Rajasthan High Court
Meeta Agarwal D/O Shri Meenalal ... vs Hathroigari Grah Nirman Sehkari ... on 13 October, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Transfer Application No. 75/2022
Meeta Agarwal D/o Shri Meenalal Agarwal W/o Shri Manoj Kumar
Agarwal, R/o Plot No. 2, Sector-3, Jawahar Nagar, Jaipur
Through Power Of Attorney Holder Father Meenalal Agarwal,
Aged About 75 Years, R/o House No. 3, Kalon Ka Mohalla, K.g.b.
Ka Rasta, Johari Bazar, Jaipur-302003
----Applicant/Plaintiff
Versus
1. Hathroigari Grah Nirman Sehkari Samiti, D-20
Meeramarg, Banipark, Jaipur Through Shri Rampratap
Son Of Shri Jagdish Prasad Sen,
2. Kajod Singh Son Of Umed Singh, R/o Arjun Nagar,
Durgapura, Jaipur.
3. Assistant Engineer, Rajasthan State Vidhyut Nigam,
Mansarovar Jaipur.
4. Rajmata Gayatri Devi (Deceased) W/o Late Shri Mansingh
Ji, R/o Lillypool, Tonk Road, C-Scheme, Jaipur.
5. Mitra Grah Nirman Sehakari Samiti Jaipur., Through
President And Investment Near Kishore Mistan Bhandar
Police Staiton Sodala, Jaipur
6. Jaipur Development Authority Through Secretary, J.d.a
Circle Jawaharlal Nehru Marg, Jaipur A-4, Sms Colony, B-
Block, Durgapura, Maharani Farm Mansarovar Jaipur.
7. Dependra Singh @ Banna S/o Shri Bacchan Singh, R/o 4-
A, SMS Colony, B-Block, Durgapura, Maharani Farm,
Above Mansarovar Nalah, Banethi House, Opposite
Singhvi Marble, Jaipur.
----Respondents/Defendants
For Petitioner(s) : Mr. Sampat Lal Songara
For Respondent(s) : Mr. Bajrang Lal Choudhary for
respondent No.2
Mr. Pawan Sharma on behalf of
Ms. Neelam Sharma for respondent
No.3
Mr. Manvendra Singh for respondent
No.6
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
13/10/2022
REPORTABLE
1. The instant transfer application under Section 24 of the Code
of Civil Procedure, has been filed seeking transfer of Civil Suit
(2 of 9) [CTA-75/2022]
No.56/2020 (464/2012) (26/2014), pending before the Court of
Additional District Judge No.9, Jaipur Metropolitan II, Jaipur to any
other court of equivalent jurisdiction, within the province of Jaipur
Metropolitan II, Jaipur.
2. Applicant-plaintiff has stated that the present civil suit for
declaration, possession, damages, mandatory and permanent
injunction, was instituted way back in the year 2008 and wherein
after filing the written statement by contesting defendants and
framing of issues, both parties have adduced their complete
evidence and suit reached at the stage of final hearing. At this
stage, the Presiding Officer, instead of hearing and decide the suit
on merits, opined that according to valuation of suit, same should
be referred to civil court having lower pecuniary jurisdiction and
asked the plaintiff to move an application for this purpose. When
plaintiff denied to move such an application, the Presiding Officer
asked the contesting defendant No.2 to move such application.
Defendant No.2, thereafter, filed application on 10.08.2021
praying that the Court of Additional District Judge has no
pecuniary jurisdiction to hear and decide the present suit. It may
be noticed that such objection was not taken by defendant No.2 in
his written statement nor at any stage before concluding of
evidence. Plaintiff filed reply and opposed the application, that
when no such objection was raised at the initial stage, now after
completion of evidence, at the fage end of trial, such application
may not be entertained. The Presiding Officer of the trial court, on
application of defendants framed issue No.4(क), related to the
jurisdiction and decided the same against the plaintiff vide Order
dated 17.08.2021 and suit has been ordered to be returned under
(3 of 9) [CTA-75/2022]
Order 7 Rule 10 CPC for filing before the competent court having
lower pecuniary jurisdiction.
3. Plaintiff assailed the Order dated 17.08.2021 by way of filing
S.B. Civil Miscellaneous Appeal No.1566/2021, before the High
Court. Vide Order 04.01.2022, the High Court set aside the order
dated 17.08.2021 and ordered to restore the present suit to its
original number as also directed to dispose of the suit within a
period of four months.
4. Thereafter, plaintiff moved an application under Section 24 of
Code of Civil Procedure before the District Judge, Jaipur
Metropolitan II, Jaipur, levelling some allegations against the
Presiding Officer of the Additional District and Sessions Judge
No.9, Jaipur Metropolitan II, Jaipur, and impugned the fairness,
independence and impartiality of the Presiding Officer in the
matter. The allegation was that the Presiding Officer is having
some remote contact/nexus with defendant No.2 and is biased
with plaintiff, therefore, plaintiff has lost faith to get justice from
that Court. Defendant No.2 opposed the transfer application.
Learned District Judge, Jaipur Metropolitan II, Jaipur, dismissed
the transfer application vide Order dated 22.03.2022. Thereafter,
applicant-plaintiff has filed the present transfer application before
this Court.
5. Notices of transfer application were issued to respondents.
Respondent No.2 has filed reply to the transfer application and
while denying grounds for seeking transfer, has prayed to dismiss
the transfer application with heavy costs. Respondents No.3 & 6
have also filed reply to the transfer application.
6. During course of arguments, this Court put a query from
counsel for applicant as to maintainability of this transfer
(4 of 9) [CTA-75/2022]
application before the High Court after dismissal of his transfer
application under Section 24 CPC by the District judge. Learned
counsel for applicant has placed reliance on the judgment of
Hon'ble High court of Andhra Pradesh delivered in case of
Munnangi Ramakrishna Rao Vs. Dr. Vanankuru Venkata
Siva Ramakrishan Prasad [(2003) 2 AN.W.R. 52], wherein
the similar question arose before the Court:
"Whether a party who was unsuccessful before the District
Court in a transfer petition, without questioning the same
either under Section 115 of the Code or under Article 227 of
the Constitution of India, can again invoke the jurisdiction of
this Court under Section 24 of the Code on the ground of
concurrent jurisdiction?"
While dealing with the aforesaid question, the learned Single
Judge of the Andra Pradesh High Court considered that under the
Code of Criminal Procedure, 1973, both High Court and Sessions
Court are given powers to grant anticipatory bail under Section
438 Cr.P.C. and regular bail under Section 439 Cr.P.C. Plethora of
case law shows that the bail application dismissed by the Sessions
Court, does not bar, to entertain the bail application by the High
Court. Further, placing reliance on the previous judgments of
Patna and Calcutta High Courts, it was finally held that "It is thus
seen that both Patna and Calcutta High Courts have also taken the
view that an unsuccessful party before the District Court can move
a fresh application for the same purpose in the High Court, which
impliedly means that he need not question the order of dismissal
by the District Court either u/s 115 C.P.C or under Article 227 of
the Constitution. Therefore, we hold that a petition u/s 24 C.P.C is
maintainable even without an order of dismissal of such petition
(5 of 9) [CTA-75/2022]
by the District Court being questioned either u/s 115 C.P.C. or
under Article 227 of the Constitution of India. The point is
answered accordingly. No counter to this judgment has been made
on behalf of respondents. This Court concurs with the opinion held
by the Andhra Pradesh High Court.
7. Having heard counsel for both parties and from perusal of
the record, it appears that an apprehension has occurred in the
mind of plaintiff that the Presiding Officer, is not conducting the
suit in fair and impartial way, but has some biased attitude and
seems to be influenced at the behest of defendant No.2, for one or
another reason. The apprehension has been substantiated on
record detailing out facts in order to show that how and in what
manner the present Presiding Officer may be influenced by
defendant No.2 and apparently for such reason, he, instead of
proceeding for final hearing and decide the suit on merits,
returned the suit at the fage end of trial to cause damage to the
plaintiff, as the Presiding Officer is prejudiced. It is not in dispute
that the order passed by a Judicial Officer, in respect of returning
the suit has been quashed and set aside by the High Court and the
suit has been ordered to be restored on its original number with
direction to hear and decide the same on merits within a time
bound period.
8. The concerned Presiding Officer of the Additional District
Judge No.9, Jaipur Metropolitan II, Jaipur, vide its order dated
04.05.2022, has sent his comments pursuant to the Order dated
04.01.2022 passed by this Court and has expressed his no
objection, in case the suit is transferred to any other court and
(6 of 9) [CTA-75/2022]
has also given his explanation in respect of conducting expeditious
proceedings.
9. Learned counsel for applicant has placed reliance upon the
judgments, delivered in cases of Prem Prakash Mishra Vs. J P
Bansal [(1998) RLW 2 638], Pushpa Devi Saraf Vs. Jai
Narain Parasrampuria [AIR (1992) SC 1133] and Kulwinder
Kaur Vs. Kandi Friends Education Trust [ (2008) 3 SCC
659].
10. In case of Prem Prakash Mishra (Supra), a Coordinate
Bench of this Court, in facts and circumstances of that matter,
opined that it is well settled that justice should not only be done,
but seems to be done. It is not necessary for petitioner to prove
any definite bias against the Presiding Judge but it is enough if
petitioner can show that he/she has genuine apprehension that
he/she would not get justice from the court in which his/her case
is pending.
11. In case of Pushpa Devi Saraf (Supra), Honble the Supreme
Court observed that though the allegations in the present petition
are not sufficient and do not warrant any order of transfer, yet the
Presiding Officer has been unduly affected by the allegations
levelled against him and which is evident from his report, wherein
he not only denied the imputations levelled against him but also
explained and justified the orders passed by him. In that situation,
the Hon'ble Supreme Court in the interest of Presiding Officer as
also in the interest of Justice, allowed the transfer application.
12. In case of Kulwinder Kaur (Supra), the Hon'ble Supreme
Court while deciding certain broad propositions as to what
construed a ground for transfer, considered that where there is a
reasonable apprehension in the mind of a litigant that he might
(7 of 9) [CTA-75/2022]
not get justice in the court, in which the case is pending, if the
court feels that plaintiff or the defendant is not likely to have "fair
trial" in the court from which he seeks to transfer a case, it is not
only the power, but a duty of the court to make order of transfer
the case.
13. According to judgments discussed hereinabove, it stands
clear that ordinarily the transfer application on the ground of
levelling false, filthy, malicious, unfounded and unwarranted
allegations against the concerned Presiding Officer with ulterior
motive should not be entertained and such practice of seeking
transfer of cases, may not be encouraged rather should be
deprecated. Nevertheless, it may not be held that transfer
application on the basis of such nature of allegations is not liable
to be entertained in any circumstances but such application can be
entertained after considering facts and circumstances of that
particular case. The underlying object to entertain transfer
applications on the basis of allegations against the Presiding
Officer either being biased or being pre-judiced, is to impart
impartial justice. Fairness and impartiality on the part of the
Presiding Officer is integral part of the justice. If the higher court
feels that in order to save the image of institution as well as to
build/maintain the faith and trust of litigants in obtaining fair,
impartial and real justice from judicial courts, the interest of
justice demands to transfer the case, in that situation, a genuine
application for transfer may be/should be entertained and
considered on its own merits. Simultaneously, application based
on false, unfounded and unwarranted allegations are not required
to be entertained. It is trite law that High Court/District Court has
power to entertain such kind of transfer applications but powers
(8 of 9) [CTA-75/2022]
should be exercised carefully, cautiously and sparingly, keeping in
mind the underlying object of advancement of justice. A difference
is always necessary to be drawn between bona fide and mala fide
applications. It is also necessary to strike a balance, taking into
account the totality of facts and circumstances of a particular
case, as also to examine the motive and underlaying object of
seeking transfer of any case on the ground of biasedness or
prejudicedness of any Presiding Officer in any particular case.
14. Keeping in mind the proposition of law discussed
hereinabove, this Court has taken into consideration the totality of
facts and circumstances of the present case. As far as allegations
levelled by the applicant-plaintiff against the Presiding Officer of
the Additional District Judge No.9, Jaipur Metropolitan II, Jaipur
having prejudiced with plaintiff and biased towards defendant No.2
are concerned, the same are not convincing nor have been
substantiated/supported by any cogent peace of substantial
evidence. However, it cannot be said that plaintiff has filed the
transfer application with any malicious motive or to achieve some
ulterior motive. There is no justification for the respondent-
defendant No.2, for not consenting rather opposing the transfer
application before the District Judge as well as before this Court.
The concerned Presiding Officer, in his explanation has also
expressed his no objection. Therefore, without discussing other
factors in detail, but taking into consideration the judgments
discussed hereinabove, this Court deems it just and proper to
allow the transfer application as same would be in the interest of
both parties as also in the interest of the concerned Presiding
Officer, therefore, to secure ends of justice, the present transfer
application is allowed and the present civil suit be transferred
(9 of 9) [CTA-75/2022]
from the Court of Additional District Judge No.9, Jaipur
Metropolitan II, Jaipur to any other court of equivalent jurisdiction,
for the purpose of final hearing and decision.
15. As a result, the transfer application stands allowed. The
District Judge, Jaipur Metropolitan II, Jaipur will transfer the
present Civil Suit No.56/2020 (464/2012) (26/2014) from
Additional District Judge No.9, Jaipur Metropolitan II, Jaipur to any
other court of equivalent jurisdiction within his province.
16. Registrar (Judicial) is directed to send a copy of this Order to
the District Judge, Jaipur Metropolitan II, Jaipur for compliance.
17. All pending application(s), if any, also stand(s) disposed of.
(SUDESH BANSAL),J
SACHIN/35
Powered by TCPDF (www.tcpdf.org)
