Sanjay Kumar Garg And Another vs Akhilesh Pratap Singh And 3 Others
2023 Latest Caselaw 14979 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:103033
 
AFR
 
Judgment Reserved on 08.05.2023
 
Judgment Delivered on 12.05.2023
 

 
Court No. - 5 
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4800 of 2023 
 

 
Petitioner :- Sanjay Kumar Garg And Another 
 
Respondent :- Akhilesh Pratap Singh And 3 Others 
 
Counsel for Petitioner :- Tanzeel Ahmad 
 
Counsel for Respondent :- Devendra Kumar Yadav,Ashish Mishra 
 

 
Hon'ble Prakash Padia,J. 

1. Heard Shri Rakesh Kumar, learned Senior Counsel assisted by Shri Tanzeel Ahmad, learned counsel for the plaintiffs-petitioners, Shri A.K. Gaur, learned Senior Counsel assisted by Shri Devendra Kumar Yadav, learned counsel appearing on behalf of contesting-respondents and Shri Ashish Mishra, learned counsel who was requested to appear on behalf of District Judge, Aligarh.

2. The present petition under Article 227 has been filed by the petitioners, challenging the order dated 11.4.2023 passed by the District Judge, Aligarh in Transfer Application No. 116 of 2023 (Akhilesh Pratap Singh Vs. Sanjay Kumar Garg & others).

3. It is stated in the petition that the petitioners have instituted a Civil Suit No. 50 of 1998 for specific performance of contract. The aforesaid suit was dismissed by Additional Civil Judge (Senior Division), Court No. 1, Aligarh by judgment and decree dated 23.9.2022.

4. The petitioners being aggrieved with the aforesaid judgment and decree dated 23.9.2022 have preferred a civil appeal no. 63 of 2022, in the court of District Judge, Aligarh. After admitting the appeal, the same was transferred to the Court of Additional District Judge, Court No. 1, Aligarh.

5. The petitioners also approached this Court by filing a petition under Article 227 No. 2161 of 2023 (Sanjay Kumar Garg & another Vs. Atar Singh & others) for a direction to the Court concern for early disposal of civil appeal. The said petition was finally decided by an order dated 14.3.2023, directing the Court concern to decide the appeal strictly in accordance with law, without granting any unnecessarily adjournment.

6. When appeal was at final argument stage, then Devendra Pal Singh & Suraj Pal Singh who are defendant-respondent in appeal, moved transfer application no. 83 of 2023 before the District Judge, Aligarh, stating therein that on 2.3.2023, the pairokar of the appellant informed the respondent that in lower Court, the suit was dismissed, but in the appeal, the respondent cannot succeed, as the Presiding Officer is relative of the appellant and both are same caste. With the said averment, it was stated in the transfer application that the defendants/respondents have no faith in the Court concern, as such, the matter be transferred to some other Court.

7. The plaintiffs/petitioners have filed their reply to the said transfer application, stating therein that the argument in the said appeal was concluded on 23.2.2023. The transfer application has been filed with an intention to delay the proceedings and false allegations have been made in the transfer application. The District Judge, Aligarh, after considering the comments submitted by the Presiding Officer, i.e, Additional District Judge, Court No. 1, Aligarh, dismissed the transfer application by an order dated 28.3.2023 with the findings that the transfer application has been moved only just to delay the disposal of the appeal.

8. It is further stated in the petition that thereafter application Nos. 15Ga & 17Ga for adjournment of the appeal were filed on the ground that a new counsel has been appointed, but the said adjournment application was rejected by the Additional District Judge, Court No. 1, Aligarh by a detailed order, mentioning therein that the hearing of the appeal has been concluded and the date was fixed for filing case-law. The Court below, after rejecting the aforesaid application, fixed 11.4.2023 for delivery of the judgment.

9. Thereafter when the matter was fixed for delivery of the judgment, an application under Order 22 Rule 10 read with 151 & 153 of Code of Civil Procedure was filed by one Akhilesh Pratap Singh for impleadment in the appeal as respondent, on the ground that he has purchased the said property by registered sale deed dated 27.9.2022. The aforesaid application was rejected by the Additional District Judge, Court No. 1, Aligarh, by an order dated 6.4.2023.

10. Thereafter an application under section 24 of Code of Civil Procedure was filed by Akhilesh Pratap Singh. In paragraph 3 of the aforesaid application, it was mentioned that Akhilesh Pratap Sigh has moved above mentioned application under Order 22 Rule 10 CPC, which was not accepted by the Presiding Officer, and as such, the same was filed in Computer Section, which was to be taken up at 3.00 PM, the Presiding Officer was not available in the Court and it was informed that the application will be heard on next day. In paragraph 4 of the application it was mentioned that on 7.4.2023, the applicant and his counsel has seen the appellant no. 1 coming out from the Chamber of Presiding Officer and has informed that his application will be rejected without hearing him and the case will be decided in favour of the appellant, as the Presiding Officer is of caste of the appellant and he is relative of the appellant.

11. In the said application, comments were called for by the District Judge, Aligarh. The Presiding Officer has submitted his comments on 10.04.2023, denying allegations of application and specifically mentioning therein that the application, filed on 6.4.2023 has already been rejected on 6.4.2023 itself. It was further stated in the comments that the allegations in paragraph nos. 4 & 5 of the transfer application are false. The Presiding Officer has further mentioned that in case his appeal is transferred to some other Court, he has no objection for the same.

12. The appellant petitioner has filed his objection, stating therein that:

(i) Akhilesh Pratap Singh is not party to the appeal;

(ii) Application filed by Akhilesh Pratap Singh for his impleadment has already been rejected;

(iii) Application under section 24 of Code of Civil Procedure can be moved by a person, who is party to the proceedings of the Court below;

(iv) Appeal has been expedited by order of this Court;

(v) The earlier transfer application No. 83 of 2023 filed on the same ground has been rejected by the District Judge, Aligarh by an order dated 28.3.2023.

(vi) Final argument in the appeal had been concluded and 11.4.2023 is the date fixed for delivery of the judgment;

13. The District Judge, Aligarh, by order dated 11.4.2023 without considering any of the grounds mentioned by the petitioners in his objection, allowed the transfer application only stating therein that considering the facts and circumstances of the case, the transfer application is worthy to be accepted. With this finding, the appeal has been transferred from the Court of Additional District Judge, Court No. 1, Aligarh to the Court of Additional District Judge, Court No. 9, Aligarh. The said order dated 11.4.2023 has been challenged in the present petition.

14. On behalf of the respondent no. 1/Akhilesh Pratap Singh, a counter affidavit has been filed by Yogendra Pal, alleging himself to be the pairokar of contesting respondent no. 1. In the counter affidavit, it is stated that the order passed by the District Judge, Aligarh in transfer application no. 83 of 2023 had been challenged by Devendra Pal Singh by filing transfer application. It is further stated that the said transfer application was dismissed as infructuous, as the case has already been transferred from the court of Additional District Judge, Court No. 1, Aligarh to the court of Additional District Judge, Court No. 9, Aligarh. The said order has been passed on 1.5.2023. It is further stated in the counter affidavit that the order dated 6.4.2023 come to the knowledge of the respondent only when he received the copy of the present petition. In paragraph 16 of the counter affidavit, the ground mentioned in paragraph 4 of the transfer application has been reproduced.

15. Heard learned counsel for the parties. It is not disputed that the transfer application No. 83 of 2023 filed by Devender Pal Singh & Suraj Pal Singh had been rejected by the District Judge, Aligarh, by an order dated 28.3.2023. It is also not disputed that the applicant of transfer application No. 116 of 2023, namely, Akhilesh Pratap Singh is not a party to the civil appeal No. 63 of 2022. The application filed by Akhilesh Pratap Singh for his impleadment had been rejected by the Court concern.

16. The fact of rejection of first transfer application was clearly brought on record by the objection filed by the appellant in transfer application No. 116 of 2023. The said objection was numbered as Paper No. 10Ga and has also been referred in the impugned order. It is also not disputed that in the objection, i.e.. paper No. 10Ga, the appellant has clearly mentioned that Akhilesh Pratap Singh is not party to the proceedings before the Court below and his application for impleadment has already been rejected. With these averments it was specifically mentioned that the transfer application is not maintainable, as it has been moved by a person, who is not party to the proceedings sought to be transferred from one court to other Court. The ground of transfer mentioned in the earlier transfer application No. 83 of 2023 was also mentioned in the order dated 28.3.2023. The said order was also part of the record.

17. Presiding Officer has also clearly stated in his comments that the hearing of the appeal had been concluded and the date 11.4.2023 is fixed for delivery of the judgment. The fact of dismissal of application for impleadment was also mentioned in comments of Presiding Officer.

18. A perusal of the impugned order dated 11.4.2023 also make it clear that none of the objection raised by the petitioners has been considered by the District Judge, Aligarh. No finding on the objection of the petitioner has been recorded by the District Judge, Aligarh, while allowing the transfer application and only this much is stated that in facts and circumstances of the case, the transfer application is worthy to be accepted.

19. Shri Ashish Mishra, learned counsel for the High Court has also submitted the instruction provided by the District Judge, Aligarh. The instruction submitted by the District Judge, Aligarh states that keeping in view the allegation made by the applicant against the officer, for the purpose of maintaining transparency and in the interest of justice, the case was transferred so that there is no possibility of any adverse effect or serious damage to the interest of any parties.

20. The learned counsel for the petitioner has relied upon a judgment, reported in 2008(1) AWC 523 :: (2008) 3 Supreme Court Cases 659, Kulvinder Kaur Vs. Kandi Friends Education Trust & others especially paragraph 26 for the proposition that an order of transfer must reflect application of mind by the Court and the circumstances which weighed in taking the action. Paragraph 26 of the aforesaid judgment cited in (2008) 3 SCC 659 is reads as follows:-

"26. In the case on hand, the High Court without stating anything whatsoever as to allegations and counter-allegations, without considering the reply submitted by the appellant herein and without recording any reason/ground passed the impugned order transferring the case. The learned counsel for the contesting respondent no doubt submitted that the Court has not observed anything since observations by a High Court one way or the other might prejudice one of the parties to the suit. It is true that normally while making an order of transfer, the Court may not enter into merits of the matter as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, however, an order of transfer must reflect application of mind by the Court and the circumstances which weighed in taking the action."

21. The learned counsel for the petitioner has also relied upon a judgment, reported in 2015(2) AWC 1145 Amit Agarwal Vs. Atul Gupta for the proposition that if the transfer application under Section 24 of Code of Civil Procedure has been moved on the allegations of bias of Presiding Officer, the Court must be satisfied that the apprehension of bias or prejudice is bonafide and reasonable. The expression of apprehension must be proved/substantiated by circumstances and material placed by such applicant before the Court. The relevant paragraphs 23 to 27 of the aforesaid judgment are reproduced herein below:-

"23. The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under Section 24 C.P.C., the Court must be satisfied that the apprehension of bias or prejudice is bona fide and reasonable. The expression of apprehension, must be proved proved/ substantiated by circumstances and material placed by such applicant before the Court. It cannot be taken as granted that mere allegation would be sufficient to justify transfer. In Smt. Sudha Sharma (supra) the Court observed that it is the duty of learned counsel to draft the application and made allegations with utmost care and caution. Hon'ble B.M. Lal, J. (as His Lordship then was), said:

"9. ......a foremost duty casts upon the counsel concerned while drafting and making allegations in the transfer petition against the Judge concerned with utmost care and caution, particularly in making wild allegations against the Presiding Judge. But, it appears that now-a-days it has become common feature to make allegations against the Court Presiding Judge. The counsel should realise that they are also officers of the Court. Introducing fanciful and imaginary allegations as grounds for transfer and harbouring apprehension such grounds that fair and impartial justice would not be done should always be deprecated.

10. Nonetheless, it is also important for all those who are engaged in the task of administering justice to remember that it is incumbent on them to create and maintain such confidence and atmosphere by giving every litigant an assurance by their judicial conduct that fair and impartial justice will be imparted. It is necessary to create such a confidence in the mind of the litigants so that their faith may not be shaken in Courts of law."

24. 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 Calcutta 26)

25. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer.

26. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice.

27. The justice delivery system knows no caste, religion, creed, colour etc. It is a system following principle of black and white, i.e., truth and false. Whatever is unfair, that is identified and given its due treatment and whatever is good is retained. Whoever suffers injustice is attempted to be given justice and that is called dispensation of justice. The prevailing system of dispensation of justice in Country, presently, has different tiers. At the ground level, the Courts are commonly known as "Subordinate Judiciary" and they form basis of administration of justice. Sometimes it is said that subordinate judiciary forms very backbone of administration of justice. Though there are various other kinds of adjudicatory forums, like, Nyaya Panchayats, Village Courts and then various kinds of Tribunals etc. but firstly they are not considered to be the regular Courts for adjudication of disputes, and, secondly the kind and degree of faith, people have, in regular established Courts, is yet to be developed in other forums. In common parlance, the regular Courts, known for appropriate adjudication of disputes basically constitute subordinate judiciary, namely, the District Court; the High Courts and the Apex Court."

22. Section 24 of Code of Civil Procedure reads as under:-

"Section 24. General power of transfer and withdrawal.

(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

(3) For the purposes of this section,

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order.

(4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.

(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. "

23. Perusing the records it is clear that the District Judge, Aligarh, while passing the order dated 11.4.2023 has not at all applied his mind and has not recorded any finding on the objection made by the petitioners regarding maintainability of the application under section 24 of the Code of Civil Procedure. Section 24 of C.P.C. provides that the application for transfer may be filed by a party to the proceedings. The applicant of transfer application no. 116 of 2023 was not party to the proceedings, i.e. civil appeal no. 63 of 2022, as such his application was not maintainable. The District Judge, Aligarh has recorded only a conclusion that in facts and circumstances, the application is worthy to be accepted. This clearly shows that while passing the order dated 11.4.2023, the District Judge has not at all applied his mind, and in a mechanical way, the order dated 11.4.2023 has been passed. When the same District Judge on the same allegation has rejected the earlier transfer application no. 83 of 2023, this Court finds that there was no reason with the District Judge to disagree with his own earlier order dated 28.3.2023 especially when no fresh material was brought on record before the District Judge, Aligarh which may justify the passing of the order dated 11.4.2023. Thus, the order dated 11.4.2023 passed by the District Judge, Aligarh in transfer application being contrary to law, is set aside. Transfer Application No. 116 of 2023 filed by the respondent no.1, namely Akhilesh Pratap Singh is rejected. The present petition is allowed.

24. No order as to cost.

Order Date :- 12.05.2023

Swati