Prem Lata Verma v. Ist Additional District Judge — 1990 DIGILAW 1237 (ALL)

JUDGMENT S.H.A. Reza, J. - Invoking the jurisdiction of this Court under Article 226 of the Constitution of India the petitioner has prayed for issue of a writ in the nature of certiorari quashing the impugned orders contained in Annexures 1 and 3 to this writ petition passed by opposite parties 1 and 2. 2. The petitioner has filed a suit for permanent injunction against opposite party No. 3 on the basis of a registered sale deed dated 19-4-1965 alleged to have been executed by Sri Babu Ganpat Sahai, Advocate in favour of the petitioner and application under Order 39, Rules 1 and 2 CPC was also preferred. Munsif (North), Sultanpur by means of his order dated 17-3-1989 rejected the said application. Aggrieved, against the said order the petitioner preferred an appeal before the District Judge, Sultanpur. On 20-3-1989 the District Judge, faizabad fixed 27-3-1989 for the hearing of the appeal on the ground that the parties counsel wanted early hearing of the appeal. In the meantime, the District Judge passed an order to the effect that meanwhile parties shall maintain status quo. On 27-3-1989 from the side of the appellant an application was preferred that his counsel Sri J.P. Srivastava, Advocate was unwell and hence was unable to place his arguments. The application was allowed and the appeal was ordered to be listed on 17-7-1989 for arguments. On 22-4-1989 an application on behalf of the appellant alongwith the report of the Munsarim was preferred before the Incharge. District Judge, who ordered that it may be put up before the Presiding Officer. On 28-4-1989 in presence of the parties' counsel the file was placed before the District Judge. The District Judge passed orders vacating the interim order. On the next date i.e. 29-4-1989 1st Additional District judge received the file from transfer, who ordered for the registration of the appeal and fixed 1-5-1989 for disposal of the appeal. The District Judge also passed an order to the effect that till then fresh construction shall not be raised. The District Judge passed orders vacating the interim order. On the next date i.e. 29-4-1989 1st Additional District judge received the file from transfer, who ordered for the registration of the appeal and fixed 1-5-1989 for disposal of the appeal. The District Judge also passed an order to the effect that till then fresh construction shall not be raised. It was further averred in the writ petition that on 1-5-1989 an application for transferring of the said case from the Court of 1st Additional District Judge, Sultanpur to any other Court was preferred before the Lucknow Bench of the High Court, alleging that the son of the petitioner, Kamlesh Pratap has been working as an employee of class IIIrd in the Civil Court at Sultanpur and at the relevant time, was posted as Assistant Record Keeper. He had preferred a writ petition before this Court against the reversion order passed by the District Judge, Sultanpur. The said writ petition is still pending for final decision. It was further averred that a close relation of the petitioner's husband, one Sri Iqbal Bahadur Srivastava, is an employee of the Civil Court, Sultanpur who has filed a writ petition bearing No. 3884 of 1987, in connection with his promotion etc. for the post of Sadar Munsarim, District Sultanpur against the order passed by District Judge, Sultanpur and the said Sri Iqbal Bahadur Srivastava has also preferred a Contempt petition bearing No. 1899 of 1987 (sic) in which 12th May, 1990 has been fixed for personal appearance of the District Judge and the Chief Judicial Magistrate. Lucknow. It was also averred that some departmental inquiries were also pending against the son of the petitioner and her close relative Sri Iqbal Bahadur Srivastava which are being conducted by 1st Additional District Judge Sultanpur, Special Judge, Sultanpur and Vth Additional District Judge, Sultanpur. In view of the aforesaid ground it was averred that the said appeal be transferred to any other Court outside District Sultanpur. On the same date i.e. 1st May, 1989 Honble Mr. In view of the aforesaid ground it was averred that the said appeal be transferred to any other Court outside District Sultanpur. On the same date i.e. 1st May, 1989 Honble Mr. Justice B.L. Loomba was pleased to pass the following order: - "While there is no merit in the request for transfer of the appeal outside the district of Sultanpur, it is directed that Civil Miscellaneous Appeal No. 27 of 1989 be transferred by the District Judge, Sultanpur from the Court of the 1st Additional District Judge to any of the Courts of Second, Third or Fourth Additional District Judge, the matter is disposed off accordingly at the admission stage. Copy of this order may be issued on payment of usual charges by tomorrow." It was averred in the writ petition that the copy of the aforesaid order was obtained by the petitioner on 2-5-1989 and produced before the 1st Additional District Judge, Sultanpur on 3-5-1989 at 9 A.M. as the Courts were functioning during the morning hours. But it was submitted that the 1st Additional District Judge stated that arguments of the counsel had been heard on 1-5-1989 and the justice would be done. He returned the copy of the order passed by this Court to the petitioner. It was submitted that 1st Additional District Judge disobeyed the order passed by this Court and pronounced the judgment without considering the factual and legal aspect of the case, on the next date i.e. 4-5-1989. 3. It was mentioned that the learned District Judge was on leave on 3rd and 4th May, 1989 and the 1st Additional District Judge was Incharge District Judge, Sultanpur. Therefore, the aforesaid copy of the order passed by this Court was produced before the Incharge District Judge, Sultanpur 1st Additional District Judge, Sultanpur who absolutely refused to receive the same. 4. It was submitted that opposite parties 1 and 2 have not considered and discussed the arguments filed in support of the petitioner and rejected the application under Order 39, Rules 1 and 2 CPC and miscellaneous civil appeal with malafide and prejudiced mind and, therefore, the aforesaid order cannot be sustained in the eye of law. 5. On 26-5-1989 Hon'ble Mr. 5. On 26-5-1989 Hon'ble Mr. Justice U.C. Srivastava, as he then was, directed to issue notices to opposite party No. 3 to show cause as to why the petition be not admitted and ordered it to be listed in 1st week of July, 1989. Honble Judge was also pleased to pass an interim order to the effect that till then the opposite party No. 3 would not make any construction over the land in dispute. The 1st Additional District Judge, Sultanpur, opposite party No. 1 was directed to submit his explanation in respect of the averments made against him by 3rd week of July 1989. Inspite of the several orders passed by this Court ultimately on 19-4-1990 the 1st Additional District Judge, Sultanpur submitted his explanation in which he submitted that he was not aware of any relationship of petitioner's son with Sri Iqbal Bahadur Srivastava and was also not aware of the pendency of any transfer application before the Hon'ble High Court. On 1-5-89 petitioners counsel during the course of the arguments did not disclose that any such application was pending before the Hon'ble Court not any adjournment was sought on any ground. Had this fact been brought to his knowledge, he would have adjourned the date of hearing. He further submitted that arguments on the appeal were heard on 1-5-1989 and 3-5-1989 was fixed for judgment. As he was on leave on 3rd May, 1989 the Incharge of his Court fixed 4-5-1989 for judgment and the judgment was delivered on 4-5-1989. He further submitted that he had no knowledge of the order dated 1-5-1989 passed by Honble High Court. The petitioner never filed copy of the order dated 1-5-1989 nor verbally told about it. He vehemently rebutted the assertions of the petitioner that the petitioner on any person or her behalf produced the order passed by this Court either on 1-5-1989 at 9 A.M. or on 3-5-1989. In fact he was on casual leave on 3rd May, 1989 and had gone out of station. He had not attended the Court on the said date. No such copy of the order was produced before him either on 1-5-1989 or on 4-5-1989. Accordingly, he pronounced the judgment on 4th May, 1989. Had any such order was brought to his notice, he would have not pronounced the judgment and would have complied the same. He had not attended the Court on the said date. No such copy of the order was produced before him either on 1-5-1989 or on 4-5-1989. Accordingly, he pronounced the judgment on 4th May, 1989. Had any such order was brought to his notice, he would have not pronounced the judgment and would have complied the same. A counter affidavit has been filed in which more or less the same plea was taken. It is needless to mention that a heavy duty is cast upon a Court of law to function in a judicious manner. The conduct of the Presiding Officer should be above-board and the proceedings should have been conducted in such a manner as to avoid any apprehension in the mind of the litigant that justice may not be done to him. Justice should not only be done but should also appear to have been done. In the present appeal, the proceedings do not appear to have been conducted in a fair and judicious manner. On 20th March, 1989 the District Judge fixed 27th March, 1989 for hearing of the appeal as the parties counsel wanted an early hearing of the appeal. The Court directed that meanwhile the parties shall maintain status quo. The order passed by the District Judge directing the parties to maintain status quo was not time bound. It was subject to hearing of the appeal. The interim order was operative till the hearing of the appeal. The order could not be said to have lapsed on 27th March, 1989. Even if the hearing could not be held or completed on 27th March, 1989, on 28th April, 1989 the District Judge erroneously took a view that his order directing status quo to be maintained by the parties automatically stood vacated on 27th March, 1989. He further misdirected himself by stating that the petitioner did not apply for extension of the enforceability of the order dated 20-3-1989 when, admittedly, an application bearing No. 13/C2 preferred by the petitioner was before him. The said application was moved under Section 151 CPC reiterating the effectiveness of the order dated 20th March, 1989. It was also prayed in the said application that the respondents be restrained from raising any construction on the force of the said order. The said application was moved under Section 151 CPC reiterating the effectiveness of the order dated 20th March, 1989. It was also prayed in the said application that the respondents be restrained from raising any construction on the force of the said order. If the District Judge was of the view that the interim order was time bound and lapsed on 27th March, 1989 he could have very well passed an order on the application 13-C2. He could have treated the said application for extension of the stay order and very well passed an order extending the operation of the interim order. 6. The order of the District Judge directing the parties to appear on 29-4-1989 before the Court of 1st Additional District Judge, for obtaining an early date in the case, also smacks of a non-judicial approach particularly for the reason of the fact that on 27th March, 1989 on the application of petitioner appellant he had fixed 17th July, 1989 for arguments in the said appeal. Heaven would have not fallen if he would have fixed 17-7-1989 for arguments in the said appeal which he had himself fixed earlier. Although it was reasoned out in the order dated 28-4-1989 that the parties counsel themselves wanted that some early date be fixed for disposal of the appeal and as the diary of the Court was fully packed up the District Judge, Sultanpur transferred the case to the Court of 1st Additional District Judge and directed the parties to appear before him on the next date i.e. 29-4-1989. The 1st Additional District Judge instead of fixing 17-7-1989 which was earlier fixed for disposal of the case fixed 1-5-1989 for the disposal of the appeal. The arguments were heard on 1-5-1989 and 3-5-1989 was fixed for pronouncement of the judgment. The order-sheet of the proceedings of the appeal, which is on the record shows an unusual haste, which was not at all required because it raises unnecessary apprehension in the mind of a particular party, which seriously affects the integrity and impartiality of the Court. 7. Admittedly on 1.5.1989 this Court has directed that civil Miscellaneous Appeal no. 27 of 1989 be transferred by the District Judge, Sultanpur from the Court of 1st Additional District Judge in any of the Court of 1st, IInd or IIIrd Additional District Judge. 7. Admittedly on 1.5.1989 this Court has directed that civil Miscellaneous Appeal no. 27 of 1989 be transferred by the District Judge, Sultanpur from the Court of 1st Additional District Judge in any of the Court of 1st, IInd or IIIrd Additional District Judge. The certified copy of the said order was obtained by the petitioner on 2nd May. 1989. In the counter affidavit as well as in the explanation submitted by the 1st Additional District Judge, Sultanpur it was indicated that the 1st Additional District Judge was on leave on 3.5.1989, the Presiding Officer Incharge fixed 4-5-1989 for judgment and the judgment was delivered on 4.5.1989. It is rather amazing that the petitioner who went to the extent of filing a transfer application and obtained an order of transfer on the same day would not file the same before the Court on 3rd May, 1989 which was a date fixed for pronouncement of judgment. The petitioner has contended in paragraph 8 of the writ petition that he produced the copy of the said order to 1st Additional District Judge on 3.5.1989 at 9 A.M., but the learned 1st Additional District Judge, Sultanpur returned the copy of the said order passed by the High Court and did not pay any heed to it. In the supplementary affidavit filed by Rajesh Pratap, son of the petitioner it was alleged that he alongwhth his mother appeared before the 1st Additional District Judge, Sultanpur on 1st may. 1989 and filed an affidavit that the petitioner had contacted the learned counsel at Lucknow for moving an application under Section 24 of the Code of Civil Procedure before High Court of Judicature at Allahabad, Lucknow Bench, Lucknow for transferring the aforesaid miscellaneous civil appeal and prayed for grant of time to obtain a stay order from the High Court but without hearing the petitioner and her counsel the aforesaid case was fixed for orders on 3rd May, 1989. It was further averred that after obtaining a certified copy of the said order passed by this Court, it was produced on 3rd May, 1989 at 9 A.M. before the 1st Additional District Judge as the District Judge, Sultanpur was on leave on 3rd and 4th May, 1959, but the 1st Additional District Judge did not pay any heed and said that justice would be done in the case and the case was decided without hearing the petitioner and her counsel. 8. The question as to whether any such application or affidavit was filed before the Court of 1st Additional District Judge or not or the arguments were heard on 1st May, 1989 requires an investigation, as the original order sheet is not before this Court, hence it cannot be said whether the parties counsel signed on the order-sheet on 1st May, 1989 or not. The question as to whether on 3rd May, 1989 the 1st Additional District Judge, Sultanpur went on leave or not, also needs to be probed and also as to who was the Incharge District Judge on 3rd May, 1989 who fixed 4th May, 1989 for pronouncement of judgment. It is also to be seen whether the order passed on 4th May, 1989 was passed in presence of the parties counsel or not. 9. Leaving aside the controversy raised in the writ petition which can only be settled after a proper investigation, if the same is required either by Honble the Chief Justice or the Administrative Judge ; the fact remains that on 1.5.1989 the High Court directed that Civil Miscellaneous Appeal no. 27 of 1989 be transferred by the District Judge, Sultanpur from the Court of 1st Additional District Judge to any other Court of IInd, IIIrd or IVth Additional District Judge. As soon as the order was passed the jurisdiction of 1st Additional District Judge, Sultanpur ceased to exist and no order in the appeal could be passed. This Court is constrained to observe that the appeal should have not been decided in the manner it has been decided. Confidence in judiciary would be seriously impaired if orders are passed in such a manner. The order dated 4.5.1989 passed in civil miscellaneous Appeal no. 27 of 1989 is a nullity and deserves to be set aside. 10. This Court is constrained to observe that the appeal should have not been decided in the manner it has been decided. Confidence in judiciary would be seriously impaired if orders are passed in such a manner. The order dated 4.5.1989 passed in civil miscellaneous Appeal no. 27 of 1989 is a nullity and deserves to be set aside. 10. It was vehemently contended on behalf of the opposite parties that in view of the law laid down in Qamruddin case (1989 LCD 534) no writ petition lies against the grant or refusal of an injunction order. As this Court has already indicated that the order was a nullity, the aforesaid precedent is not applicable to the facts of the present case. 11. In view of what has been indicated hereinabove the order dated 4.5.1989 passed by the 1st Additional District Judge, Sultanpur in Civil Miscellaneous Appeal no. 27 of 1989 is quashed. The District Judge, Sultanpur is directed to restore back the appeal on its original number and transfer this appeal to any other Additional District Judge other than Sri U.S, Tripathi if he has not been transferred from Sultanpur to any other district, for its disposal in accordance with law. No order is made as to costs. A copy of this order will be sent to Honble the Chief Justice as well as to Honble the Administrative Judge concerned for information.