 1st Addl. Chief Judicial Magistrate, Mathura to some other districts, one of the applicant Harish Chandra Pathak had also filed five applications, given below, under section 482 Cr. P. C.

1. Criminal Misc. Application No. 13605 of 2007 2. Criminal Misc. Application No. 16603 of 2007 3. Criminal Misc. Application No. 13607 of 2007 4. Criminal Misc. Application No. 16602 of 2007 5. Criminal Misc. Application No. 13606 of 2007 4. With regard to these cases in which above applications were filed two other persons had also come before this Court under section 482 Cr. P. C.

5. The aforenoted applications under section 482 Cr. P. C. came up for hearing before Honble Mr. Justice M. K. Mittal and the Honble Judge by order dated 31. 10. 2007, ordered that the aforenoted two transfer applications be tagged along with applications under section 482 Cr. P. C. and the name of Sri M. C. Gupta, Advocate representing the applicants in the transfer applications, be shown as Counsel for the applicants and they all be listed for hearing on 14. 11. 2007. As will appear from the record, all these applications came up for hearing before Honble Mr. Justice M. K. Mittal finally on 6. 12. 2007, when Counsel for the applicants did not appear and Honble Mr. Justice M. K. Mittal disposed of these transfer applications too, along with applications under section 482 Cr. P. C. , by saying, since Sri Gupta did not appear to press these applications, they are also liable to be dismissed for default.

6. That is what brings the applicants here in the present applications.

7. Counsel for the applicants says that though these transfer applications were shown in the cause list for hearing on 6. 12. 2007, but he failed to mark them, and that is why he did not appear before the Honble Court. He also says that Honble Mr. Justice M. K. Mittal was sitting to hear applications under section 482 Cr. P. C. the Bench could not hear the transfer applications.

8. The learned Counsel has not referred to any provision of law under which these applications for setting aside the order of dismissal, have been given. At the top of the applications, there is a mention that the applications are being moved under section 151 Civil Procedure Code. These are criminal cases and the Civil Procedure Code will not apply. The reference of a provision of Civil Procedure Code, in a Criminal case is a little surprising. The principle of Res-judicata, does not operate in respect of Transfer Applications, and the parties concerned are at liberty to move fresh Transfer Applications, more particularly when the earlier have not been decided, on merits. The Counsel for the applicants has referred to the case of Ram Abhilakh v. State of U. P. and others, 2007 (57) ACC 867 (SC)=2007 (51) AIC 57 where it was mentioned that during the course of judgment, the order of Ex-parte dismissal of a criminal revision has to be set aside.

9. It has to be noticed that this order was passed in appeal and no application for seeking to set aside the order was being heard. It may, however, be acknowledge that the Court has a right to pass, such orders as necessary in the interest of justice, but exercise of such discretionary authority, has to be confined to special occasion, where no remedy is available and damage is being caused