Delhi High Court
Geeta Rai vs Pawan Kumar Kakaria on 14 September, 2022
$~66
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM(M) 964/2022 & CM APPL. 40525/2022, CM APPL.
40526/2022
GEETA RAI ..... Petitioner
Through: Mr. Praveen Suri, Adv.
versus
PAWAN KUMAR KAKARIA ..... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
J U D G M E N T (ORAL)
% 14.09.2022
1. This petition, under Article 227 of the Constitution of India,
assails the following order, passed by the learned Principal District &
Sessions Judge ("the learned Pr. DSJ) on 5th September 2022 in TP
116/2022 (Pawan Kumar Kakria v. Geeta Rai):
"TP No. 116/2022
Pawan Kumar Kakria vs Geeta Rai
05.09.2022
Present: Shri Harish Katyal, counsel for petitioner This
is fresh transfer petition. It be checked and registered.
At the outset, the expressions used in the petition
were explained by learned counsel for petitioner, fairly
admitting that the expressions were harsh. But learned
counsel for petitioner also explained at length the
circumstances in which according to him the present
petition was filed.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:19.09.2022
12:29:56
Learned counsel for petitioner explained that
apprehension of bias leveled against the concerned
judicial officer is not baseless and in that regard, he
showed me two audio video clips in his mobile phone.
Of course, conscious about the sensitive nature of those
clips, the same were shown to me when the court room
was empty. Learned counsel also showed me a screen
shot of a Whatsapp message received by the petitioner
from respondent no. 1 from mobile phone which seems
to have been registered in the name of another judicial
officer, who is son of the present respondent no. 1.
Learned counsel also took me through order dated
27.08.2022 in the subject suit and order dated
20.07.2022 in another suit. The order dated 20.07.2022
dismissing the amendment application in the other suit is
stated to have been challenged before the Hon'ble Delhi
High Court.
In view of above material, a copy of this order
and the transfer petition in sealed cover be sent to the
concerned judicial officer with the request to send his
comments by the next date.
Subject to petitioner filing PF and RC within one
week, notice be issued to respondent returnable on
14.10.2022."
(GIRISH KATHPALIA)
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
DELHI/05.09.2022"
2. The prayer clause in this petition reads as under:
"a) To call for the records of the case from the Court of
Shri Girish Kathpalia, Principal District & Session Judge
(HQs), District: Central, Tis Hazari Courts, Delhi in the case
titled as 'Pawan Kumar Kakaria versus Geeta Rai in Transfer
Petition No. 116/2022.
b) To modify/set aside the order & judgment dated
5.9.2022, passed by the Court of Shri Girish Kathpalia,
Principal District & Session Judge (HQs), District: Central,
Tis Hazari Courts, Delhi in the case titled as 'Pawan Kumar
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:19.09.2022
12:29:56
Kakaria versus Geeta Rai"; in Transfer Petition No. 116 /2022
in which the comments from the judicial officer i.e. Shri Hem
Raj, ADJ, District: Central, Delhi have been called without
giving any fair opportunity to the petitioner being heard and
to reply the same, therefore, the said order itself is perverse.
c) Costs of the present petition be also awarded in favour
of the Petitioner and against the respondent.
d) Any other order as may be deemed fit and proper in
view of the aforesaid facts and circumstances may also be
passed in favour of the Petitioner and against the
Respondent."
3. TP 116/2022, in which the impugned order has come to be
passed by the learned Pr. DSJ, sought transfer of the proceedings in
CS DJ 522/2020, from the court which was in seisin of the said
proceedings to another court. The application alleged, in no uncertain
terms, bias and a prejudiced attitude, by the court which was hearing
the matter, against the applicant/plaintiff. Inasmuch as the aforesaid
transfer petition is still pending before the learned Pr. DSJ, it would
neither be proper nor advisable for this Court to express any view on
the merits of the said petition. This Court, therefore, refrains from
expressing any opinion in that regard.
4. A reading of the impugned order dated 5th September 2022
reveals that the learned Pr. DSJ was shown two audio-video clips and
a WhatsApp message, in camera, when the court was empty. The
learned Pr. DSJ has, advisedly, not adverted to the contents of the said
clips or the WhatsApp message. He has merely sought for comments,
from the judicial officer from whose court the respondent desired the
suit to be transferred, and re-notified the matter for 14th October 2022.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:19.09.2022
12:29:56
5. In this context, I may observe that the impugned order reveals
that the learned Pr. DSJ has merely forwarded, to the learned judicial
officer concerned, a copy of the transfer petition in sealed cover along
with the impugned order dated 5th September 2022. That, however,
may not suffice. Inasmuch as the learned Pr. DSJ has sought to call
for the comments of the learned judicial officer on the basis of the two
audio-video clips and the WhatsApp message shown to him, it would
necessary for the said audio-video clips and the WhatsApp message to
be also forwarded to the concerned judicial officer, so that he is aware
of the material which has provoked the learned Pr. DSJ to call for his
comments. That is the most basic requirement of the principles of
natural justice.
6. This Court is not aware of the contents either of the audio video
clips or of the WhatsApp message which were seen by the learned Pr.
DSJ. In his subjective opinion - which this Court is required to
respect, especially given his stature - the learned Pr.DSJ has deemed it
appropriate to call for comments from the judicial officer concerned.
The impugned order does not contain any observation adverse to the
concerned judicial officer. It does not contain any reference to the
actual contents of the audio-video clips or the WhatsApp message.
All that the impugned order indicates is that the learned Pr. DSJ felt
that the comments from the concerned judicial officer were necessary.
7. The impugned order is completely innocuous. The learned Pr.
DSJ has acted in the best interests of justice and in compliance with
the principles of natural justice and fair play. He has correctly called
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:19.09.2022
12:29:56
for comments from the judicial officer, as he feels that the occasion
requires such comments to be furnished. It is not for this Court to sit
in appeal over the subjective satisfaction of the learned Pr. DSJ to call
for comments from the concerned judicial officer after having seen the
audio-video clips and the WhatsApp message which were shown to
him.
8. As of today, there is nothing adverse against the concerned
judicial officer. The outcome of TP 116/2022 cannot be predicted. It
is very much possible that, having obtained comments from the
concerned judicial officer, the learned Pr. DSJ may dismiss the
transfer petition holding the allegation of bias against the judicial
officer to be unsubstantiated. It would be completely hazardous for
this Court to venture into that arena especially when the matter is
presently engaging the attention of the learned Pr. DSJ.
9. Mr. Suri points out that, in CM(M) 913/2022 (Pawan Kumar
Kakaria v. Geeta Rai), this Court has directed an application under
Order XVA of the CPC, presently pending before the learned ADJ
(from whose court the respondent desired the case to be transferred),
to be accorded priority and to be decided before other applications
were taken up.
10. Mr. Suri submits that the transfer petition filed by the
respondent is intended merely to stymie the implementation of the said
order and would result in protraction of proceedings before the learned
ADJ. He seeks a direction from the Court to the learned ADJ to
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:19.09.2022
12:29:56
comply with the order dated 6th September 2022 irrespective of the
pendency of TP 116/2022.
11. It is not possible for this Court to accede to the request of Mr.
Suri, apropos the order dated 6th September 2022, for issuing a
direction to the learned ADJ to comply with the said order irrespective
of the pendency of TP 116/2022, especially as this Court is unaware of
the nature of the material contained in the audio-video clips and the
WhatsApp message which were shown to the learned Pr. DSJ.
12. As a result, this Court does not express any view as to whether
the learned ADJ should, or should not, continue with the proceedings
despite the pendency of TP 116/2022. It would be open to the
petitioner to request the learned ADJ to continue with the proceedings
in terms of the order dated 6th September 2022 passed by this Court in
CM(M) 913/2022 irrespective of the pendency of TP 116/2022. If any
such request is made, the learned ADJ would take a call on this
request.
13. The impugned order, merely having called for comments from
the concerned judicial officer without having expressed any prima
facie opinion either regarding the allegations of bias against him or the
merits of TP 116/2022, the present challenge is manifestly premature.
14. Needless to say, the right to assail any order which may come to
be passed in TP 116/2022, by any party who claims to be aggrieved
therewith by means known to law would remain reserved.
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:19.09.2022
12:29:56
15. The present petition is being pre-mature does not, therefore, call
for any intervention by this Court. It is, accordingly, dismissed.
16. Subject to the aforesaid, the petition is accordingly dismissed
reserving liberty as already noted hereinabove.
C.HARI SHANKAR, J.
SEPTEMBER 14, 2022
dsn
Signature Not Verified
By:SUNIL SINGH NEGI
Signing Date:19.09.2022
12:29:56
