Back
IN THE HIGH OF MADHYA PRADESH
Sujoy Paul, J.
Narayan Acharya v. Kishanlal and others
Writ Petition No.6624 of 2012 (Gwalior);
Decided on 1.10.2012.
It is crystal clear that mere allegation, apprehension or suspicion is not enough to order transfer of a case in a mechanical manner. Applying the aforesaid litmus test laid down by the Courts in aforesaid matters will show that the petitioner’s contention is not based on any reasonable apprehension. The petitioner himself could have prayed at the time of adjudication of first appeal to transfer and post the matter before other Presiding Judge. No such prayer was made. Upon remand, he participated in the proceedings. His application under Order 39 rules 1 and 2 CPC was allowed. Upto this stage he never raised his eye-brows nor prayed for transfer of the matter. At a later stage on 18.6.2012 he prayed for transfer on the basis of certain grounds.
I am unable to hold that petitioner was able to show any reasonable apprehension or reason on which transfer was necessary. It is clearly an afterthought by the petitioner to file an application, Annexure P-5. Therefore, there is no error of law in Annexure P-1 whereby application under section 24 CPC is rejected.
If the application for transfer is granted as a matter of course or on mere demand of a party, it will not be in the interest of justice. Such applications may be filed for Bench hunting or avoiding a particular Judge. Considering the aforesaid, test is laid down by Supreme Court that mere demand is not sufficient and certain ingredients should be satisfied before such application is allowed. (2008)3 SCC 659 and (2010)8 SCC 401 followed. 2001(I) MPWN 35 and AIR 1996 A.P. 34 relied on. 2009(3) JLJ 347 distinguished.
(2) Constitution of India -- Art.227 -- scope of plausible and permissible reason assigned in impugned order -- power of judicial review should not be exercised as appellate Court -- in cases of jurisdictional error, serious procedural irregularity or impropriety or palpable perversity -- interference can be made. (2010)8 SCC 329 followed. [Para 16
¼1½ flfoy izfdz;k lafgrk] 1908 && /kkjk 24 rFkk 25 && dh O;kfIr && iwoZ esa dk;Zokfg;ksa esa Hkkx fy;k && vk-39 fu-1 rFkk 2 ds v/khu vkosnu eatwj fd;k x;k && vk-14 fu-5 rFkk vk-6 fu-17 ds v/khu nksuksa vkosnu [kkfjt fd, x, && dsoy ,sls vfHkdFku] vk’kadk ;k lansg ij && ckn ds izdze ij ekeys ds varj.k ds fy;s vkosnu && ekeys ds varj.k ds fy;s dksbZ vk/kkj ugha && vk’kadk ;qfDr;qDr gksuh pkfg, && ,slk vkosnu [kkfjt djus esa dksbZ =qfV dkfjr ugha dh xbZA
;g ikjn’kZd Li”V gS fd dsoy vfHkdFku] vk’kadk ;k lansg ;kaf=d jhfr ls ekeys ds varj.k ds vkns’k ds fy;s i;kZIr ugha gSA mi;qZDr ekeyksa esa U;k;ky;ksa }kjk vf/kdfFkr mi;qZDr fyVEkl ij[k ykxw djus ij nf’kZr gksxk fd ;kph dk izfrfojks/k fdlh ;qfDr;qDr vk’kadk ij vk/kkfjr ughaA ;kph izFke vihy ds U;k;fu.kZ;u ds le; Lo;a varj.k djus rFkk ekeyk vU; ihBklhu U;k;k/kh’k ds le{k fu;qDr djus dh izkFkZuk dj ldrk FkkA ,slh dksbZ izkFkZuk ugha dh xbZA izfrisz”k.k ij] mlus dk;Zokfg;kas esa Hkkx fy;kA vkns’k 39 fu;e 1 rFkk 2 ds v/khu mldk vkosnu eatwj fd;k x;kA bl izdze rd mlus dHkh Hkh viuh vkifRr ugha mBkbZ vkSj u gh ekeys ds varj.k ds fy, izkFkZuk dhA 18-6-2012 dks ckn esa izdze ij dfri; vk/kkjksa ds vk/kkj ij varj.k dh izkFkZuk dh xbZ gSA
eSa ;g Bgjkus esa vleFkZ gw¡ fd ;kph fdlh ;qfDr;qDr vk’kadk ;k dkj.k n’kkZus esa leFkZ esa Fkk ftlls varj.k vko’;d FkkA ;kph }kjk vkosnu izLrqr djuk] mikca/k ih&5 ;g Li”Vr% vuqcks/k gSA blfy,] mikca/k ih&1 esa fof/k dh dksbZ =qfV ugha gS ftlds }kjk flfoy izfdz;k lafgrk dh /kkjk 24 ds v/khu vkosnu [kkfjt fd;k gSA
;fn varj.k ds fy;s vkosnu vf/kdkj ds :i esa ;k i{kdkj dh ek¡x ij eatwj fd;k tkrk gS] ;g U;k;fgr esa ugha gksxkA ,slk vkosnu U;k;ihB dks lrkus ;k fo’ks”k U;k;k/kh’k dk ifjotZu djus ds fy;s gks ldrk gSA mi;qZDrkuqlkj fopkj dj] mPpre U;k;y; }kjk ij[k vf/kdfFkr dh gS fd dsoy ek¡x i;kZIr ugha gS rFkk ,slk vkosnu eatwj djus ls iwoZ dfri; la?kVdksa dh rqf”V dh tkuk pkfg,A ¼2008½ 3 ,l lh lh 659] ¼2010½ 8 ,l lh lh 401 vuqlfjrA 2001 ¼1½ e-iz- ohDyh uksV~l 35 rFkk , vkb vkj 1996 vka/kz izns’k 34 voyafcrA 2009 ¼3½ ts ,y ts 347 izHksfnrA
¼2½ Hkkjr dk lafo/kku && vuq- 227 && dh O;kfIr && vk{ksfir vkns’k esa lek/kkudkjd rFkk vuqKs; dkj.k fn, x, && vihy U;k;ky; ds :i esa U;kf;d iquewZY;kadu ugha fd;k tkuk pkfg, && vf/kdkfjrk fo”k;d =qfV] izfdz;kRed xaHkhj vfu;ferrk ;k vuSfpR; ;k lqLi”V foi;ZLrrk ds ekeyksa esa && gLr{ksi fd;k tk ldrk gSA ¼2010½ 8 ,l lh lh 329 vuqlfjrA ¼iSjk 16
1. By filing this petition under Article 227 of the Constitution, the petitioner-plaintiff has challenged the order dated 17.7.2012 passed in Miscellaneous Civil Case No.12/2012 by the Court below. By the impugned order the petitioner’s application preferred under section 24 CPC for transferring the said matter was rejected by the Court below.
2. The necessary facts for adjudication of this matter are as under :
The petitioner preferred a suit for declaration and permanent injunction against the respondents. The defendants-respondents filed an application under Order 7 rule 11 CPC, which was allowed by the trial Court on 8.11.2011. The petitioner feeling aggrieved by the said order dated 8.11.2011 preferred First Appeal No.315/2011 before this Court. A Division Bench of this Court by order dated 13.4.2012 allowed the appeal and remitted the matter back for further proceeding. The petitioner, on remand, started participating in the matter. The petitioner on 19.6.2012 filed an application under Order 14 rule 5 CPC, which was disallowed by Court below on 19.6.2012. The petitioner preferred yet another application under Order 6 rule 17 CPC for amendment in the pleadings which was also rejected by the Court below on 20.6.2012. In the present petition it is alleged that the perusal of the order sheets whereby aforesaid applications preferred under Order 14 rule 5 CPC and Order 6 rule 17 CPC are rejected would show that the trial Court was prejudiced with the petitioner. It is further alleged that the trial Court is conducting proceedings on day to day basis which shows its prejudice against the petitioner. In para 5.7 of writ petition it is stated that the learned Court on several occasions orally stated that the orders of the trial Court are set aside at the instance of the petitioner and this attitude of the trial Court shows its bias. The application preferred under section 24 CPC dated 18.6.2012 is Annexure P-5. The respondents-defendants filed their reply, Annexure P-6, on 10.7.2012. Shri Pawan Dwivedi submits that the application under section 24 CPC (Annexure P-5) was filed along with written submissions (Annexure P-6) on the same date. In nutshell, it is stated that the Court below is biased and the learned District Judge has erred in rejecting the application under section 24 of CPC. In support of the contention, the judgment of Supreme Court in (2008)3 SCC 659 (Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust and others), and judgment of this Court reported in 2009(3) JLJ 347=2009(5) MPHT 450 (Vishnu Goyal v. Jyoti Sharma (Smt.) and another), are relied upon.
3. Per Contra, Shri N.K. Gupta, learned counsel for the respondents No.4 to 8 supported the order passed by the Court below and relied on certain judgments.
4. I have heard learned counsel for the parties at length and perused the record.
5. In the application under section 24 CPC (Annexure P-5) the petitioner has prayed for transfer of the matter for following reasons only :
(i) The civil suit of petitioner was rejected by the trial Court because earlier application of defendant under Order 7 rule 11 was allowed. This order was set aside by the High Court on 13.4.2012 and matter was remitted.
(ii) Earlier an application of petitioner preferred under Order 39 rule 3 CPC was considered by the trial Judge and a conditional direction was given but the Court fixed the matter on 8.11.2011 and in the meantime the sale-deed was executed. On 8.11.2011 the trial Court without any basis rejected the suit.
(iii) On remand by the High Court by order dated 13.4.2012 the District Judge has again assigned the matter to the same trial Judge, which is not proper and on the basis of circumstances which speak for themselves, the matter needs to be transferred in the interest of justice.
6. If Annexure P-5 is examined in juxtaposition of the written submissions (page 43), it is clear that the written submissions were not filed along with the application
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
