Smt. Shabana Khatoon vs The District Election ...
2013 Latest Caselaw 1688 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?A.F.R. 
 
Court No. - 14 
 
Case :- APPLICATION UNDER SECTION 24 C.P.C. No. - 29 of 2013
 
Petitioner :- Smt. Shabana Khatoon
 
Respondent :- The District Election Tribunal/D.J.Ambedkar Nagar & Others
 
Petitioner Counsel :- Ram Raj,Vivek Srivastava
 
Respondent Counsel :- Manish Kumar,Mahendra Kumar,Mahendra Pratap Singh,Shishir Chandra,Syed Irfan Ahmad
 

 
Hon'ble Saeed-Uz-Zaman Siddiqi,J.

The instant petition under Section 24 of the Code of Civil Procedure demonstrates crookedness of a mischievous litigant to stall the proceedings before none else but the learned District Election Tribunal/District Judge, Ambedkar Nagar.

Heard learned counsel for both the parties and perused the records.

The petitioner is facing election petition which is pending before learned District Judge, Ambedkar Nagar and numbered as Election Petition No.4 of 2012. It is alleged in the affidavit that she has a reasonable apprehension that she might not get justice from learned District Judge, Ambedkar Nagar on the ground that he did not like the petitioner's filing of writ petition no.159 (MS) of 2013. She has also filed writ petition nos.659 (MS) of 2013, 7064 (MS) of 2013 and 1251 (MS) of 2013. It is further alleged that the learned District Judge somehow dealing with the matter in most capricious manner and remained biased against the petitioner which is corroborated by a series of events and orders passed by the learned District Judge. It has further been alleged that "in fact, the opposite party no.2 has contrived the affairs."

Upon receipt of transfer petition comments were called for from the learned District Judge in which he has mentioned:-

"This is a transfer application against me in Election Petition No.4 of 2012 Nabeela Khatoon versus Shaban Katun and others pending in this court which is fixed for evidence of the opposite party/applicant since 18.12.2012. It is noteworthy that Code of Civil Procedure restrict to only three adjournments. But she has already taken more than half a dozen adjournments on the ground that her representation is pending before the Secretary, Secondary EducationBoard regarding her age as the minimum requirement to contest the election was 30 years while the evidence given by petitioner prima fasciae reveals that she is under age. After the closure of petitioner's evidence she moved the Hon'ble high court in W.P. (M/S) no.7064/2012 which the Hon'ble Court finally disposed of applicant's petition directing the Secretary, Secondary Education Board to dispose of her representation regarding her age within two months same said to have been decided against her. But in the meantime she again moved the Hon'ble High Court in a fresh Writ Petition (M/S) No.159 of 2013 wherein Hon'ble court directed me to decide her application for adjournment which was decided by me against her as the application was nothing to delay the proceedings. Thereafter petition again moved the Hon'ble court in fresh Writ Petition (M/S) No.659 of 2013 wherein I was directed to wait till the disposal of her representation by Secretary, Secondary Education Board, Consequently I adjourned the case for 26.2.2013. Now this application has been moved with false and frivolous reasons.

At no stage she expressed any apprehension of injustice. But now she has alleged that on 24.2.2013 at 5.45pm petitioner and one Chand Mian were seen to be coming out from the residence of District Judge. But the truth is that I left my residence for going to Lucknow at 3 PM on 24.2.2013 regarding a talk with Hon'ble Chairman of Infrastructure Committee regarding infrastructure in the district court and also for a courtesy call and came back in morning of 25.2.2013 at 9AM. Thus allegations leveled are based on presumptions and application has been moved to delay the proceedings.

Hon' the High Court also also Hon'ble Supreme Court are repeatedly emphasizing for expeditious disposal of cases. And election petitions are important nature of cases. If the petitions allegations are correct then she has played the crime against democracy. At my level it is not judicious to transfer the petition to some other court because allegations are leveled falsely to tarnish my image despite my impeccable integrity. Her conduct is of the level of contempt of this court as she has also given a false affidavit which I leave for the Hon'ble court to decide in case she moves the Hon'ble court.

Hence the application is rejected with a liberty to move Hon'ble High Court within a week. Election Petition is fixed for 5.3.2013 for applicant's evidence."

A copy of order sheets filed by the petitioner contained as Annexure No.14 shows that issues have been settled on 15.11.201 and since then the evidence of the petitioner-PW-1 was recorded on 15.12.2012. The case was adjourned at the instance of the petitioner on 20.12.2012 to 1.1.2013 when she did not led evidence and submitted copy of order of this Court. Learned District Judge adjourned the case for 7.1.2013 and on this date the case was adjourned to 10.1.2013 as last opportunity as lawyers were boycotting the Courts. Again learned District Judge adjourned the case on the application of the petitioner to 14.1.2013 and again to 18.1.2013 and then on 21.1.2013. The orders passed by learned District Judge have been filed to show that on 21.1.2013 learned District Judge passed a detailed order and rejected the adjournment application of the petitioner paper no.30-C and slated the case for 29.1.2013. Again learned District Judge has been kind enough to adjourn the case at the request of the petitioner to 31.1.2013, 2.2.2013 and 26.2.2013. She is repeatedly seeking adjournments upon adjournments and the learned District Judge is liberally granting adjournments. She has filed a number of writ petitions which have been disposed of by this Court with certain directions. The orders passed by this Court show that the petitioner is repeatedly attempting to delay the disposal of the case and there are no cogent reasons for the petitioner to get the case adjourned. She did not deter to make allegation against the learned District Judge that her opponent was found coming out of the chamber of learned District Judge on 24.2.2013 when he was attending a meeting presided over by Hon'ble Chairman of Infrastructure when the allegations were made. This is contumacious. Cases are meant for disposal not for delay disposal and in election matters the quick disposal is requirement of law as nothing would happen if the election petition is delayed for a period of term for which period person has been elected, which is under challenge. 

In Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust and Others, (2008) 3 SCC 659, the Hon'ble Apex Court has held as under:-

"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 evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order.

In Maneka Sanjay Gandhi v. Rani Jethmalani, (1979) 2 SCR 378, this Court stated: (SCC P.169, para 2)

"2. Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case."               

The Hon'ble Apex Court has further held as under:-

"Parliament has therefore, invested this Court with the discretion to transfer the case from one Court to another if that is  considered expedient to meet the ends of justice. Words of wide amplitude- for the ends of justice-have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone."   (emphasis supplied).

This Court in Sunil Kumar Jolly v. District Judge, Lucknow and Others [2013 (31) LCD 82], has held as under:-

"Transfer of case cannot be treated as a matter of course. A case can not be transferred from a Court of law unless concrete and cogent reasons are established by the party, seeking transfer. In para no.5 of the writ petition, the petitioner himself has admitted that the case was adjourned by the learned Presiding Officer on few dates. In the later part of the para, it is mentioned that "the petitioner has ultimately come to know that the opposite party no.3 has personally impressed the present presiding officer of the Court of 14th Additional District Judge, Lucknow, and himself stated that he will eject the petitioner within few months." The language of this sentence is, in itself contumacious. In subsequent paras of the writ petition, it is evident that the petitioner being tenant is getting the case adjourned on one pretext or the other and lastly he has resorted to file writ petition. It has also been mentioned in para 1 of the writ petition that the petitioner has prayed for time to file rejoinder affidavit and no time was granted. Nothing has been mentioned as to what sort of rejoinder the petitioner has admitted to file and it comes under which provision of the Provincial Small Causes Court Act or the Code of Civil Procedure. No unusual ground could be placed through this writ petition except the growing tendency of the tenant to get the matter delayed on one pretext or the other. The disgusting part of the writ petition is that the petitioner has unnecessarily dragged the learned Presiding Officer into controversy, in such a fashion that the question mark may be put upon his integrity and, as such, the writ petition deserves to be thrown summarily."

In this case this Court has relied upon the law laid down by the Hon'ble Apex Court in Maneka Sanjay Gandhi's case (supra) and Kulwinder Kaur's case (supra). In the above said case this court has also observed as under:-

"The paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone."

While deciding the above mentioned case this Court has also observed as under:-

"In Ramarameshwari Devi and others v. Nirmala Devi and others, (2011) 8 SCC 249, the Hon'ble Apex Court has held:-

"We are clearly of the view that unless we ensure that wrong- doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases."

This court has to dispel the common impression that a party by obtaining an order based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab, (2000) 5 SCC 668 the Hon'ble Apex court was constrained to observe that perjury has become a way of life in our courts. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoer.

The common man's general impression about litigation is "Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road".

In view of the observations as made above, it is abundantly clear that the petitioner has wasted precious time of the Court in filing this unrealistic petition. The Courts have to go a long way in controlling tendency of introducing false pleadings which can only be curbed by imposition of cost which would control unnecessary litigation. By adopting realistic and pragmatic approach the opposite party no.3 had to engage a lawyer. I have to broadly take into consideration the prevalent fee structure of the lawyers and misc. expenses which have to be incurred by an innocent litigant who has been dragged into unnecessary controversy. Though, the opposite party no.3 has not filed any counter affidavit in this case, yet, he has engaged a lawyer and he has filed counter affidavit in recently dismissed as withdrawn misc. case no.84 of 2012. I find a cost of Rs.10,000/- must be imposed upon the petitioner and directions be issued to learned Trial Court to proceed with the case on day to day basis so as to decide the matter expeditiously."

Before parting with the instant case I may mention that case cannot be adjourned by judicial tribunal waiting for an order to be passed by the State Government. This is the experience of this Court that in last 40 years, a new breed of litigants has cropped up. Those, who belong to this breed, do not have any respect for truth. They shamelessly resort falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new generation of litigants, the Courts have, from time to time evolved new rules and, it is now well established that the litigants, who attempt to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, are not entitled to any relief, interim or otherwise. I find force while holding this, by the law laid down in Dalip Singh v. State of U.P. (2010) 2 SCC, 114 by Hon'ble Supreme Court.

With these observations the application under Section 24 of the Code of Civil Procedure is dismissed. I refrain from passing any orders regarding costs particularly in view of the fact that learned counsel for the petitioner Sri Ram Raj has made statement that applicant shall not seek any adjournment before the learned District Judge on any condition whatsoever. Writ petition is dismissed in view of the aforesaid undertaking. Learned District Judge is directed to proceed with the case preferably on day to day basis and shall not adjourn the case for want of counsel as it is the duty of the parties to keep their counsel ready with the case.

Order Date :- 6.5.2013

Ram.