Allahabad High Court
Sahzadey Hussain And Others vs Hari Shankar Gupta And Others on 28 November, 2022
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 6
Case :- TRANSFER APPLICATION (CIVIL) No. - 29 of 2022
Applicant :- Sahzadey Hussain And Others
Opposite Party :- Hari Shankar Gupta And Others
Counsel for Applicant :- Saima Saher,Anurag Pandey,Sudarshan Singh
Counsel for Opposite Party :- Manoj Kumar Sharma
Hon'ble J.J. Munir,J.
Order on Restoration Application No.5 of 2022
Heard counsel for the parties.
Perused the affidavit filed in support of restoration application.
Cause shown is sufficient. The order dated 10.10.2022 is hereby recalled and the application is allowed.
The case is restored to its original file and number.
Order on Transfer Application
This transfer application has been moved asking for transfer of Misc. Case No.02 of 2016, under Order XXI, Rules 97, 101 and Section 151 C.P.C., a third party objection made in Execution Case No.1 of 2015 i.e. proceedings between the judgment debtor and the decree holder.
The judgment debtor is the tenant and the decree holder is the landlord. The decree has become final inter partes with the second appeal said to be dismissed in default, as asserted in paragraph 9 of the counter affidavit. The second appeal has not been restored. It appears that applicant, who is a trespasser and has been handed over the premises by the judgment debtor, asserts an independent right. It is for the Court concerned to examine his right and that is not the subject-matter of this transfer application. The transfer has, however, been sought by the third party-objector on the ground that the decree holder-landlord is an Advocate practicing at the Civil Court, Sambhal at Chandausi, having a very long practice to his credit. Learned Counsel for the applicants says that he finds it difficult to secure a fair hearing before the Court at Chandausi because of the personal influence of the decree holder with member of the Bar being a senior member.
Mr. Manoj Kumar Sharma, learned Counsel appearing on behalf of the opposite parties submits that influence of decree holder can be best judged by the fact that litigation has been continuously going on for the last 42 years and despite all the allegations of influence that have been made by the applicants, the opposite parties have not been able to recover possession of their property till date. Mr. Sharma has invited the attention of the Court to the order sheet of Case No.2 of 2016 where the orders dated 22.12.2016, 31.1.2027, 20.2.2017, 19.8.2017, 28.8.2017, 6.11.2017, 16.12.2017, 5.1.2018, 13.4.2018, 24.12.2018, 21.12.2018 and 24.7.2019 to show that the case is being unnecessarily adjourned at the instance of third party-objector. There is an order dated 23.9.2017 recorded which shows that the Counsel for objector is seeking repeated adjournments to produce evidence.
Upon hearing learned counsel for the parties, this Court finds little substance in the applicants' allegation that opposite party on account of his presence at the Bar having a long practice is in a position to influence the proceedings. It is writ large on the face of the proceedings, that the opposite party with all influence as a member of the Bar that he may be credited with by the applicant, has not been able to recover the possession of his property, though winning against the tenant throughout. It appears that the applicant who asserts independent right to the same property is now delaying proceedings. This Court has no reason to believe that there is any case of undue influence by the opposite party on the Courts at Sambhal.
In the circumstances, this application is disposed of with a direction to the trial court to expedite the proceedings of pending Misc. Case No.02 of 2016 and proceed with the same fixing two dates of effective hearing every week. The case shall be decided within three months of the date of production of a copy of this order, after hearing learned Counsel for the parties.
Order Date :- 28.11.2022
SP
