B. K. Ghosh v. R. K. Joysurendra Singh — 1955 DIGILAW 41 (GAU)

ORDER This is an application under S. 24, C. P.C. read with S. 151, C.P.C. for obtaining a transfer of civil appeal No. 91 of 1955 from the Court of. the learned District judge, Manipur to some other Court of competent jurisdiction. 2. It appears that the title suit No. 81 of 1953 was instituted on 9-7-1953 and it was heard and decided by the learned Additional Munsiff on contest on 16-7-1954. This suit was for ejectment of the present petitioner from the house situated on plot No. 10 of Cimson Road, Imphal on the allegation that the plaintiff was fee owner of the house and the defendant got it for one year commencing from 1-5-1952 through the agreement of lease dated 5-5-1952, and even though the period of lease expired ort 30-4-1953, the present petitioner did not vacate the premises. The defendant-petitioner was treated as a trespasser. 3. The petitioner contended that no ejectment notice was served on him and it had been agreed between the parties that if the defendant would, continue to pay rent regularly the term of the lease would be extended from 5-5-1953 and the plaintiff had assured him that this agreement would be adhered to. 4. The learned Additional Munsiff dismissed: the suit and so the Civil Appeal No. 81 of 1954 was filed by the plaintiff in the Court of the learned District Judge on 26-8-1954. This appeal was decided, in the absence of the present petitioner against the latter on 30-12-1954, and so the present petitioner brought a second appeal No. 8 of 1955 in this Court, on 28-2-1955 and the appeal was remanded for being heard on the merits to the lower appellate Court the petitioner has now contended that he has reasonable apprehension that he would not get justice in the Court of the learned District Judge and so the appeal should be transferred to some other Court. 5. It has been contended on behalf of the applicant that the learned District Judge rejected two adjournment applications filed by the petitioner even though these applications were supported by medical certificates. It has further been contended that the learned District judge gave very short! dates and was thus unduly hurrying through this matter. 5. It has been contended on behalf of the applicant that the learned District Judge rejected two adjournment applications filed by the petitioner even though these applications were supported by medical certificates. It has further been contended that the learned District judge gave very short! dates and was thus unduly hurrying through this matter. The third contention on behalf of the present petitioner is that the learned District Judge did not touch many material points at the time when the appeal was allowed on 30-12-1954 and ejectment was ordered forthwith although the opposite party had not asked for any such relief. Lastly, it was contended that some sarcastic remark had been made by the learned District Judge in his Judgment dated 30-12-1954 against the petitioner. 6. The opposite party has urged in reply that the applications for adjournment were rejected on good grounds and the learned District Judge has not been, in any way, unfair to the petitioner. The mere fact that some material points have not been touched by the learned District Judge in his judgment dated 30-12-1954, should be no ground for transfer when that judgment has already been set aside by this Court. The fact that the learned District Judge tried to expeditiously decide this case can in no sense be deemed to be a ground for transfer. According to the opposite parry the learned District Judge was perfectly justified in ordering ejectment forthwith as the present petitioner was deemed to be a trespasser. There is no sarcasm in the judgment of the learned District Judge against the present petitioner according to the contesting opposite party. 7. According to the opposite parry the learned District Judge was perfectly justified in ordering ejectment forthwith as the present petitioner was deemed to be a trespasser. There is no sarcasm in the judgment of the learned District Judge against the present petitioner according to the contesting opposite party. 7. Section 24 of the Code of Civil Procedure runs as follows : "(1) On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage - (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it, and - (i) try or dispose of the same : or (ii) transfer the same for trial or disposal to any court subordinate to it competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn ......" 8. This section gives general power of transfer of all suits, appeals and other proceeding and this power may be exercised at any stage of the proceeding and even suo motu without an application. As a general rule no party should be allowed to choose a forum he likes at the appellate stage and so the burden lies on the petitioner to make out a strong case for a transfer. There is no doubt that transfer has been ordered where the expenses and difficulties of the trial were found to be so great as to lead to injustice, even though it was held that a mere balance of convenience in favour of another Court was not a sufficient ground for transfer, vide Diwan Singh v. Arjun Sha Singh, AIR 1930 Lah 944 (A). If the witnesses are found to be the residents of a particular place where documents required to be proved in the case were executed and the defence turned upon legal evidence, transfer under this Section has been allowed : vide Inayatullah v. Nisar Ahmad Khan, AIR 1922 All 65 corresponding to 65 Ind Cas 782 (B). If the witnesses are found to be the residents of a particular place where documents required to be proved in the case were executed and the defence turned upon legal evidence, transfer under this Section has been allowed : vide Inayatullah v. Nisar Ahmad Khan, AIR 1922 All 65 corresponding to 65 Ind Cas 782 (B). Another ground of a transfer is a pecuniary or .other personal interest in the presiding Judge vide Loburi v. Assam Railway and Trading Co. Ltd., 10 Cal 915 (C). Lastly a transfer has been allowed where it is proved that the applicant has reasonable apprehension that he will not get fair trial, vide Khwaja Ahad Shah v. Mt. Ayshan Begum, AIR 1923 Lah 564 (D) in which it has been held that in dealing with an application for transfer of a suit it is the apprehension on the part of the applicant that he will not get fair and impartial trial of the suit in the Court in which it is pending that should receive consideration; but the apprehension must be such as a reasonable man might reasonably be expected to entertain : vide also Gaza Dhar Parshad v. Sohan Lal, AIR 1934 Lah 762 (E). In the present case the petitioner has that he has reasonable apprehension that he would not get a fair trial before the learned District Judge and it is to be seen whether his apprehension is such as a reasonable man might reasonably be expected to entertain. 9. So far as the first allegation of the petitioner is concerned, I find the report of the learned District Judge dated 19-7-1955 that the first application for adjournment dated 26-11-1954 was presented personally by the petitioner and the petitioner was found by the learned District Judge to be normal. The second application for adjournment was presented by one B.K. Bhattacharya who had no formal power-of-attorney and this application was not pressed, and so it was naturally rejected. It cannot be said, therefore, that the learned District Judge was in any way prejudiced against the present petitioner when he rejected those two applications. The second application for adjournment was presented by one B.K. Bhattacharya who had no formal power-of-attorney and this application was not pressed, and so it was naturally rejected. It cannot be said, therefore, that the learned District Judge was in any way prejudiced against the present petitioner when he rejected those two applications. The allegations that the learned District Judge made a remark that "It was nothing but delaying tactics and there was no valid reason to grant a single adjournment", have been categorically denied by the learned District Judge in his report, and so I do not find any force in this contention of the petitioner. 10. The next contention of the petitioner that the learned District Judge did not deal with the material points in his judgment, D/-30-12-1954, cannot be any ground for transfer nor will the fact that the appeal was decided against the present petitioner be of any material importance vide Md. Ashraf v. Butamal , AIR 1944 Lah 400 (F), in which it has been clearly laid down that a transfer of a case should not be ordered for reasons of sentimentality, but only if good grounds are made out for it. Section 24, C.P.C. should not be used to give an indirect sort of anticipatory appeal not to a superior Court but to a Court of equal jurisdiction. It was further held in this case that it would be a mere sentimentality to give the applicants an opportunity to "try their luck" in another Court, on the ground, that they might find some difficulty in persuading the Judge before whom the proceedings for resisting execution were going on that his previous decision was wrong. Moreover, there was no reason to suppose that the Judge would not decide the case on the materials before him. The judgment of the learned District Judge dated 30-12-1954 has already been set aside and if the material points were not dealt with at that stage they will be dealt now after arguments are fully heard on them and so there is no scope for misapprehension on this account. The judgment of the learned District Judge dated 30-12-1954 has already been set aside and if the material points were not dealt with at that stage they will be dealt now after arguments are fully heard on them and so there is no scope for misapprehension on this account. The fact that the learned District Judge had at the time of passing the judgment dated 30-12-1954, ordered ejectment forthwith, would also be no ground for transfer, because that order would legally follow when the present petitioner was held to be a trespasser and the rulings reported in - Sitaram Rastogi v. Balak Ram Dubey, AIR 1933 Oudh, 154 (G), where the District Judge who heard an appeal decided the appeal on the entire evidence on all points; Giridhari Lal v. Ashfag Ali Khan, AIR 1934 All 448 (H), where Court had discussed a suit pending before it outside the Court with a relation of the party; and Srirangam Municipality v. R.V. Palaniswami Pillai, AIR 1951 Mad 807 (I) in which en account of the closure of the subordinate Court it became impossible for the litigant to obtain relief, do not apply to the present case. 11. Reliance has been placed by the petitioner on Rupendra Dev Raikut v. Asrumati Devi, AIR 1951 Cal 286 (J), Pothan Chandy v. Ouseph Kochouseph, AIR 1951 Trav-C 12 (K) in which it has been laid down that where the lower Court made remarks about the demeanour of the witnesses that "witness struck me as unscrupulous", there was reasonable apprehension in the mind of the petitioner that he would not get justice do not apply to the present case as the learned District Judge did not make any such remark in his judgment dated 30-12-1954. The present petitioner is a lawyer of some standing and he very well knows that a case is to be decided on the materials on the record, and at the time when the other party is not present all the points are not dealt in the judgment in detail. As such he should not feel in the present case that he is not likely to get fair hearing before the learned District Judge. 12. As such he should not feel in the present case that he is not likely to get fair hearing before the learned District Judge. 12. The next contention of the petitioner that the learned District Judge expedited the hearing of the appeal is, in my opinion, no ground for transfer at all, for Courts are in duty bound to see that all the cases and appeals before them are decided as expeditiously as possible, without in any way prejudicing any of the parties. 13. Regarding the alleged sarcasm, the argument is based on the following extract from the judgment ("If this is allowed to the defendant-respondent, then he may be allowed to prove by oral evidence to claim the house as his own after the expiry of one year if he proves so by adducing oral evidence".) In my opinion, there is no sarcastic remark in this passage and all that the learned District Judge means was that there was an oral contract for extending the period of tenancy beyond one year when the written lease had been executed for a period of one year only. In In re Tanguturn Sriramulu, AIR 1916 Mad 763 (1) (L) it was held that an expression of opinion by a, Judge as to the character of the plaintiff or his paper is no ground for transfer when the expression of opinion was elicited by the conduct of the plaintiff himself. In the present case, the learned District Judge has discussed certain possibilities and he does not appear to have cast any aspersion on the present petitioner. As such I am definitely of opinion that the present petitioner should have no reasonable apprehension and as such there is no good ground for transfer of the appeal No. 81 of 1954 to any other Court. 14. The present application for transfer is, therefore, rejected. The parties will bear their own costs as the petitioner appears to have been sufficiently inconvenienced during his serious illness on account of different hearings in the appeal. The record of this case will be sent back to the Court of the learned District Judge, who will give the parties reasonable opportunity for preparing themselves for arguments and the appeal will be heard on the merits. Application rejected.