Sukesh Ranjan Srivastava vs Smt. Pushpa Lata And 8 Others
2023 Latest Caselaw 17543 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:46519
 
Reserved on 26.05.2023
 
Delivered on 17.07.2023
 

 
Court No. - 18
 

 
Case :- TRANSFER APPLICATION (CIVIL) No. - 50 of 2023
 

 
Applicant :- Sukesh Ranjan Srivastava
 
Opposite Party :- Smt. Pushpa Lata And 8 Others
 
Counsel for Applicant :- S M Singh Royekwar,Saksham Agarwal
 
Counsel for Opposite Party :- Sanjay Kumar Srivastava,Akshat Kumar,Ram Prasad Dwivedi,Sanjay Kumar Srivastava
 
with 
 
Case :- TRANSFER APPLICATION (CIVIL) No. - 54 of 2023
 

 
Applicant :- Sukesh Ranjan Srivastava
 
Opposite Party :- Devesh Ranjan Srivastava
 
Counsel for Applicant :- S M Singh Royekwar,Saksham Agarwal
 
Counsel for Opposite Party :- Sanjay Kumar Srivastava,Akshat Kumar,Ram Prasad Dwivedi
 

 
Hon'ble Saurabh Lavania,J.

Heard Sri S M Singh Royekwar, Advocate assisted by Sri Saksham Agarwal, learned counsel appearing for the applicant and Sri Akshat Kumar, learned counsel appearing for the opposite party Nos. 7 to 9 namely Radhey Shyam Khanna, Kanishk Khanna and Manas Raj, respectively, in TRANSFER APPLICATION (CIVIL) No. 50 of 2023 (in short "T.A.C. No. 50 of 2023") and opposite party Nos. 2 to 4 namely Manas Raj, Kanishk Khanna and Radhey Shyam Khanna, respectively, in TRANSFER APPLICATION (CIVIL) No. 54 of 2023 (in short "T.A.C. No. 54 of 2023") as also Sri Ram Prasad Dwivedi, Advocate, who put in appearance on behalf of opposite party Nos. 2 to 6 namely Smt. Shashi Kala, Dr. Onkar Singh, Devesh Ranjan Srivastava, Amit Kumar Srivastava and Avneesh Kumar Srivastava, respectively, in T.A.C. No. 50 of 2023 and opposite party No. 1 namely Devesh Ranjan Srivastava in T.A.C. No. 54 of 2023.

Notice to the opposite party No. 1 namely Smt. Pushpa Lata in T.A.C. No. 50 of 2023 is hereby dispensed with, as Sri Sanjay Kumar Srivastava, Advocate and Sri Askhat Kumar, Advocate are representing the contesting opposite parties.

T.A.C. No. 50 of 2023 has been filed by the applicant/Sukesh Ranjan Srivastava under Section 24 of Code of Civil Procedure, 1908 (in short "CPC") regarding transfer of Regular Suit No. 1291 of 2021 (Sukesh Ranjan Srivastava vs. Smt. Pushpa Lata and others), which is pending in the Court of Civil Judge (Junior Division)/FTC, Bahraich, to any competent Court of nearby district preferably to District Balrampur.

It would be apt to clarify here that Regular Suit No. 1291 of 2021 was instituted by the applicant for cancellation of judgment and decree dated 28.04.2011 passed by Civil Judge (Senior Division), Bahraich in Suit No. 494 of 2006 (Smt. Kanak Lata vs. Satya Prakash and others).

T.A.C. No. 54 of 2023 has been preferred by the applicant seeking transfer of a Suit No. 1222/2021 (Sukesh Ranjan Srivastava vs. Devesh Ranjan Srivastava and others) filed by him seeking a decree of permanent injunction to any competent Court of nearby district preferably to District Balrampur, which is pending in the Court of Civil Judge (Junior Division)/FTC, Bahraich.

For disposal of both the cases, indicated above, the fact(s) and ground(s) seeking transfer of the case(s) from District Bahraich to nearby district preferably to District Balrampur are being considered from the averments made in the affidavit filed in support of T.A.C. No. 50 of 2023 particularly the averments made in paras 11 to 23, the averments made in paras 10 to 22 of the affidavit filed in support of T.A.C. No. 54 of 2023 are same. The relevant paras on reproduction are as under:-

"11. That opp. party no. 7 is a practicing Advocate in District Court at Bahraich. The said Opp. Party No. 7, with the help of other local members of the Bar, always tried to intimidate and prevent the deponent from doing pairavi of the case.

12. That the opp. party no.7 always created scene whenever the case was put up in the Court for hearing. Each time, he came to attend the proceedings accompanied with scores of other members of the Bar. The proceedings were always conducted in a hostile atmosphere and they hardly were smooth and fair for the applicant.

13. That even the local counsel for the applicant faces hostile atmosphere in the local Bar only because of the case in question. Only on much persuasion and request on behalf of the applicant through his pairokar, the said Counsel manages to conduct the proceedings in the face of such hostile atmosphere.

14. That it so happened that on 18.01.2023, the opp. party no. 7 to 9 alongwith his other accomplices committed criminal trespass into the suit property where the pairokar stays. Accompanied with a large number of unknown persons, on the gun point, they threatened the said pairokar to vacate the premises and stop doing pairavi of the case in question. The pairokar immediately informed the local Police over phone and in writing also with request to lodge FIR in the matter; however no FIR has been lodged till date. Application has been made by post thereafter to the local Police as also to the Superintendent of Police, Bahraich on 30.01.2023 and 03.02.2023, respectively. Still, no FIR has been lodged. True copy of the said applications dated 30.01.2023 and 03.02.2023 are marked and annexed herewith as Annexure No.8.

15. That the opp. party no. 4 also requested for lodging FIR of the incident occurred on 18.01.2023 by sending an e-mail on the official maid id of Director General of Police, UP, Inspector General of Police, Gorakhpur Zone, Deputy Inspector General of Police, Devi Patan Range and the Superintendent of Police, Bahraich, on 14.02.2023. However, no action has been taken on the said mail. True copy of the mail dated 14.02.2023 is marked and annexed herewith as Annexure No.9.

16. That no FIR has been lodged by the Police of the said incident on the application of the pairokar of the applicant, till date, only under the pressure of the local Bar which has passed resolution in a meeting held on 19.01.2023 in support of the said miscreants including the opp. party no. 7. The local Bar resorted to strike the work on 19.01.2023 as per resolution to pressurize the local Police and the Court concerned. True copy of the resolution passed by the local Bar Association on 19.01.2023 is marked and annexed herewith as Annexure No,10. It was strike of lawyers again on 23.01.2023 in furtherance to the same issue when the case was listed for hearing.

17. That the Police did not lodge any FIR in the matter till date, under the pressure of the opp. party no. 7 and the local Bar; however promptly lodged an FIR on 18.01.2023 itself against the pairokar of the applicant and his associates with false and untrue allegations under sections 147, 323,427,506,504,392 IPC vide crime no. 0022/2023 at Police Station- Kotwali Dehat, Bahraich. True copy of the said FIRs marked and annexed herewith as Annexure No. 11.

18. That on the eve the next scheduled hearing of the case on 03.02.2023, the local members of the Bar including the said opp. party no. 7 tried to galvanize the entire Bar in favour of the opp. party no. 7 with a view to create hostile atmosphere for the proceedings of the next day by moving application on 02.02.2023 before the President of the Bar for holding general body meeting. party no. 7 tried to galvanize the entire Bar in favour of the opp. party no. 7 with a view to create hostile atmosphere for the proceedings of the next day by moving application on 02.02.2023 before the President of the Bar for holding general body meeting. Upon the said application, the general body meeting of the local Bar was held on 13.02.2023. True copy of the document seeking interference of the Bar to this effect are marked and annexed herewith as Annexure No. 12.

19. That the applicant has come to know which he verily believes to be true, as is also reflected from the said application dated 02.02.2023 as referred in the preceding paragraph, that there is a long standing ruling/resolution/tradition of the District Bar at Bahraich that all the members of the Bar shall be deemed to be pairokar of any other member of the Bar in any criminal proceeding which is drawn against such Bar. The applicant is sure to not get a competent legal representation of his choice in the proceedings in question in the face of such attitude of the local Bar.

20. That in the wake of the said developments, neither the pairokar nor the Counsel could attend the Court proceedings of the case in question on the date fixed ie 03.02.2023. Next date was fixed in the matter for 20.02.2023. Certified copy of the relevant proceedings of the case in question to this effect are marked and annexed herewith as Annexure No.13.

21. That when on the next scheduled date of hearing ie 20.02.2023 also, the pairokar of the applicant reached the Court to attend the proceedings, he was accosted and heckled by the opp. party no. 7 and his unidentified aides in the court premises with life threats of dire consequences if he did not stop doing pairav of the cases. The incident as also the incident of 18.01.2023 has been reported to the Inspector General of Police, Gorakhpur Zone and Deputy Inspector General of Police, Devi Patan Range by post on 21.02.2023; however no action has been taken. True copies of the application dated 21.02.2023 are marked and annexed herewith as Annexure No. 14.

22. That it is because of the pressure of the local bar at the behest of opp. party no. 7 that no counsel is ready to appear for filing bail application for an associate of the pairokar of the applicant namely Kuldeep Gupta who has been arrested on 19.01.2023 pursuant to FIR lodged by the opp. party no.7. He is suffering incarceration in the circumstances. The applicant is in serious contemplation for filing appropriate application before this Hon'ble Court seeking transfer of the investigation and other connected court proceedings to some other district.

23. That it is most humbly submitted that there exists no conducive atmosphere in District Court, Bahraich for fair trial of the proceedings in question. The applicant faces scarce chance of competent legal representation of his choice in the court proceedings below. The right to legal representation of a counsel of his choice as also fair trial to a litigant has been hall mark of the judiciary of the country. It is fundamental, constitutional and legal right of the applicant to have competent legal representation through a counsel of his choice in the court proceedings and fair trial of the said proceedings in an atmosphere which is conducive, free and fair. It is submitted that in the prevailing circumstances, the proceedings of the case in question deserves to be transferred to some nearby district preferably to Balrampur in the interest of justice."

In response to the aforesaid, objection(s)/counter affidavit(s) have been filed by the contesting opposite parties. In rebuttal to objection(s)/counter affidavit(s), rejoinder affidavit(s) have also been filed reiterating earlier stand taken in the affidavit(s) filed in support of the application(s), under consideration.

The relevant paragraphs 10 to 17 of the objection/counter affidavit filed in T.A.C. No. 50 of 2023 on reproduction read as under:-

"10. That in reply to the contents of para 10 Affidavit in Support of the Application, it is respectful submission of the deponent is that although it is apparent from records that in pursuance of the compromise decree dated 28.04.2011, Smt. Kanak Lata and the family members including the deponent and Opposite Party No. 8 and 9 are in possession over the same and the name of Smt. Kanak Lata was also recorded in records of Nagar Palika Parishad, Bahraich against the house in question, and thereafter the Smt. Kanak Lata has also executed registered will in favour of the Opposite Party No. 8 and 9 with respect to house in question, in which Onkar Singh i.e. Opposite Party No. 3 was also one of the marginal witness and therefore the applicant is having no concern with the house in question but just with ulterior motive to harass the deponent and Opposite Party No. 8 and 9 and with the intention to grab the house in question with muscle power he filed Regular Suit No. 1222/21.

That it is made clear that there is no temporary injunction has been granted by the learned trial court in the aforesaid Regular Suit No. 1222/2021 or in Regular Suit No. 1291/2021. Both the regular suits have been merely been filed before the learned trial court and are pending since then.

11. That the contents of para 11, 12 and 13 of the Affidavit in Support of the Application are false, incorrect and misconceived, as framed, hence denied. However, it is made clear that the deponent is aged about 80 years and he has never created any hindrance or scene in the aforesaid Regular Suit No. 1291/21. Although the same are pending before the Court since 2021. But the applicant with the help of Opposite Party No. 3 and his sister's son Tejesh Kumar Singh who have sworn the affidavit in support of the present applicant is trying to grab the house in question, while dispossessing the deponent forcible with the help of unsocial elements.

12. That the contents of para 14, 15, 16, 17 and 18 of the Affidavit in Support of the Application are false, incorrect and misconceived, as framed, hence denied. However, it is submitted that the correct fact of the matter is that the Opposite Party No. 3 along with his Sister's Son (Bhanja) Tejesh Singh (named as Gijesh Singh in the FIR and who has sworn the affidavit in the instant applicant) entered the house in question in which the deponent along with his son (Opposite Party No. 8) were residing; on 18.01.2023 at around 10 am. The Opposite Party No. 3 was accompanied by Tejesh Singh as well as Kuldeep Singh (well known Mafia- Land Graber) and 15-20 other people and tried to dispossess the deponent and his son by threatening him pointing a gun on his head and thereafter beating him. They also looted his house. However, someone informed the police and by then by interreference of police, the peace of maintained however, the above mentioned people were successful in escaping. The FIR was registered same day i.e. on 18/01/2023 as FIR No. 0022/2023, against Onkar Singh, Gijesh Singh, Brother of Gijesh Singh, Kuldeep Gupta and 15-20 Unknown people. A Copy of the FIR No. 0022/2023 dated 18.01.2023 is being filed herewith as Annexure No. CA-5.

That thereafter police came into action and arrested Kuldeep Gupta on 19.01.2023, who was one of the wanted people and named in the FIR.

That it is relevant to mention here that the application dated 30.01.2023 and 03.02.2023 as mentioned under para 14 of the Affidavit in support of the application is apparently after thought to the FIR dated 18.01.2023 and arrest of Kuldeep Gupta. It is further relevant to mention here that application dated 30.01.2023 is backdated and mere copy pasted of the FIR with name changed.

That Opposite Party No. 4 who is staying in USA who has nothing to do with the said incident or anything is requesting to file a FIR after a period of one month seems by sending an email (as under para 15) is clearly an after thought. The same is being done with ulterior motive to linger on the whole proceedings and to harass the deponent as well as Opposite Party No. 8 and 9.

That it is further relevant to mention here that FIR was lodged on the illegal and criminal action/activity done by the accused and not on the pressure of the Local Bar. The statement made under para 17, itself states that no FIR has been lodged till date (on the pursuance of the application), it is apparent that the first application was only sent (if sent) by the Tejesh Singh only on 30.01.2023, on the incident which took place on 18.01.2023. To which an arrest was also made on 19.01.2023. Therefore, it is apparent that the applicant and his collusive partners are just making a story to cover their illegal actions and to linger on the proceedings in the Learned Trial Court.

That it is further relevant to mention here that the Bar Resolution that has been mentioned under para 16, it is specifically for the alleged incident dated 18.01.2023 in which the deponent who is a senior and respected lawyer of the Local Bar at Bahraich. Nothing has been mentioned regarding Civil Cases or the Regular Suits that are pending before the Learned Trial Court at Bahraich. It is further relevant to mention here that both the Regular Suit filed by the applicant are filed in the year 2021 and are pending since then. It is further relevant to mention here that Document Annexed as Annexure No. 12 to the transfer application also indicates about criminal case (that too of the alleged incident dated 18.01.2023), and nothing has been stated about civil cases.

That it is further relevant to mention here that Kuldeep Gupta that was arrested by the Police filed a bail application before Learned Trial Court in Bahraich, which was numbered as Bail Application No. 468/12A/2023. The same was rejected by a detailed order dated 14.03.2023 by the Incharge Additional Session Judge- IVth, Bahraich, after hearing the counsel for the Applicant, Informant and the State. Therefore, it is wrong to state that Local Bar is not allowing the Counsel not to appear in the matter against the Deponent. A Copy of the judgment and order dated 14.03.2023 is being filed herewith as Annexure No. CA-6.

That it is further relevant to mention that the accused Kuldeep Gupta filed a Bail Application before this Hon'ble Court which was numbered as Criminal Misc. Bail Application No. - 4207 of 2023, Kuldeep Gupta v/s State. This Hon'ble Court after hearing the learned counsel for the parties at length rejected the bail application of the accused vide judgment and order dated 10.04.2023. A Copy of the judgment and order dated 10.04.2023 is being filed herewith as Annexure No. CA-7.

That from the aforesaid facts, circumstances and material available on record it is clear that the FIR lodged by the deponent has truth in it rather than the false applications and email being sent by the applicant and his collusive partners just to safeguard themselves and to change the course of investigation and with the intention to linger on the proceedings at Learned Civil Court.

13. That the contents of para 19 and 20 of the Affidavit in Support of the Application are false, incorrect and misconceived, as framed, hence denied. There is no such tradition and mere belief of the applicant cannot be deemed to be a ground for legal representation. It is further relevant to mention here that the applicant has cleverly only annexed the order sheet of one particular date and not of the whole proceedings. The case is pending since 2021 and what have been till date, the same has nowhere been mentioned. The stage and proceeding of the case has not been mentioned at any stage.

That even at the cost of repetition the deponent is pointing out that there is no such Bar Resolution for Civil Cases and even in the Criminal Case, the counsel of Kuldeep Gupta was heard. It is also relevant to mention here that in both the regular suit as mentioned, the deponent has filed Written Statements and he is not seeking any adjournment in the Regular Suits that are filed by the applicant.

14. That the contents of para 21 of the Affidavit in Support of the Application are false, incorrect and misconceived, as framed, hence denied. However, it is relevant to mention here that the facts are concocted, self-made, forged, fabricated and baseless. The same has been done to harass the deponent. On the face of the story it is not possible for a 80-82 year old person to beat or heckle with someone so much younger to him. The person while drafting the earlier applications as well as this application forget about the fact of the age of the deponent. Even otherwise, the alleged incident never happened and is just a creative incident from the mind of the applicant.

15. That the contents of para 22 of the Affidavit in Support of the Application are false, incorrect and misconceived, as framed, hence denied. It is pertinent to mention here that it is admitted here that Kuldeep Gupta is associate of Tejesh Singh who was also named in the FIR. Kuldeep Gupta was represented by his counsel before Learned Additional Sessions Judge-IVh, Bahraich and his bail was rejected vide judgment and order dated 14.03.2023 and thereafter the bail of Kuldeep Gupta has also been rejected by this Hon'ble Court on 10.04.2023. (Both the orders has already been annexed with the Counter Affidavit). Therefore it is wrong to mention that the Local Bar is not coordinating or creating hindrance.

16. That the contents of para 23 of the Affidavit in Support of the Application are false, incorrect and misconceived, as framed, hence denied. The instant transfer application has been moved with ulterior motive and with the intention to harass the deponent and Opposite Party No. 8 and 9. The proceedings of Regular Suit No. 1291/2021 may not be transferred to any other district. The same is Transfer Application has no justified grounds but the same is misconceived and is a mere abuse of process of law and should be dismissed with heavy costs.

17. That it is also relevant to mention here that Regular Suit No. 1291/2021 is filed by the Applicant while making Opposite Party No. 2-6 as Respondent in the Regular Suit who also favour the applicant and is a collusive Suit. Therefore they are also Opposite Party here and are also favoring transfer of the aforesaid Regular Suit. It is evident as Onkar Singh (Opp. No. 3) came to beat the Deponent and is named in FIR. Devesh Ranjan Srivastava (Opp. No. 4) has sent the email to the DIG, Bahraich to register the complaint. Therefore, prima face it can be said it is a collusive suit.

That it is also relevant to mention here that as the question of house has already been decided by a Competent Court of Law by a Compromise Judgment and Decree dated 28.04.2011, therefore there is no question of mediation, as the application is just trying to abuse the process of law to harass the deponent.

Therefore, it is submitted that from the perusal of the facts and circumstances of the present case it is clear that the grounds taken by the applicant in the present Transfer Application are not tenable in the eyes of law and the present Transfer Application being misconceived and devoid of merits is liable to be rejected with cost."

The aforesaid averments are also form part of the objection/counter affidavit filed in T.A.C. No. 54 of 2023.

Sri S M Singh Royekwar, Advocate assisted by Sri Saksham Agarwal, learned counsel for the applicant while pressing the application(s) for transfer, in issue, stated that the opposite party No. 4 obtained a decree dated 28.04.2011 and on coming to know about the same, the applicant preferred two suits, one for cancellation of decree and another for permanent injunction. These suits were filed in the year 2021, in which, the contesting opposite parties have already filed their written statement. Now, the case is at the stage of evidence of the parties.

He further submitted that the opposite party No. 4 in T.A.C. No. 54 of 2023, who is opposite party No. 7 in T.A.C. No. 50 of 2023, is a leading lawyer of Civil Court at District Bahraich and the applicant is in genuine apprehension that he would influence the proceedings. Elaborating, it is stated that the opposite party No. 4 creates scene whenever the Court takes up the case for hearing. Each time, he came to attend the proceedings accompanied with scores of other members of the Bar. The proceedings were always conducted in a hostile atmosphere and were hardly smooth and fair for the applicant. Reference in this regard has been made to para 11 to 13 of the affidavit filed in support of T.A.C. No. 50 of 2023.

He further submitted that in relation to the property in suit, an incident took place and FIR was lodged on 18.01.2023 by the opposite party No. 7, who is a practicing lawyer at District Bahraich. Thereafter, one associate of pairokar of the applicant namely Kuldeep Gupta was arrested. Thus, it is an interference in proper assistance to the counsel concerned.

He further submitted that after the aforesaid incident, the local Bar passed a resolution (Annexure No. 12 to T.A.C. No. 50 of 2023). A bare perusal of the same would show that no Advocate would appear in the matter related to opposite party No. 7. He says that this resolution of Bar, which was passed in support of opposite party No. 7, specifically says that all the members of the Bar shall be deemed to be the pairokar of any other member of the Bar in any criminal proceeding and on account of resolution of Bar, the case(s) were adjourned twice i.e. on 03.02.2023 and 20.02.2023.

Learned counsel for the applicant Sri Royekwar further stated that right to legal representation through a counsel of his choice as also fair trial to a litigant has been hall mark of Indian judiciary. It is fundamental, constitutional and legal right of the applicant to have competent legal representation through a counsel of his choice in the Court proceedings and fair trial of the said proceedings in an atmosphere which is conducive, free and fair.

He says that from transfer of the case(s), the applicant would not be benefited in any manner because he would also travel to attend the proceedings from Lucknow, where he is residing at present, to the District to which the case(s) would be transferred. In these circumstances, the request of the applicant is genuine and bonafide.

It is lastly stated that considering the facts and circumstances of the case(s), in issue, indulgence of this Court is required. Prayer is to allow the application(s) seeking transfer of case(s).

In support of his submissions, Sri Royekwar has placed reliance on a judgment passed by the Hon'ble Apex Court in the case of Kulwinder Kaur v. Kandi Friends Education Trust reported in (2008) 3 SCC 659, relevant paragraph of which on reproduction reads as under:-

"23. 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 the plaintiff or the 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."

Sri Royekwar has also placed reliance on a judgment dated 24.09.2021 passed by the Hon'ble Apex Court in Transfer Petition (Criminal) No. 126 of 2020 (Ashfaq Husen and others vs. State of U.P. and another), the same on reproduction reads as under:-

"On hearing learned counsel for the petitioners, it was put to the learned counsel that in view of the given circumstances, including the order of detention under NSA reciting the ground reality and the episodes alleged to have occurred in the Court and the affidavits of the counsel for the petitioners, the transfer can be made to another place but there is no necessity to transfer it out of the State of U.P.. On such a query being put, learned counsel for the petitioners requests that the matter be transferred to Prayagraj, U.P.

Learned counsel for the State however, submits that there are nearer Districts to Lucknow where the matter can be transferred as the travelling distance between Lucknow to Prayagraj by the express way would still be over three hours. There are stated to be 173 witnesses.

On the aforesaid plea, learned counsel for the petitioners submits that the transfer to Barabanki or to Rai Bareilly would not give the best of legal assistance to the petitioners, which was available in Lucknow and can be made available at Prayagraj.

In the conspectus of all the facts and circumstances, it is found appropriate to transfer the trial of the case to the District Court, Prayagraj. U.P. Ordered accordingly.

The transfer Petition is, accordingly, allowed."

Opposing these applications for transfer, Sri Akshat Kumar, learned counsel appearing for the opposite parties, mentioned above, says that the applications have been preferred on mis-conceived grounds. He says that paragraph 11 to 13, which relate to Court proceedings, are completely vague. No incident occurred in the Court, in issue. From the relevant paragraphs of the affidavit(s) and the resolution of Bar, on which heavy reliance has been placed, it is apparent that no incident took place between the parties to the litigation even in Court campus and what to say about the Court room.

He further submitted that in support of the allegations made in paragraphs 11 to 13 as also in other paragraph of the affidavit(s) filed in support of the application(s), no affidavit of the counsel conducting the case(s) has been filed so as to substantiate that the applicant or his pairokar or any associate of the applicant or his pairokar was mishandled in the Court or he was given a hostile treatment. The applicant is under obligation to place before this Court an affidavit of his counsel in support of the allegations made against the contesting opposite parties that they created hindrance in the proceedings of the case(s).

It is further stated that an FIR was lodged by the opposite party-Radhey Shyam Khanna, aged about 82 years, who was mishandled and one person namely Kuldeep Gupta, who as per admitted case of the applicant, is the associate to the pairokar of the applicant, was arrested and thereafter, an application for bail was preferred by the local Advocate on behalf of this person, which was rejected by the Additional Sessions Judge-IVth, Bahraich on 14.03.2023 and thereafter, an application for bail before this Court was also preferred, which was also rejected on 10.04.2023. He says that the fact related to preferring an application for bail before this Court is not relevant. The fact pertaining to preferring an application for bail by a local Advocate is relevant, as the same proves that despite the resolution of Bar, upon which the case has been set up, an Advocate appeared on behalf of associate of pairokar of the applicant.

At this stage, Sri Royekwar, learned counsel appearing for the applicant says that the averments made in paragraphs 15 of the counter affidavit, which relates to Kuldeep Gupta, have been clarified in paragraph 15 of the rejoinder affidavit filed in T.A.C. No. 50 of 2023, which on reproduction reads as under:-

"15. That the contents of para-21 of the affidavit filed in support of application is true whereas the contents of para-15 of the counter affidavit is false and misconceived hence denied and in reply it is stated that deponent has nothing to do with Bail of Kuldeep Gupta. Further Dr Onkar Singh and deponent (Tejesh) has been falsely and maliciously implicated by Mr Radhey Shyam Khanna along with Kuldeep Gupta."

It would be apt to refer here that in above quoted paragraphs, it has not been stated that Kuldeep Gupta is not an associate of pairokar of the applicant rather it has only been stated in it that the applicant has no concern regarding preferring a bail application. Thus, Kuldeep Gupta is an associate of pairokar of the applicant.

Sri Akshat Kumar also submitted that the application, which was preferred from Gorakhpur and not from Bahraich by the pairokar of the applicant namely Tejesh Singh before the police personnel, is a document prepared only for the purposes of present application(s), as this application was preferred on 20.02.2023 with regard to the incident alleged to have taken place on 20.02.2023, however, the case was not fixed on that date and thereafter, the application(s) seeking transfer were filed in the Registry of this Court on 24.02.2023.

In continuation, Sri Akshat Kumar, learned counsel has stated that the present application(s) have been moved just to delay the proceedings before the trial Court, as the matter is now at the stage of adducing the evidence by the parties, as written statement(s) have already been filed by the contesting parties in the suit(s), in issue. In these circumstances particularly taking note of the age of contesting opposite party, who is having decree in his favour, the application(s), in issue, are liable to be rejected.

He also says that the witnesses of these case(s) are from the same District i.e. Bahraich and in case, the case(s) are transferred, then they would face great hardship. The prayer is to dismiss the instant applications for transfer.

Sri Ram Prasad Dwivedi, learned counsel appearing for the opposite party Nos. 2 to 6 in T.A.C. No. 50 of 2023 and opposite party No. 1 in T.A.C. No. 54 of 2023 says that the suits/cases, in issue, are liable to be transferred at any place outside the District Bahraich, as the proceedings would not be concluded in a fair and impartial manner in District Bahraich.

He further submitted that one of the opposite parties represented by him is residing in America and other opposite parties are residing outside the District Bahraich, as such, it would not be feasible for them to pursue and contest the case(s) at District Bahraich particularly in view of the fact that the contesting opposite party is a practicing Advocate at District Bahraich.

In response, Sri Akshat Kumar stated that parties as indicated by Sri Ram Prasad Dwivedi, Advocate are the proforma parties in these applications.

In response, Sri Dwivedi submitted that the parties represented by him are actually the interested parties before the trial Court as they would get the share in the property in case the suit preferred for cancellation of decree is decreed in favour of the applicant.

In response to above, Sri Akshat Kumar stated that Sri Onkar Singh is the marginal witness of the compromise, who is one of the opposite parties on whose behalf Sri Dwivedi, Advocate is appearing and this compromise was the basis of decree, in issue, before the trial Court in regular suit and if he denies his signature over the compromise then he would face consequences even on criminal side.

Considered the submissions made by the learned counsel for the parties and perused the record.

This Court finds from the averments made in the affidavit(s) filed in support of the application(s) for transfer that broadly on two grounds, the transfer of the case(s) has been sought.

First ground seeking transfer of the case(s) is based upon the averments made in para 11 to 13, quoted above, of the affidavit of T.A.C. No. 50 of 2023. It appears from the averments made in these paras that the opposite party No. 7/Radhey Shyam Khanna is a practicing Advocate in District Court at Bahraich and with the help of other local members of the Bar, he always tried to intimidate and prevent the deponent-Tejesh Singh from doing pairavi of the case and also created scene whenever the case was put up in the Court for hearing and further, he came to attend the proceedings accompanied with scores of other members of the Bar and the proceedings were always conducted in a hostile atmosphere and the proceedings hardly were smooth and fair for the applicant. It further reflects from these paras that on account of opposite party No. 7 as a local counsel, the applicant faces hostile atmosphere in local Bar.

Considering the averments made in aforesaid paras particularly para 12 of the affidavit of T.A.C. No. 50 of 2023, a report was called from the Presiding Officer (in short "P.O.") of the Court concerned vide this Court's order dated 08.05.2003.

In compliance of this Court's order dated 08.05.2023, Sri Pankaj Kumar-II, Civil Judge (Junior Division)/FTC, Bahraich, who took charge on 29.04.2023, sent a report dated 15.05.2023, as per which, it appears that no untoward incident of the nature described in para 12 of the affidavit of T.A.C. No. 50 of 2023, took place in the Court premises. The relevant para of the said report on reproduction reads as under:-

"iv. It is most humbly stated that I, as presiding officer, took charge of the court of Civil judge (Jr. Div.) / FTC, Bahraich on 29.04.2023 and no court proceeding pertaining to both above-mentioned cases took place before me as a Presiding Officer of The Court of Civil Judge (Junior Division) / FTC, Bahraich. However, from the persual of Ordersheets of both the Cases, it did not transpired that any such untoword incident of the nature described in the Paragraph 11 of the Affidavit filled in the support of the Transfer Application happened as any such incident has not been mentioned in the ordersheets of both the case files. In this regard report was called from the Reader of the present court regarding proceeding related to the above-mentioned both cases. The concern Reader in his report stated that no such untoward incident happened during court proceeding related to Regular Suit No. 1222/2021, Sukesh Ranjan Srivastava Vs. Devesh Ranjan Srivastava & Others and Regular Suit No 1291/2021, Sukesh Ranjan Srivastava Vs. Pushplata & Others. The report of the Reader of the Court of Civil Judge (Jr.Div.) /FTC, Bahraich is enclosed with this report."

A bare perusal of aforesaid quoted para of the report sent by the P.O. concerned reflects that the same is based upon the orders passed by the P.O. concerned and the report of the reader of the Court concerned.

Further, in compliance of this Court's order dated 08.05.2023, Sri Udyan Kumar Gautam, Addl. Civil Judge (J.D.), at present at Shikohabad, Firozabad, also sent a report dated 17.05.2023, as per which, it appears that no untoward incident of the nature described in para 12 of the affidavit filed in support of T.A.C. No. 50 of 2023, took place in the Court premises. The relevant para of the said report on reproduction reads as under:-

"iv. It is most humbly stated that from the persual of certified copy of ordersheets of both the cases, it did not transpire that any such untoward incident of the nature described in the Paragraph 12 of the 'Affidavit filled in the support of the Transfer Application happened as any such incident has not been mentioned in the ordersheets of both the case files. Moreover, if any such incident would have happened, then that would certainly have been mentioned in order sheets of both the files."

In view of above, this Court is of the view that the averments made in para 11, 12 and 13 of the affidavit of T.A.C. No. 50 of 2023, which are akin to para 10, 11 and 12 of the affidavit of T.A.C. No. 54 of 2023, are having no force.

Another ground seeking transfer of case(s) as appears from the averments made in the affidavit(s) filed in support of the application(s), under consideration, to the view of this Court, appears to be based upon the resolution of Bar. As based upon Resolution of Bar, it has been pleaded and argued, in brief, that on account of Resolution of Bar, the Member of Bar would not appear for the applicant or his associate/pairokar. As per the Resolution of Bar, the Members of Bar would not appear in the criminal case, if the same relates to Member of Bar.

However, it appears from record that in criminal case on account of FIR lodged by the opposite party No. 7, one person namely Kuldeep Gupta was arrested, who is associate of Pairokar (Tejesh Singh) of the applicant and his bail application was moved before the District Court by the Member of the local Bar and the same was rejected and in the affidavit(s) filed in support of application(s) seeking transfer or in rejoinder affidavit(s), it has not been stated that the Bar created hindrance in appearing in criminal case of the associate of Pairokar of the applicant.

Further, the Advocate engaged by the applicant before the Trial Court at District-Bahraich has also not come forward to support the case of the applicant by saying that the applicant would not get fair treatment by the P.O. or he could not conduct the case on account of Members of the Bar.

From the facts, indicated above, it is also evidence that on account of members of Bar, during the proceedings related to suit(s), in issue, which are pending since 2021 and at present are at the stage of evidence, no untoward incident took place in the Court premises.

Upon due consideration of the aforesaid aspect of the case including the fact that despite the Resolution of Bar, an Advocate appeared for Kuldeep Gupta, an associate of the pairokar of the applicant, in a criminal case, this Court is of the view that the apprehension of the applicant based upon the Resolution of Bar that he would not get competent legal representation of his choice in the proceedings before the trial Court and the trial could not be proceed in a healthy atmosphere is without any force.

Thus for the reasons, indicated above, this Court finds that second ground seeking transfer of the case(s), in issue, has no force.

Further, in entire application, there is no allegation against the P.O. of the Court. The allegations in fact are against the practicing Lawyer of the Court, who is opposite party No.7 and is contesting defendant in the suit(s) before the trial Court in relation to which the application(s) seeking transfer, in issue, have been preferred and the allegations are to the effect that on account of his influence, the counsel concerned engaged by the applicant would be in difficulty in making appearance before the trial Court. However, as already observed, no affidavit of the counsel concerned has been filed in support of such allegations, whereas, in the judgment relied upon by the learned counsel for the applicant passed in the case of Ashfaq Husen (Supra), the affidavit(s) of the counsel for the petitioners were also considered by the Hon'ble Apex Court while transferring the case from District-Lucknow to District- Prayagraj. In this view of the matter, this judgment would not help the applicant.

At this stage, it would be appropriate to refer the judgment cited by Sri Akshat Kumar, learned counsel for the side opposite passed by this Court in the case of Rohit Yadav and Another vs. State of U.P. and Another reported in 2016 SCC OnLine All 3052. In this case, broadly two grounds were taken for transfer of the case. First ground was to the effect that father of first informant is a Member of District Court Bar Association Jhansi, as such, he is exercising great pressure on the Members of Bar Association, Jhansi as well as Presiding Officer of Sessions Court, Jhansi. Second ground was to the effect that the first informant is a political leader as well as student leader of Bundelkhand Degree College and at present, he is President of the students union. This Court, upon due consideration, rejected the said application. The relevant observations of this Court in the judgment passed in the case of Rohit Yadav (supra) on reproduction read as under:-

"24. Vague and vexatious accusation without an element of truth on the working of Trial Court not supported either by fact or circumstances will not ipso facto be sufficient ground for transfer of a case. Transfer of a case can be made only when the same is reasonably required under facts and circumstances of a case. If allegations made for transfer are straightway discovered or found to be affecting adversely interest of justice instead of supporting it then the same will tantamount to erosion of judicial process itself and any claim so made for transfer can be, in that eventuality, termed unreasonable and uncalled for transfer of a case cannot be asked by making ostentatious, baseless and whimsical personal apprehensions. Normally such attempts should be strongly deprecated and discouraged. While considering the entirety of the matter in hand, it is obvious that this transfer application has not been moved with any fair motive but appears to be well thought attempt to somehow occasion delay in conclusion of the trial. If the applicants are apprehensive of their personal security then they may bring relevant facts to the notice of the trial Court itself. More so the record reflects that the wife of applicant No. 1 Rohit Yadav has moved bail application on behalf of minor son Chahat Yadav and has sought release of her (minor) son in her custody. This particular fact reveals that wife of applicant No. 1 is able to do Parvi of a case in the Court. More so applicant No. 2 is already on bail and it cannot be said that he is absolutely unable to do Parvi of the cases (two sessions trials) pending before the Sessions Court Jhansi. Personal inconvenience and personal apprehension of applicants as claimed by them are found to be not based on reasonable and substantive grounds as such would not justify transfer of the sessions trials. Further if the transfer application is moved with an ulterior motive to occasion or cause delay in disposal of the trial itself then that application is highly misconceived and cannot be allowed as that would adversely affect interest of justice. In catena of decisions, this tendency to seek transfer on frivolous and vague grounds has been deprecated repeatedly. Consequently, the grounds urged in support of the transfer application for transferring the aforesaid sessions trial are without any force and are liable to be turned down.

25. Accordingly, the instant transfer application is rejected."

In addition, the submission of Sri Akshat Kumar, learned counsel for the side opposite is that the witnesses are local residents and if the case is transferred to some other district including the district indicated by the applicant namely Balrampur then in that eventuality, it would be very difficult for the witnesses to attend the Court for recording the statement(s), has also not been refuted by the applicant's counsel.

For the reasons aforesaid including the findings recorded on the grounds seeking transfer of suit(s)/case(s), this Court is of the view that the application(s), under consideration, are without any force and are liable to be dismissed. The same are accordingly dismissed. No order as to costs.

Order Date :- 17.07.2023

Arun/-