1987 Supreme(MP) 589

IN THE HIGH COURT OF MADHYA PRADESH
V.D. Gyani, J.
Jagesh Patel - Applicant
Vs.
The Gwalior Rayon Silk Manu. Co. Birlagaram Nagda - Non-applicant
M.C.C. No. 249 of 1987 (I)
Decided On : 15-12-1987

Headnote:(1) Civil Procedure Code, 1908 – S.24 – mere apprehension – no ground of transfer.

       (2) Civil Procedure Code, 1908 – O.41, R.5 – stay of execution granted imposing conditions pointed out – specific findings after hearing should be given.

        Short Note

       This is a petition under S.24 CPC, praying for transfer of Civil Appeal No. 9A of 1986, pending before the IVth Addl. District Judge, Ujjain, to some other Court of competent jurisdiction.

       2. Held: The petitioner had made a similar application before the District Judge, Ujjain, which has been dismissed by him, vide order dated 19 – 11 – 1987, passed in Misc. Civil Appeal No. 23 of 1987. A caveat was also filed in this case.

       3. Having heard Shri Chaphekar, learned counsel for the Caveator and Shri Bhartiya, learned counsel for the petitioner, I am of the view that no justifiable cause is shown for transferring the case. The apprehension which the petitioner has expressed in his affidavit that he would not get justice at the hands of Shri Shravankumar Jain, Addl. District Judge who was hearing the appeal, merely because he happened to have enjoyed the hospitality of the Company while on a visit to Nagda, is not well founded. The respondent in its reply while admitting the fact that some of the Judges of Ujjain had visited Birlagram Nagda for Darshan of the Sheshshayee temple and have also taken light refreshment in the guest – house, but they had paid the charges, the allegation that they were guests of the Company has been denied. In such circumstances, on a mere apprehension, it would not be proper to transfer the case.

       4. However, so far a, the question of affording a reasonable opportunity of hearing to the petitioner is concerned, there appears to be some justification in the grievance made by the petitioner. The appeal was preferred on 10 – 10 – 1986 and thereafter it was listed on 14 – 10 – 1986. No order on the stay application under O.41, R.5, CPC could be passed, as the petitioner – herein had filed a Caveat. The petitioner made an application, praying for copies of the appeal memo, stay application and the affidavit. The next date fixed was 17 – 10 – 1986, on which date the petitioner filed his reply to the stay application, supported by an affidavit. Thereafter 21 – 10 – 1986 was fixed for arguments on the stay application and on the same date an order staying execution of trial Court's decree dated 27 – 9 – 1986, was passed subject to certain conditions, fixing the appeal for final hearing on 17 – 12 – 1986. On 17 – 12 – 1986 Court's record was not received and the appeal had to be adjourned to 13 – 3 – 1987. On 13 – 3 – 1987, it was again adjourned at the request of learned counsel for both the parties and the case was posted for final hearing on 7 – 5 – 1987. The petitioner made an application on 7 – 5 – 1987 to the Court, pointing out that the respondent – appellant while availing of the stay order dated 21 – 10 – 1986, had not complied with the conditions imposed by the Court. The appellant was directed to submit receipts of deposits made by it and the appeal was posted for arguments on the application as well as for final hearing on 25 – 7 – 1987. As the petitioner’s counsel was not well, the appeal had to be adjourned for final hearing on 3 – 9 – 1987, when the Presiding Officer was on leave and the appeal was posted for orders on 7 – 9 – 1987 and thereafter it was listed for final hearing on 7 – 11 – 1987. The appellate Court, taking note of the fact that certain receipts were shown to the Court by the appellant – respondents' counsel, the Court came to the conclusion that it did not appear that the appellant had committed any breach of the order dated 21 – 10 – 1986 and dismissed the application moved by the petitioner.

       5. It was expected of the lower appellate Court to have specifically recorded as to how the conditions imposed by the order dated 21 – 10 – 1986 were complied with. It may be noted that the petitioner in his application dated 7 – 5 – 87, had very categorically stated that the ancillary benefits along with the salary, as ordered to be paid to the petitioner, were not deposited by the appellant – respondent, so also the salary for the month of February 1987 and November, 1987, had not been deposited. When there were some specific charges, it was incumbent on the Court to have given a finding thereon. The petitioner made yet another application dated 7 – 11 – 1987, a certified copy of which has been placed on record. It has also been referred to in the order dated 7 – 11 – 1987. By this application the petitioner made a grievance that the stay order, as granted by the Court below, did not meet the requirement of the decree as passed by the trial Court. The learned Judge felt that the application, was not based on any new grounds and no modification, therefore, in the order dated 21 – 10 – 86 was called for. Although, the Court has referred to certain receipts having been shown to it, but there is absolutely no indication as to the actual amount deposited by the appellant respondent and whether it fulfilled the conditions of the stay order, passed on 21 – 10 – 1986. In such circumstances, before hearing the appeal on merits, it was the duty of the Court to have seen that the conditions of the stay order were fully complied with by the appellant, more so when the petitioner had pointed out breaches of the stay order to the Court's notice. The grievance made by the petitioner in this behalf is well founded and is justified.

       6. In the circumstance the prayer for transfer of the appeal is rejected, but it is directed that the lower appellate Court shall now hear the appeal afresh, affording reasonable opportunity to hearing to the parties concerned and before fixing the case for hearing, shall see to it that the conditions imposed by it while passing the stay order were fully complied with by the appellant – respondent and shall also decide the petitioner's application dated 7 – 11 – 1987 afresh, in accordance with law, keeping in view the nature of the decree passed by the trial Court. Application partly allowed.