Subash Chandra Jha v. Bihar School of Yoga, Munger
1984-01-31
HARI LAL AGRAWAL, S.H.S.ABIDI
body1984
DigiLaw.ai
Judgment Hari Lal Agrawal, J. With the consent of learned counsel for both the parties, these two Cases were heard in full length at the admission stage itself so as to finally dispose them of. 2. Whereas tile civil revision application has been flied by defendant no. 1 against the order of the District Judge, Munger, rejecting his application under section 24 of the Code of Civil Procedure for transferring Title Suit No. 60 of 1971 of the court of First Munsif, Munger, to another court; the writ application has been filed by the plaintiff for a direction to the same said Munsif to dispose of the title suit without any further delay and, if necessary to extend the date of his stay till the trial is over, as the Munsif is under orders of transfer. 3. The suit was originally instituted in the year 1971 by one Raja Kamla Ranjan Roy for eviction of the defendants all licensees from the suit premises. Written statement was filed in 1974 after substituted service. A synopsis of the events was filed by the plaintiff to show that at every stage the intention of the defendant had been to prolong the pendency of the litigation. 4. The writ petitioner claims to have purchased the suit premises from the original plaintiff under a registered sale deed dated 27.1.1978 and on this basis it made an application for substitution as plaintiff. This prayer was not opposed by the defendants and the writ petitioner was substituted as plaintiff. The hearing of the suit comenced soon thereafter and the plaintiff closed its evidence on 8.11.1978 by examining four witnesses. The defendants also examined four witnesses by 10.11.78. Thereafter they started intercepting the disposal of the suit. First a petition was filed for expunging the evidence of P.W. 4 and when the petition was rejected several adjournments were sought for bringing stay order from this court. Ultimately the arguments commenced on 4.9.1980 on the plaintiff's agreement to address the court in the first instance. The plaintiff faced its argument on 13.9.1980 and thereafter the defendants argument started. From the synopsis it further appears that the defendants argument continued in parts on account of intervening time petitions till 6.1.1981. At this stage on 13.1.1981 the plaintiff made an application for amendment of the plaint seeking the defendants eviction as a monthly tenant.
The plaintiff faced its argument on 13.9.1980 and thereafter the defendants argument started. From the synopsis it further appears that the defendants argument continued in parts on account of intervening time petitions till 6.1.1981. At this stage on 13.1.1981 the plaintiff made an application for amendment of the plaint seeking the defendants eviction as a monthly tenant. This amendment was allowed by the order dated 17.12.81 and Civil Revision no.716 of 1981 by the defendants against this order of amendment was dismissed by this court with liberty to the defendants to file additional written statement Against certain intervening orders same infructuous civil revision applications were filed by the defendants, which are not worthy of mention. 5. At this stage of the proceeding on 9.9.82 the defendants filed a petition for framing a new issue on the question of pecuniary jurisdiction of the court which was rejected as the defendants were called upon to get ready for the argument. Then the defendants made an application for recalling P.W. 1 for further cross-examination which was rejected. The suit remained pending for practically about a year on some reason or the other, when an application was filed by one Sachidanand claiming himself to be the President of the substituted plaintiff for withdrawal of the suit itself. This application on being opposed by the writ petitioner was rejected and a civil revision against that order alee failed. Thereafter arguments were again heard on behalf of the plaintiff from 7.4.83 to 20.4.83, and on behalf of the defendants from 27.4.83 to 28.6.83 when for the first time a dispute regarding the identity• of the suit land was raised. It appears that there is some difference in the description of the property in the sale deed and that mentioned in the plaint, and the plaintiff got some municipal assessment registers marked to explain the discrepancy. The defendants again came to this court in civil revision which was dismissed with an observation to enable the defendants to give an opportunity for adducing evidence in rebuttal. 6. The defendants then raised a new controversy for examining Swami Shri Satyanand and Swami Shri Sachidanand being the President of the plaintiff on 8.10.83. The prayer was allowed on costs and time was wasted by the defendants in taking summonses against the witnesses.
6. The defendants then raised a new controversy for examining Swami Shri Satyanand and Swami Shri Sachidanand being the President of the plaintiff on 8.10.83. The prayer was allowed on costs and time was wasted by the defendants in taking summonses against the witnesses. In the mean time the trial court having come to know of the transfer application having been filed in the court of the District Judge stayed its hands from further hearing and when the District Judge rejected the transfer application by the impugned order dated 3.11.83, it recalled the order for examining two witnesses. The petitioner came to this court in civil revision and a learned single Judge of this court directed the court below to permit the petitioner to examine the two witnesses and summonses were accordingly issued against the witnesses but the service report showed that whereas Swami Shri Satyanand had gone on foreign tour. Swami Shri Sachidanand was not found at his place of residence. In view of this service report the court below closed the case of the defendants. 7. The case of the defendants in this regard as made out in the instant civil revision application is that Swami Shri Sachidanand was always represented by his lawyer and the service report in this regard was wrong and that Swami Shri Satyanand was returning in April 1984 and the court should have waited till his return. To my question put to Mr. Binod Kumar Roy, appearing for the defendant-petitioner, as to what advantage he could expect from the evidence of either Swami Shri Sahidanand or Swami Shri Satyanand when admittedly they Were the men of the plaintiff he replied that he would cross-examine them with respect to the identity of the suit property. The reply and the procedure followed by the trial court which has been confirmed by a learned single Judge of this court, is unknown to me, Nor Mr. Roy could convince me as to whether this was permissible under the Code of Civil Procedure. His only emphasis was that the order of the trial Court having been maintained by a learned single Judge, this Court in the writ jurisdiction was not competent to review the said order or take a different attitude. 8.
Roy could convince me as to whether this was permissible under the Code of Civil Procedure. His only emphasis was that the order of the trial Court having been maintained by a learned single Judge, this Court in the writ jurisdiction was not competent to review the said order or take a different attitude. 8. Unlike the code of Criminal Procedure, there is no provision in the Code of Civil Procedure empowering the court to summon any witness to give evidence as a court witness. For non-examination of any material witness by either of the contesting parties, perhaps the only available advantage is an argument of adverse inference for withholding any material evidence from the court and nothing more. On merits Mr. Roy's contention was that inasmuch as the municipal registers were exhibited by the plaintiff to overcome the discrepancy in the description of the suit property the defendants might take evidence by examining those two Swamis as to actually what properties they had purchased. Mr. Lalnarayan Sinha who appeared for the plaintiff, then indicated his willingness for expunging from the record those two exhibits inasmuch as the description or the suit property with reference to its boundary was sufficient for the court for passing an effective and executable decree in view of the well known principle false demonstration non noset’ (see A.I.R. 1956 patna 349) - Sheodhyan Singh and others V. Mt. Sanichara Kuer, & ors) if the defendant argued for the completion of the hearing. The first and immediate reaction of Mr. Roy was acceptance of this offer but soon he turned round and said that since his client was here he was not prepared to take the responsibility on his shoulder, and on consultation with his client he refused to agree to this offer of the plaintiff-obviously this would have obviated all the botherations which the defendants have been advised to take. 10. These are all the relevant facts for the purpose of appreciating the point involved in both the cases.
10. These are all the relevant facts for the purpose of appreciating the point involved in both the cases. The ground for transferring the suit from the Court of the learned Munsif is an allegation that one 'Sadanand Singh Karpardaz of the Bihar School of Yoga (Plaintiff) was found entering and coming out of the residence of the Munsif on the night of 26th October, and hence the applicant apprehended that Munsif may not do justice in the case', The learned District Judge while considering this ground of transferring the suit has made the following observations in paragraphs 8 and 10 of his order: “.... I am fully conviced that there is no such ground made out as could reasonably give any apprehension in the minds of the applicant that he would not get justice from the court of Munsif 1st. There is nothing on the record to indicate that Munsif 1st passed any order in favour of the plaintiff which should not have been passed rather it appears that the learned Munsif bad allowed the petition of the applicant, For summoning Sri Swami Satyanand Sbaraswati despite a rejoinder filed on 4.10.83 was hardly a very judicious exercise of discretion ……... I find that wherever learned lower court exercised the discretion it has always been exercised in favour of the applicant and he cannot legitimately make a grievance that he would not get justice in the court of Munsif, 1st". 11. On examining the relevant facts and circumstances enumerated above, I also bold a some what similar view Apart from tile fact that the allegations are very vague and can be concocted and alleged very easily. Mr. Lal Narayan Sinha seems to be very right in his submission, if I say so with great respect that if the suit is transferred to any other court or for the matter of that, the present Presiding Officer is allowed to leave the suit un-disposed of, then all the long drawn hearing and arguments which are said to have come to a concluding stage would be lost and this 14 years old suit for eviction, will be delayed indefinitely, putting the parties to great harassment and cost.
I am inclined to take the view that the ground for transferring the suit is fishy and concocted and, in any event, is not sufficient for raising any reasonable and bona fide apprehension in the mind of an ordinary litigant that he would not get justice. It therefore, dismiss the civil revision application, 12. Coming to the writ application, I am of the view that it is not the domain of this court in the writ jurisdiction to issue such kind of mandates to any subordinate civil court to dispose of this or that proceeding within a particular time limit on the facts and in the circumstances of a case like the present one, It is a matter on the administrative side of this court. I was told that the learned Munsif has been ordered to give charge on or about the 8th February, 1984 only. It is difficult to conceive as to bow only in the intervening one week's time be could complete the proceeding and deliver the judgment. It, therefore, seems necessary that while directing the learned Munsif to conclude the hearing and deliver judgment in the suit, some reasonable time must be allowed to him, which in any event should be a clear six weeks time. I would therefore, direct this court on its administrative side to examine this aspect of the matter at once and issue necessary instruction for staying the transfer orders of Shri Uday Kant Thakur, Munsif, First Court, Munger, till he dispose of title suit no. 60 of 1971. 13. In the result, the writ application is dismissed subject to the observations made above. Applications dismissed.