Allahabad High Court
Manoj Singh vs District Judge Balrampur, Distt. ... on 1 February, 2023
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 452 of 2023
Petitioner :- Manoj Singh
Respondent :- District Judge Balrampur, Distt. Balrampur And 19 Others
Counsel for Petitioner :- Vijai Bahadur Verma
Counsel for Respondent :- Dileep Kumar Pathak
Hon'ble Manish Mathur,J.
Heard learned counsel for petitioner and Ms. Archana Rawat holding brief of Mr. Dileep Kumar Pathak, learned counsel for opposite party No.18.
In view of order being passed, notices to opposite parties No.1 to 17, 19 and 20 stand dispensed with.
Petition under Article 227 of the Constitution of India has been filed challenging the order dated 19.01.2023 passed by the District Judge concerned rejecting the application for transfer of case under Section 24 of the Code of Civil Procedure (hereinafter referred to as, "Code") filed by the petitioner who is plaintiff in Regular Suit No.86 of 2022.
Learned counsel for petitioner submits that the aforesaid suit had been filed by the petitioner seeking permanent injunction against the defendants and in view of urgency in the matter, ex parte interim injunction was also granted to the petitioner-plaintiff on 23.05.2022. It is submitted that thereafter, despite there being 18 defendants in the suit proceedings only three defendants i.e. defendant Nos.15, 16 and 17 have put in appearance while service has not yet been effected upon rest of defendants. It is further submitted that answering defendants have filed an application under Order XXXIX Rule 4 of the Code and the petitioner-plaintiff has also filed an application for commission which are pending consideration. Another application for impleadment under Order I Rule 10 (2) of the Code has also been filed which is also pending consideration. However, it is submitted that as has been stated in the application under Section 24 of the Code that the trial court is in a great hurry to decide the matter with the case being posted every second or third day. Learned counsel has drawn attention to order-sheet of trial court to indicate that all the cases listed before the trial court are being posted with time gap of at least 10-12 days and therefore, there was no occasion for the trial court to have posted this particular suit after every two days which has caused great apprehension in the mind of petitioner-plaintiff against the court concerned. It has been further submitted that a reading of the impugned order will indicate that the apprehensions of petitioner-plaintiff have not been addressed properly by the District Judge concerned.
Learned counsel appearing on behalf of answering opposite party has refuted the submissions advanced by learned counsel for petitioner with the submission that the answering opposite party has filed an application for vacation of ex parte temporary injunction in which it has been clearly stated that the temporary injunction was obtained by the plaintiff by concealing the material facts particularly the fact that it is in fact the answering defendant which is in possession over the property in question. It is submitted that as such it is expedient that the matter be decided at the earliest and there is no error of law being committed by the trial court.
Considering the submissions advanced by learned counsel for parties and upon perusal of material on record, it appears that application for transfer of case under Section 24 of the Code has been filed primarily on the ground that the trial court is posting this particular case after every two days whereas a time gap of at least 10-12 days is maintained even in older cases which are pending since the year 2003 onwards. Apprehension has been expressed by the petitioner-plaintiff against the learned trial court Judge with regard to aforesaid. It is evident from the application for transfer that posting of the case after every second day is creating the aforesaid apprehension due to which the application has been filed. However, it is also evident from record that the answering defendants have filed an application for vacation of interim ex parte temporary injunction primarily on the ground that the same has been obtained by concealing material facts. This appears to be primary reason for the District Judge having rejected the transfer application. However, a reading of the order-sheet of the trial court does not indicate that the matter is being posted for hearing on the application for vacation of ex parte temporary injunction. On the contrary it appears that application for impleadment under Order I Rule 10 of the Code as well as application filed by the petitioner-plaintiff for commission are under consideration. It also appears that the temporary injunction order passed earlier is being extended on every date.
With regard to transfer application, this Court in the case of Ram Prakash vs. District Judge Balli and 16 Others reported in [2015 (1) ARC 103] has held as follows:-
"Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. (Rajkot Cancer Society vs. Municipal Corporation, Rajkot AIR 1988 Gujarat 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP 448; and, Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Culcutta 26)."
Upon applicability of aforesaid judgment in the present facts and circumstances, it is evident that apprehension of the petitioner-plaintiff is only on account of the fact that the case is listed after every two days. The General Rule (Civil) applicable upon the trial court does not preclude any trial court Judge from posting a matter after every second day particularly when an application for vacation of ex parte temporary injunction has been filed and applications for impleadment as well as commission are also pending in the suit for permanent injunction. The impugned order has correctly recorded the fact that the plaintiff has filed the transfer application apparently on imaginary apprehension.
No exception can be found to order impugned. In the aforesaid, the petition being devoid of merit is dismissed at the admission stage itself.
Order Date :- 1.2.2023
Saurabh Yadav/-
