Delhi High Court
Pawan Kumar Yadav & Anr. vs Shail Yadav & Ors. on 22 January, 2019
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Order: 22.01.2019
+ Tr. P. (C) No.4/2019
PAWAN KUMAR YADAV & ANR. ..... Petitioners
Through: Mr. Kuljeet Rawal, Advocate.
Versus
SHAIL YADAV & ORS. ....Respondents
Through: Respondent in person.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL
C.M. No.3108/2019 (for exemption)
Allowed, subject to all just exceptions.
The application is disposed of.
Tr. P. (C) No.4/2019 & C.M. No.3109/2019 (for stay)
1. The petitioner seeks transfer of case being Misc. No.548/2018
in Civil Suit No.12592/2016 from the court of learned Additional
District Judge-II, Central District, Tis Hazari Courts, New Delhi
('ADJ') to this court.
2. On 04.08.2018, the court of learned Additional District &
Sessions Judge, Patiala House Court, New Delhi ('ADJ ND') passed a
final decree for partition in Civil Suit No.12592/2016 titled as Lt. Col.
Gaj Singh Yadav (Retd.) through LRs. & Ors. Vs. Shyam Bai (deleted)
& Ors. In the short order of the even date, the learned 'ADJ ND'
observed as under:-
"An application under Order 39 Rule 2-A CPC moved
on behalf of LRs of the defendant No.2 is pending. The
said application, inter alia, pertains to the sale of
agricultural land specified in Schedule B to the plaint
in violation of the interim stay orders passed by the
Court. The said agricultural land is not the subject
matter of the final decree passed. The said application
be therefore registered as a separate miscellaneous
application.
Another application under Section 340 Cr.P.C. moved
on behalf of the LR of the plaintiff is also pending. The
said application be also registered as separate
miscellaneous application."
3. The matter was taken up on 11.09.2018 by the successor court
of learned 'ADJ', who observed as under :-
"Present: Sh. Pawan Kumar Yadav - LR No.1 of
the deceased plaintiff.
Sh. Vivek Sood, Sr. Advocate with Sh.
Manish Gupta Advocate for LRs
No.2(a) to 2 (f) with LR No.2(b).
Ms. Smita Chaudhary in person.
Defendant No.11 in person.
Today, the matter is listed for
arguments on two applications - under Order XXXIX
Rule 2-A CPC made on behalf of LRs of the deceased
defendant no.2 and the other application undr Section
340 Cr.P.C. made on behalf of LRs of the deceased
plaintiff. However, Ld. Counsel for LRs no. 2(a) to
2(f) submits that his other application made under
Order XXXVIII Rule 5 read with Order XXXIX Rule
2A CPC is also pending disposal which has been
referred to in the order dated 18.5.2018.
It is further submitted that pleadings
are complete in both the two applications made on
behalf of LRs of deceased defendant no.2.
On this, Sh. Pawan Kumar Yadav - LR
No.1 of the deceased plaintiff submits that the
application under Order XXXVIII Rule 5 read with
Order XXXIX Rule 2A CPC has already been
disposed of in the judgment dated 04.8.2018. This
submission has been disputed by Ld. Counsel for
defendant No.2 (a) to 2 (f).
In view of the submissions, list the
matter for clarification on the above point and for
arguments on the aforesaid applications on
05.12.2018."
4. On 05.12.2018, learned 'ADJ' passed the order, which reads as
under :-
"05.12.2018
Present Sh. D.N. Goverdhan Advocate for the
applicant.
Respondent/contemnor Ms. Taruna Yadav in
person.
Memo of parties to the application under
Order XXXVIII Rule 5 CPC and Order XXXIX Rule 2-
A CPC dated 03.6.2017 not filed.
List the matter for filing of memo of parties to
the aforesaid application on 06.3.2019."
5. It is submitted by the learned counsel for the petitioner that on
05.12.2018, the petitioner along with the proxy counsel, Ms. Farzana,
requested the court for a passover as the main counsel Mr. Kuljeet
Rawal was to appear but the same was disallowed. He submits that the
request of the petitioner for personal hearing was ignored by the Ld.
ADJ and his written synopsis were not taken on record. He submits
that three applications (i) under Section 151 CPC requiring the legal
heirs of defendant No.2 to produce the receipts of cost of Rs.20,000/-
and Rs.2 lacs (ii) under Section 151 CPC for drawing the decree sheet;
and (iii) under Order XL Rule 1 CPC read with Section 151 CPC for
appointment of Receiver, were returned by the Ld. ADJ and not taken
on record.
6. He contends that the order dated 04.08.2018 reflects pendency
of only two applications; one under Order XXXIX Rule 2A CPC; and
another under Section 340 Cr.P.C. whereas the Ld. 'ADJ' wrongly
recorded in the order dt. 11.09.2018 the submission of the counsel for
LRs of defendant No.2 that another application under Order XXXVIII
Rule 5 read with Order XXXIX Rule 2A CPC is also pending
disposal. He submits that on 05.12.2018, the learned ADJ directed for
filing of memo of parties to the application under Order XXXVIII
Rule 5 CPC which is not pending as per order dt. 04.08.2018.
7. Summarising his reasons for transfer of the petition to this
court, the Ld. Counsel for the Petitioner urged that since (i) the learned
ADJ on 11.9.2018 wrongly recorded the submission of the learned
counsel for LRs of defendant No.2 about the pendency of application
under Order XXXVIII Rule 5 read with Order XXXIX Rule 2A CPC;
(ii) failed to grant a passover on 05.12.2018 and to hear the petitioner
and take the written synopsis on record, three applications on record,
the matter should be transferred to this court for disposal of the
pending applications in accordance with law.
8. I do not find any justification for transfer of case being Misc.
No.548/2018. No personal bias is attributed to Ld ADJ. There cannot
be any personal interest of the learned judicial officer. If the applicant
is aggrieved of the order dated 11.09.2018 or 05.12.2018, he can avail
his appropriate remedies available in law but certainly not the transfer
of application. If the applicant/petitioner wants to move any
application, he can file in accordance with law before the learned
ADJ. Similarly, if no application under Order XXXVIII Rule 5 read
with Order XXXIX Rule 2A CPC remains pending disposal after
passing of the final decree on 04.08.2018, he can certainly bring the
fact to the knowledge of the learned ADJ.
9. The petition along with application, being C.M. No.3109/2019,
is disposed of accordingly.
(VINOD GOEL)
JUDGE
JANUARY 22, 2019
'AA'
