Jogendra Narain Singh and Another vs Radha Prasad Singh and Another

Kulwant Sahay, J.—This is an application on behalf of the plaintiffs in a suit pending in the Court of the Subordinate Judge at Deoghur for the transfer of that suit to the Court of the District Judge at Bhagalpur. The grounds for transfer are contained in paras. 11 and 12 of the application filed in this Court. In para 11 it is stated that in the Santal Parganas under the Santal Regulations the executive and the judicial functions are carried on by the same officers and the petitioners apprehend that if the suit is tried by the same officers in their judicial capacity they will not have a fair and impartial trial at their hands as these officers have already expressed their opinion in the matter in their executive capacity at the time when they dismissed petitioner 1 from the office of Ghatwal.

The second ground set out in para 12 of the application is a ground of convenience. The suit brought by the petitioners is for a declaration that the dismissal of petitioner 1 from his office of Ghatwal of the Kunjora ghatwali was unlawful and for the removal of defendant 1 who was appointed ghatwal in his place and for recovery of possession of the ghatwali properties. There is an alternative prayer that petitioner 2 who is the son of petitioner 1 may be appointed ghatwal if the dismissal of petitioner 1 be held to be lawful. It is alleged that the order relating to the dismissal of plaintiff 1 was passed by the Commissioner and that the Subdivisional Officer and the Deputy Commissioner acted in their executive capacities in the matter of his dismissal; and the Subordinate Judge before whom the present suit is pending who is also the Subdivisional officer will have to decide the question now in his judicial capacity whether the action taken by the revenue authorities was lawful or otherwise and therefore the petitioners allege that they apprehend that they will not have a fair and impartial trial at the hands of the present Subordinate Judge.

Now it is to be noticed that the present officer before whom the suit is pending had nothing to do with the proceedings relating to the dismissal of plaintiff 1. Those proceedings were held by different officers who have all been transferred from the place. Moreover the Subordinate Judge in hearing the suit pending before him will be acting as such under the Civil Courts Act and he will in no way be a subordinate to the Commissioner inasmuch as appeal against his decision in this suit will lie direct to the High Court.

It is suggested by the learned Advocate for the petitioners that having regard to the fact that the Subordinate Judge is subordinate in his executive capacity to the Commissioner and as the previous order of dismissal was passed by the Commissioner, he will not have the independence to decide this case against the order passed by the Commissioner. The mere statement of this suggestion is sufficient to show that there is absolutely no foundation for it. It can hardly be suggested that because the Commissioner passed a certain order therefore the Deputy Collector Subordinate Judge will not have the independence to decide the case according to his own independent judgment sitting as a judicial officer.

There is absolutely no substance in the ground set out in para. 11 for apprehension of the petitioners not getting a fair and impartial trial at the hands of the Subordinate Judge.

The ground set out in para. 12 is a ground of convenience. The only allegation contained in this paragraph is that as the suit will be a highly contentious one involving succession to properties worth Rs. 30,000 it will be convenient in the interest of both parties if the case is tried by some competent Court at Bhagalpur. The details as to how it would be inconvenient to the petitioners to have the suit tried at Deoghur have not been set out.

On the other hand it is stated on behalf of defendant 1 that on no previous occasion he or the plaintiffs had to bring any lawyer from outside Daoghur. Three of the issues settled in the suit have already been heard and disposed by the Subordinate Judge, one issue in favour of the plaintiffs, namely, the issue relating to the maintainability of the suit and the other two issues relating to the value of the suit and the amount of court-fee against the plaintiffs.

Thereafter the plaintiff''s filed an application for the appointment of a receiver. This application was also heard and disposed of by the Subordinate Judge and it was not necessary for the plaintiffs or defendant 1 to bring lawyers from outside. The Secretary of State is also a party in this suit and at his instance the Government Pleader of Bhagalpur had to come to Deoghur on one or two occasions; but he does not complain of any inconvenience. On the other hand an affidavit has been filed on behalf of defendant 1 stating that it will be highly inconvenient for him to take his witnesses to Bhagalpur and to engage new pleaders or advocates at Bhagalpur. He has further stated that the journey from Deoghur to Bhagalpur is expensive and tedious.

The petitioners as I have already stated do not give any specific instance of inconvenience which they can possibly feel by the suit being heard at Deoghur. Moreover plaintiff 1 was dismissed from his office on 1st April 1930. The present suit was instituted in April 1931. Various proceedings have since been taken, issues settled, some of the issues have already been disposed of; application for appointment of receiver had been made and disposed of and the case is ripe for hearing and the petitioners now come to this Court for a transfer of the case after two years from the date of the institution of the suit. No ground has been made out for the transfer and it is moreover clear that the application for transfer was not made at the earliest opportunity. This application must therefore be dismissed with costs: hearing fee three gold mohurs to be divided equally between the two sets of opposite parties Who appeared.