Allahabad High Court
Raja Ram And Ors. vs Ashok Kumar And Ors. on 10 November, 2014
Bench: Anil Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
RESERVED
Court No. - 18
Case :- APPLICATION UNDER SECTION 24 C.P.C. No. - 1 of 2013
Applicant :- Raja Ram And Ors.
Opposite Party :- Ashok Kumar And Ors.
Counsel for Applicant :- Aditya Tiwari
Counsel for Opposite Party :- A K Pandey,Rajiv Kumar Bajpai
Hon'ble Anil Kumar,J.
By means of the present petition filed under Section 24 C.P.C., the petitioner/application has sought for transfer of Misc. Case No.183/08 filed under Order 20 Rule 18 C.P.C. for preparation of final partition decree arising out the preliminary partition judgment and decree dated 14.02.2006 passed in Original Suit No.199/2000 along with Misc. Case No.30 of 2009 & 177/2011 pending before the Court of Civil Judge (Senior Division), Sultanpur.
Shri Aditya Tiwari, learned counsel for the applicants/petitioners has pressed the relief as sought by the applicants/petitioners on the following points :-
"The applications moved by the co-sharers under Order 20 Rule 18 C.P.C. for preparation of final partition decree on different dates including the application of the petitioners have been consolidated for its disposal on merits and during the pendency of the said applications, the petitioners requested that sharers of all co-sharers may be determined on the basis of their possession which are being held by them for about 50 years ago on spot.
The O. P. No.1 & O. P. No.3 who are practicing lawyer in Civil Court, Sultanpur started to make compel to the executing court to make partition of the dwelling house contrary to the possession of the co-sharers which are being possessed by them for about 50 years ago and in this connection the said both opposite parties started to make undue pressure on the Presiding Officer of the court concern and taking influence of being practicing lawyers in the said court, the said both opposite parties used to collect more than 100 Advocates on each & every date in the court room for compelling to the court to make partition of the properties in accordance to their wish contrary to the possession of the co-sharers.
The Presiding Officer has come into influence of the practicing Advocates including O.P. Nos.1 & 2 and he is compelling to the petitioners to give their consent for make final partition decree in according to the manner as it has been sought by O.P. Nos.1 & 2.
The O. P. No.1 is regular practicing lawyer in the Civil Court, Sultanpur which is evident from the Vakalatnama which has been filed by him in the Court of Civil Judge, Sultanpur and similarly the O.P. No.2 is also a regular practicing lawyer in the Civil Court, Sultanpur in ciriminal side which is evident from the Vakalatnama which has been filed by him in the Court of A.C.J.M., Room No.22 in a criminal case."
I have heard learned counsel for parties and gone through the records.
Section 24 is a general provision empowering the High Court or the District Court to transfer a case on the motion of any other party or on its own motion and applies to suits, appeals and other proceedings, including the execution proceedings.
Following have been held to be sufficient grounds for transfer :(i) convenience of parties and situation of property, (ii) bias of judge hearing the case, (iii) two suits involving common question, (iv) avoidance of delay and unnecessary expenses and (v) preventing abuse of process of the Court.
The transfer provision are such that they are intended to facilitate a party seeking transfer only when it satisfies the Courts that if the case is allowed to be adjudicated in the same Court, the party would invariably suffer irreparable injury and the transfer of a case from one Court to another indirectly casts doubt on the competence and integrity of the Judge from whom the case is sought to be transferred. Mere presumptions or possible apprehensions are not sufficient therefor ; only good and sufficient grounds, clearly set out in the order, may justify the transfer and a transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets fair and impartial justice.
In the case of Mahavir Prasad Singh v. Jacks Aviation Pvt. Ltd. A.I.R. 1999 S.C. 287, the controversy involved is that Bar Association had passed Resolution and boycotted member to appear before Court of Additional District Judge in which civil suit for recovery of possession was filed by appellant. Counsel for respondent being member of Bar Association filed transfer petition in view of boycott call given by Bar Association. The Counsel for the respondent who filed the said petition himself appear in the Court for addressing arguments nor did he depute any other advocate on his behalf, Additional District Judge dismissed transfer petition on the ground that there was no provision under Section 151, C.P. Code for transfer of case. Accordingly, the Apex Court held that the order passed by the Additional District Judge had no legal infirmity, much less any scope for occasioning failure of justice.
Thus, The power vested in the High Court under Section 24 C.P.C. is comprehensive and discretionary. The discretion to be exercised, as we all know, is a judicial discretion based on sound reasonings. While considering the question of transfer, the very bias which has to be law laid down for transfer of the same is to be considered and in the present case, the reason that opposite party no.2 is a practicing lawyer cannot be a ground for transfer when there is no concurrent reason that the said person in any manner may influence the proceedings of the matter and if on the said ground, the case is transferred then it is practically himself to get influence against the practitioner lawyer in a particular district as transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets fair and impartial justice.
In the instant matter, only plea raised for transfer of the case from the Court that the Presiding Officer is influenced by the opposite party nos.1 and 2 and from the averments as made in the transfer petition, the position which emerges out is that only bald allegation has been made in the petition and no any other cogent evidence has been given for the said purpose. So, on the said ground, the transfer application/petition cannot be allowed because the transfer of a case from one Court to another indirectly casts doubt on the competence and integrity of the Judge from whom the case is sought to be transferred. Mere presumptions or possible apprehensions are not sufficient therefor; only good and sufficient grounds, clearly set out in the order, may justify the transfer and a transfer should not readily be granted for any fancied notion of a litigant. It should be granted to ensure that the applicant gets fair and impartial justice.
For the foregoing reasons, I do not find any good ground or reason to interfere in the present petition/application, accordingly, the same is dismissed.
Order Date :-10.11.2014
Mahesh
