Ramesh and Another vs Jubedabegum Abdul Kadar Kazi

S.S. Shinde, J.—Rule. Rule made returnable forthwith and heard finally with consent of the parties. This writ petition takes exception to the order dated 6-3-2013, passed by the learned Principal District Judge, Beed, in Misc. Civil Application No. 255 of 2011.

The learned counsel appearing for petitioners submits that defendant filed application for transfer of the Suit bearing Regular Civil Suit No. 28 of 2011 from the Court of Civil Judge Junior Division, Dharur to the Courts of Civil Judge Junior Division, Majalgaon and or Civil Judge Senior Division, Majalgaon.

The learned counsel appearing for petitioners submits that there was no affidavit, supporting the allegations made in the application filed by the original defendant. He invited my attention to the judgment of Madhya Pradesh High Court in the case of Sudarshan Jain Vs. Deep Chand Jain and Others, and submitted that the application for transfer of the case on mere allegations of bias against the Presiding Officer, without being supported by affidavit cannot be filed.

The learned counsel appearing for petitioners invited my attention to the paragraph No. 7 of the impugned judgment and order and submitted that the Principal District Judge, Beed has neither assigned a single reason nor expressed prima facie satisfaction about the allegations in the application for transfer of the suit from the Court of Civil Judge, Junior Division, Dharur to the Court of Civil Judge Junior Division, Majalgaon for hearing and disposal according to law.

The learned counsel further invited my attention to the reported judgment of the Supreme Court in the case of Jitendra Singh Vs. Bhanu Kumari and Others, and Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and Others, and submitted that the Principal District Judge ought to have expressed what reasons weighed with him for transfer of the Regular Civil Suit No. 28 of 2011 from the Court of Civil Judge, Junior Division, Dharur to the Court of Civil Judge, Junior Division, Majalgaon for hearing and disposal according to law. Therefore, he submits that impugned judgment and order deserves to set aside.

5A. On the other hand, learned counsel appearing for original defendant/respondent herein invited my attention to the provisions of section 24 of the CPC (Hereinafter referred to as "CPC" for short) and submitted that the order passed by the Principal District Judge, Beed taking recourse to section 24 of the CPC is administrative in nature. He submits that the Principal District Judge, even suo motu can transfer the proceeding and it is not necessary either to issue notice or assign any reasons. He submits that the Principal District Judge, in order to avoid any embarrassment to the Presiding Officer, did not give any reasons and after satisfying himself that the applicant has lost faith in the Presiding Officer, transferred the suit bearing Regular Civil Suit No. 28 of 2011 from the Court of Civil Judge Junior Division, Dharur, to the Court of Civil Judge Junior Division, Majalgaon.

The learned counsel submitted that none of the judgments cited by the learned counsel for petitioners is relevant and it is not expected of the Principal District Judge to assign any reason in support of his order for transfer of proceedings from one Court to another Court. Therefore, he submits that this petition is devoid of merits and same may be dismissed.

I have given careful consideration to the submissions advanced by the learned counsel for the parties and with the assistance of the learned counsel for the parties, perused the provisions of section 24 of the CPC and the grounds taken in the petition, and the impugned order passed by the Principal District Judge, Beed.

Upon careful perusal of the impugned order, it appears that the Principal District Judge thought it fit not to enter into the merits of the allegations against concerned Judge and observed that since the applicant has lost faith in the Presiding Officer, it is desirable that the civil suit should be transferred from the Court of Civil Judge Junior Division, Dharur to the Court of Civil Judge Junior Division, Majalgaon for hearing and disposal according to law.

It is true that upon careful reading of the provisions of the section 24 of the Civil Procedure Code, the Principal District Judge suo motu or in his administrative capacity can transfer the proceeding from one Court to another. However, in the facts of present case, the original defendant did file application u/s 24 of the CPC for transfer of the suit bearing Regular Civil Suit No. 28 of 2011 from the Court of Civil Judge Junior Division Dharur to the Court of Civil Judge Junior Division, Majalgaon. The notice was given to the other side and Principal District Judge after hearing the parties, has passed the impugned order. Therefore, in my opinion the Principal District Judge should have applied its mind to those aspects and prima facie satisfied as to the grounds put forward in the transfer application and ought to have passed the order one way or other, without entering into the controversy in the suit.

The Supreme Court in the case of Kulwinder Kaur (Cited supra), in the facts of that case, in para No. 17 of the judgment, has held that the High Court ought to have applied its mind to those aspects and prima facie satisfied as to the grounds put forward by the plaintiff in the transfer application and ought to have passed the order one way or other, without entering into the controversy in the suit.

In the facts of present case, it appears that the Principal District Judge has not gone into the merits of the allegations against the concerned Judge. In my opinion, the Principal District Judge should have gone into the contents of the application and should have prima facie satisfied himself that the case is made out for transfer. It is not necessary, that, the Principal District Judge should have given elaborate reasons, but requirement is that Principal District Judge should have prima facie satisfied himself on going through the contents of the application that the case is made out for transfer. In the facts and circumstances of this case the interest of justice would be met with, if the impugned order is set aside and parties are relegated before the Court of Principal District Judge, Beed for fresh adjudication of Misc. Civil Application No. 255 of 2011, in Regular Civil Suit No. 28 of 2011.

In the light of above, the impugned order is set aside, Misc. Civil Application No. 255 of 2011 is restored to its original file. The Principal District Judge, Beed to hear the said application afresh and after hearing parties, decide the same on its own merits within six weeks from today, keeping in view the provisions of section 24 of the CPC and the judgments of the High Court and Supreme Court, referred to hereinabove.

It is made clear that this Court has not expressed any opinion on the merits of the transfer application and the Principal District Judge shall decide the same in accordance with law.

The learned counsel for parties submitted that plaintiffs and defendant will appear before the District Court, Beed on 29-4-2013. The petition is allowed to above extent, and Rule is made absolute in above terms.