Magma Fincorp Ltd. vs Jasmeet Singh Bagga

N.K. Agarwal, J.—The instant petition calls in question the order dated 04.082010 passed by the District Judge, Raigarh, in case No. 28/10, whereby the respondent''s petition u/s 24 of CPC was allowed and the Civil Suit No. 36-A/10 which was pending before IIIrd Civil Judge, Class II, Raigarh, was transferred to the court of IInd Civil Judge, Class II, Raigarh. Brief facts of the case are that: the respondent herein, by filing an application u/s 24 of CPC, prayed for transfer of the case from the court of IIIrd Civil Judge, Class II, Raigarh to any other court on the ground that his Advocate is not appearing in the said court as he has some reservation in appearing before the said court.

The question therefore arises for determination of this court is whether on such grounds the case can be transferred from one court to other.

Section 24 of CPC gives general power of transfer to this court as well as to District Court. It is well settled law, until and unless the court is satisfied that the apprehension of bias or prejudice which a litigant expresses is a bona fide, an reasonable expression of apprehension which is proved by the circumstances and material placed by such applicant before the court where the application is moved, and application of this nature cannot be automatically ordered.

The transfer of a case from one court to another indirectly casts doubt on the competence and integrity of the judge from whom the case is sought to be transferred, and therefore, merely on the whim and surmises of the parties or for the reason that the Advocate appointed by him does not want to appear in the court, the case cannot be transferred from one court to another.

The Supreme Court in case of Mahabir Prasad Singh Vs. M/s. Jacks Aviation Private Ltd., has held: Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear.

The Supreme Court in the above case further held Change of court is not allowed merely because the other side too has no objection for such change. Or else, it would mean that when both parties combine together they can avoid a court and get a court of their own choice. We are not disposed to give such an option to the parties.

In view of above, the order passed by the District Judge, Raigarh, being not sustainable in law, deserves to be and is hereby set aside. Petition is accordingly allowed. District Judge, Raigarh, is directed to retransfer the case in the same court in which it was pending before transfer.