Smt. Chandrakala Bai Sharma vs Vijay Singh and Others

Hon''ble Shri Justice Sujoy Paul

The petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution to assail the orders dated 1.11.2012 (Annexure P-1) and 5.11.2012 (Annexure P/1-A). Petitioner preferred an application (Annexure P/2) u/s 151 CPC before the court below wherein it is stated that Case No. 26-A/2012 is transferred to the trial court from the court of Second Civil Judge Class-1 Shri Vikash Bhatele. It is stated in the application that three Advocates of defendants have cross-examined the witnesses because of which attitude of the plaintiff was seen by the Court of Shri Bhatele aforesaid and, therefore, remaining cross-examination should also be done before the said Court. This application was rejected by trial court by order dated 1.11.2012 on the ground that the matter is pending since 1977 and various Presiding Officers have dealt with the matter in different stages. Therefore, it cannot be ordered that the remaining proceedings should also be done before the same Court of Shri Bhatele. On the same date petitioner preferred another application on same subject which has been rejected. The petitioner then preferred an application u/s 24 of CPC before the learned District Judge who, in turn, rejected it by order dated 5.11.2012. The learned District Judge stated that the matter is transferred on administrative reason to a court having equally competent jurisdiction and reasons assigned in the application for transfer are not convincing.

Shri S.B. Mishra, learned senior counsel relied on the judgment on Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jajoo, in support of his contention.

I have heard learned senior counsel and perused the record.

The singular reason on which transfer was prayed is that the cross-examination of plaintiff was made before the Court of Shri Bhatele and, therefore, the said court should be continued. However, in catena of judgments the Apex Court has laid down the principles on which power to transfer can be exercised. This question is considered by Supreme Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and Others, and D.A.V. Boys Sr. Sec. School Vs. DAV College Managing Committee, On the basis of said Supreme Court judgments, the following tests can be culled out for the purpose of exercising powers u/s 24 of CPC:-

(i) balance of convenience or inconvenience to the plaintiff or the defendant or witness;

(ii) convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit;

(iii) issues raised by the parties;

(iv) reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending;

(v) important questions of law involved or a considerable section of public interested in the litigation;

(vi) "interest of justice" demanding for transfer of case, etc. are certain instances which are germane in considering the question of transfer.

A bare perusal of the aforesaid tests would show that none of the ingredients on which transfer can be made are available in the present case. There would be no inconvenience to the petitioner if matter continues before the trial court. No bias is alleged by the petitioner during the course of argument against the present Presiding Officer. Litigant cannot decide or chose as to where his matter should be heard; more so when matter is 35 years old and it cannot be forgotten that during this long time the matter must have been placed in various stages before various Presiding Officers. One party cannot be permitted to say that his matter should be placed before the same Presiding Officer who had heard the matter on a particular stage. The judgment cited by learned senior counsel in Vimal Chand Ghevarchand Jain''s case (supra) does not support him in any manner.

Considering the aforesaid and on the basis of tests laid down by Supreme Court, I find no reason to interfere in the orders impugned. On the basis of aforesaid analysis, petition cannot be entertained and is hereby dismissed.