Prakashbhai Ramchandra Barot vs State Of Gujarat
2021 Latest Caselaw 5278 Guj

        C/MCA/708/2020                                    JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/MISC. CIVIL APPLICATION NO. 708 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

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1    Whether Reporters of Local Papers may be allowed                No
     to see the judgment ?

2    To be referred to the Reporter or not ?                         Yes

3    Whether their Lordships wish to see the fair copy               No
     of the judgment ?

4    Whether this case involves a substantial question               No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                   PRAKASHBHAI RAMCHANDRA BAROT
                               Versus
                         STATE OF GUJARAT
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Appearance:
MR. MANOJ T DANAK(6264) for the Applicant(s) No. 1
DS AFF.NOT FILED (N)(11) for the Opponent(s) No. 1
MR.D K.PUJ(3836) for the Opponent(s) No. 3
NOTICE SERVED(4) for the Opponent(s) No. 2
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 CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                           Date : 27/04/2021

                           ORAL JUDGMENT

1. This application is filed by the present applicant- original plaintiff under Section 24 of the Civil Procedure Code to transfer the case and proceedings of the Regular Civil Appeal No. 36 of

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2019 from the Court of learned 3rd Additional District Judge, Kalol to any other Court of the State and to stay the further proceedings of the said appeal.

2. Rule. Learned AGP Mr. Jayneel Parikh for the respondent No. 1 State waives service of rule and learned advocate Mr. D.K. Puj for the respondents No. 3 waives service of rule.

2.1 Though respondent No. 2 is served but none is present.

3. At the request of both sides, the matter is taken up for final hearing.

4. The facts in nutshell of the present case are that the land bearing Survey No. 123/1 admeasuring 3 - 4297 H. RA. Sq. Mt. of old tenure situated at Shanavad, Taluka: Kalol is owned by the applicant by way of registered sale deed as the said land was in the ownership of his mother, who died in the year 2016. That, at that place, survey Nos. 120, 121 and 122 of the new tenure land situated and it is under the administration of the applicant on behalf of the owner. That, besides the land of Shanavad village like Survey No. 114 admeasuring 0.36 Guntha, Survey No. 133/3 admeasuring 1 Acre 11 Guntha and 0 Acre 20 Gunthas and hence, the applicant is doing administration of Survey No.s 120, 121, 122, 114, 113/3, 124/1 and 123/2 of different farmers. Now, the opponent No. 1 met the applicant with a view to start a project on the land, but the land owners have not accepted the same due to low price. Therefore, the opponent No. 1 tried to snatch away the possession by anyway. Therefore, the suit was filed by the applicant to restrain the opponents, his agents, servants, from transferring, alienating, selling or by any means the land being survey No. 113/3. That, on 30.03.2019, the

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learned 3rd Additional Judicial Magistrate First Class, Kalol vide judgment and decree allowed the Regular Civil Suit No. 229 of 2006. That, the opponent No. 2 feeling aggrieved by the said judgment and decree, challenged by way of Regular Civil Appeal No. 36 of 2019 before the Court of learned 3rd Additional District Judge, Kalol, which is pending adjudication. That, thereafter, the applicant preferred Civil Misc. Application No. 55 of 2020 seeking relief to transfer the matter to other Court, in the said application, the applicant stated that the judgment and decree passed by the learned trial Judge in his favour and now the situation of Covid-19 pandemic is prevailing in the State, therefore, the lower Courts are taking the urgent matters for hearing. However, the learned Additional District Judge before whom the matter is pending is insisting for expedite hearing of the matter as the opponent has filed an application under Order 41, Rule- 27 of the CPC, on 11.03.2020, which was granted on same day, without affording an opportunity of hearing to the applicant before the this Hon'ble Court but due to lockdown, the same was not filed. The 3rd Additional District Judge has dismissed three appeals being Civil Appeal Nos. 1 of 2018, 15 of 2016 and 137 of 2012, which were challenged before this Hon'ble Court, wherein this Hon'ble Court stayed the order of the trial Judge and admitted the same.

5. Learned advocate Mr. Manoj Danak for the applicant has argued that in the present case, application is filed to transfer the matter from the Court of learned 3rd Additional District Judge, Kalol to any other Court of Additional District Judge, Kalol. It is also contended that the applicant was in custody since 26.07.2019 to 06.09.2019 because of false order passed by the learned trial Court concerned and the same order was passed in the absence of learned advocate. It is further contended that the regular bail application preferred by the applicant before the

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learned trial Court, which came to be rejected by the learned trial Court but the Hon'ble High Court has granted regular bail to the present applicant.

6. Per contra, learned advocate Mr. D. K. Puj for the respondent No. 3 has heavily opposed the application and submitted that the applicant is required to move before the learned Principal District Judge, who is empowered to transfer the matter from one Additional District Judge to another Additional District Judge in the same district and not before this Hon'ble Court. He further contended that this is nothing but the tarnishing the image of judge and judiciary. He also contended that as per the allegations, since long the concerned Additional District Judge had not decided the application under Order 41, Rule- 27 of the CPC. He further contended that hearing is taken place but no order is passed is also a false allegations. He has drawn the attention of this Court that the application before the learned Principal District Judge, Gandhinagar for transfer the matter was withdrawn, therefore the false petition has been filed and which deserves to be dismissed with heavy cost.

7. Having heard the arguments advanced by learned Advocates appearing for both the sides, it is cardinal principle of every legal system that the litigant should approach to the appropriate court for ventilating their grievance. Not only that, but ignorance of law has no excuse. In the present case, the Petitioner has made heavy allegations against the learned Additional District Judge that the matter should be transferred to the other Court of Additional District Judge, Kalol. But, this Court has simultaneously gone through the rojkam wherein it reflects that the learned Dsitrict Judge has passed necessary order in time and in some cases on the same day. Therefore, the

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allegations leveled against the learned Additional District Judge is totally baseless. Further, it is pertinent to note that the learned Advocate concerned has moved before the learned Principal District Judge for transferring the matter from the Court of learned 3rd Additional District Judge, Kalol to the other Court of Additional District Judge of the State (out of Kalol) but the same application was subsequently withdrawn by the concerned Petitioner and that is also on the record.

8. Learned Advocate Mr. D.K.Puj appearing on behalf of Opponent No.3 has taken this Court to such aspects which drives this court to inspire confidence that earlier the concerned Petitioner has withdrawn the application before the learned Principal District Judge, not only that but the rojkam which is submitted by learned Advocate Mr. D.K.Puj, wherein it can be simply read that learned Additional District Judge has immediately disposed of the matter. It appears that it would be appropriate to refer Section 24 of CPC which reads as under:

"CPC 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

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(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 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of any 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."

9. As per the plain reading of Section 24 of CPC, it transpires that Courts of Additional and assistant Judges shall be deemed to be subordinate to the District Court for the purpose of this Section. Therefore, ex facie the learned Principal District Judge is empowered to transfer the matter from one Additional District Judge Court to the another Additional District Judge in his own district.

10. In the case of Manuchukonda Venkata Jagannadham v. Chettipalli Bullamma and Ors. reported in AIR 2011 2011 AP 104, the Hon'ble Andhra Pradesh High Court at Hyderabad has observed as under:

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"12) In the context of occurrence of the phrase 'Additional Judges' in Section 24(3)(a) C.P.C, this Court is of further opinion that the said phrase cannot be interpreted as 'Additional District Judges'. Section 24(3)(a) C.P.C speaks about Assistant Judges also along with Additional Judges. It can be nobody's case that there are any Judges termed as Assistant District Judges. The Additional Judges and the Assistant Judges referred in clause (a) of Sub- section (3) of Section 24 are those Judges who worked with the said nomenclature in the City Civil Court unit.

13) No doubt, Section 24(3)(a) enacts a deeming provision to the affect that Additional and Assistant Judges are subordinate to the District Court. A deeming provision was described by Lord Asquith in East End Dwellings Co, Ltd, V. Finsbury Borough Council (1952 AC 109) in the following language:

"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it......The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

11. In the case of Tadikonda Surya Venkata Satyanarayana Murthy and Ors. v. Tammana Seethamahalakshmi & Ors. reported in MANU / AP / 0310 / 2016, the High Court has observed in paragraphs 27, 28, 33, 36 and 37 as under:

"27. To put it differently, two conditions are to be satisfied for the exercise of the power under Section 24 (1) (a). The first is that the Court to which the case is to be transferred should be subordinate to the Court ordering the transfer.

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The second is that the transferee Court should also be competent (have jurisdiction) to try and dispose of the same.

28. Both the conditions laid down in Section 24 (1) (a) will stand satisfied only when the transfer is made from the Principal District Court, to any one of the Additional District Courts. Therefore, Section 24 (1) (a) itself contains a clue as to how we should resolve the problem on hand.

33. The fact that the Principal District Judge cannot sit in Judgment or appeal over the judgment of an Additional District Judge, is not a ground to hold that the Principal District Judge would not even have a power to transfer a case pending on the file of one Additional Judge to another. While ordering the transfer of a case from the file of one Additional Judge to that of another, the District Court (or the Principal District Judge) neither pronounces a judgment on the merits of the case nor exercises the power of judicial review over any decision rendered by the Additional District Judge. Therefore, the expression subordinate need not be a cause for worry.

36. Therefore, in the light of foregoing discussion, we are of the considered view that the Principal District Judge would have the power to withdraw a suit, appeal or other proceeding pending on the file of one Additional District Judge and transfer the same to the file of another District Judge. As a corollary, we are also of the considered view that the decision of the learned single Judge in Manchukonda Venkata Jagannadham does not reflect the true spirit of Section 24 (3) (a) of the Code and does not reflect the correct law on the point.

37. Incidentally, we may also clarify that the general power of withdrawal and transfer is available to the High Court as well as the District Court concurrently as indicated by the Supreme Court in Kuluvinder Kaur v. Kandi Friends Education Trust (C.A.No.338 of 2008 dated 11-1-2008). Therefore, the

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availability of the power for the Principal District Court to transfer a case from the file of one Additional District Court to another, does not operate as a bar for the High Court to exercise the jurisdiction."

12. Further, this Court in case of Vasantben Vovindbhai Vaikariya v. Govindbhai Thakarshibhai Vaikariya, reported in 2007 GLH(1) 154 has observed as under:

"(11) THE Andhra Pradesh High Court, in the case of T. REDDY V/s. M. RAO reported in AIR 1970 AP 194, while dealing with a case where it was argued that the court at Narasarapet had no jurisdiction to try the suit held that the language of section 24 of CPC is very wide and there are no restrictions or impediments in the way of the High Court exercising the power of transfer merely because there is a dispute regarding jurisdiction. So far as the District court is concerned, the same power of transfer within the same District is conferred on the District Court under sec. 24 of CPC as the power conferred in the High Court for transfer from a Court in one District to a Court in another District within the State.

(12) So far as transfer within the district is concerned, the District Court enjoys the same power by which it can transfer any proceedings from one Court to another Court even to a Court which has no territorial jurisdiction. Learned Principal judge has completely misread the provisions of section 24 CPC by rejecting the application on the ground that the Court at Rajkot has no territorial jurisdiction on account of the various facts mentioned in the order and stated hereinabove. It is also difficult to appreciate as to why the learned District judge has asked for presenting the petition to the respective Court under Sec. 24 as well as other provisions of law. The learned judge has, therefore, committed an error in not treating the said application as an application under section 24, CPC. While deciding the said application, territorial jurisdiction is not of much relevance and the learned District Judge was required to consider on merits whether the proceedings was required to be

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transferred from one court to another within the same District under sec. 24, CPC. It is required to be noted that the application for transfer before the District Judge was not under section 21. A of the Hindu Marriage Act. Looking to the averments in the application, it is clear that the said application was an application under sect. 24 of CPC as the applicant even narrated about her apprehension for attending the Court at Gondal. A perusal of the application makes it very clear that it was an application under section 24, CPC. The learned District Judge, therefore, should not have rejected the application on the ground of territorial jurisdiction but should have decided it on merits."

13. Upon such premises, the learned Principal District Judge is empowered to transfer the matter to the other Court of Additional District Judge, Kalol to other Additional Judge. Therefore, the Petitioner was not required to approach this Court. Further, when the application to the effect was already withdrawn by the Petitioner from Principal District Judge for transferring the matter to the other Court of Additional District Judge, Kalol, therefore, also the Petitioner was not required to approach this Court.

14. It is submitted by the learned Advocate for the Petitioner that they were under the impression that the learned Additional District Judge and the learned Principal District Judge is a same cadre and therefore they thought to approach this court. But such stand is not tenable in the eyes of law.

15. As per Section 24 of the CPC, the Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court as per Section 24(2)(3)(a) of CPC. Further, as per the decisions rendered by the different High Courts and this Court as cited above,, the learned Principal District Judge is empowered to transfer the matter from his District Court to the another Additional District Judge of his own District. Since the learned

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Principal District Judge is in the same cadre so far as the judicial side is concerned in compare to the learned Additional District Judge or learned Assistant Judge (old cadre), but, so far as the administrative side is concerned, the learned Principal District Judge is the master of roster and he can transfer or withdraw any other matters from his own District and also to transfer the matter from the learned Additional District Court to any other Additional District Judge Court within his district and hence, there is no substance in the arguments advanced by the learned Advocate for the Petitioner.

16. It appears that whenever such application is made the concerned Presiding Officer / Additional District Judge may feel little displeasure, why the transfer application is made, despite his due diligence to the work and therefore ex facie this is nothing but tarnishing the image of judiciary. Therefore, this Court is of the opinion that the present Miscellaneous Application has no merits and deserves to be dismissed with heavy cost. This court has assistance of decision of this Court in case of Amit Jayantibhai Patel v. Keshaji Kalaji passed in Miscellaneous Civil application No. 230 of 2019 on 12.4.2019.

17. The Application stands dismissed with cost of Rs.15000/-. Rule is discharged. The amount of cost be deposited in Advocates' Law Library of District Court, within two weeks from this order. Interim relief granted earlier stands vacated.

(A. C. JOSHI,J) J.N.W