Point of law: Discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection.

JUDGMENT :

Saral Srivastava, J.

1. Heard learned counsel for the applicant.

2. The present transfer application has been filed by the defendant in Original Suit No. 689 of 2020 (Smt. Dimpal Kohali Vs. M/s Bold Leasing and Finance Pvt. Ltd.) pending before the court of Civil Judge (Sr. Division), Ghazibad. The transfer application has been filed on the ground that there is apprehension in the mind of the applicant that he may not get justice from the court of Civil Judge (Sr. Division), Ghazibad. The said apprehension is based upon the fact that in the aforesaid case, application under Order 7 Rule 11 CPC was filed by the applicant and the Civil Judge (Sr. Division), Ghazibad without hearing the application of the applicant under Order 7 Rule 11 CPC asked the defendant counsel not to evict the plaintiff from the property in question.

3. The further ground is that the application under Order 7 Rule 11 CPC was heard by the court of Civil Judge (Sr. Division), Ghazibad on 21.12.2020 and the case was fixed for hearing on application under Order 39 Rule 1 CPC on 22.12.2020. The counsel for the applicant when demanded the file of the case from the Reader of the court of Civil Judge (Sr. Division), Ghazibad to inspect the file, he denied the same stating that the file is with the Steno and 22.12.2020 is fixed. This conduct of Reader of the court created apprehension in the mind of applicant.

4. It is also alleged in the application that the opposite party is propagating in the compound of the court that he will get injunction in respect of whole property. The apprehension that the applicant shall not get justice cropped up in the mind of applicant on the basis of aforesaid pleadings.

5. Learned District Judge, Ghaziabad issued notices to the opposite party and has also sought report from the concerned court as there was allegation against the court on which transfer was sought. In the report, it was stated that application under Order 7 Rule 11 CPC was heard and order on the application under Order 7 Rule 11 CPC was uploaded on the website of the court.

6. After perusing the report of the concerned court and appreciating the facts on record, the District Judge came to the conclusion that no ground of transfer is made out.

7. The relevant extract of the order dated 18.1.2021 passed by the District Judge, Ghaziabad in Transfer Application No. 341 of 2020 is extracted herein below:-

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8. I have heard learned counsel for the applicant and perused the record.

9. Learned counsel for the applicant submitted that from the averments made in the transfer application, it is evident that the applicant shall not get justice from the court of Civil Judge (Sr. Division), Ghazibad which led the applicant to file the present transfer application under Section 24 CPC. He submits that the Apex Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and others, 2008 AIR (SC) 1333 has held that if there is a reasonable apprehension in the mind of applicant that he would not get justice from the court that is a sufficient ground for transfer of a case from that court.

10. The paragraph-14 of the of Apex Court judgement relied upon by the counsel for the applicant in the case of Kulwinder Kaur @ Kulwinder Gurcharan Singh (supra), is extracted herein below:-

".....14. Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evide