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Allahabad High Court · body

2014 DIGILAW 3684 (ALL)

Liyaqat v. Mohd. Akram

2014-12-09

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya, J. Sri Namit Srivastava, learned counsel has put in appearance on behalf of the respondents. 2. Heard Sri Arun Kumar Singh, learned counsel for the petitioner and Sri Namit Srivatava, learned counsel appearing for the respondents. 3. By means of this writ petition the petitioner has challenged the order of the District Judge rejecting his application for transfer of SCC Suit No. 21 of 2009 from the current court to any other court under Section 24 of the CPC. 4. The ground for seeking such transfer was that the said suit was decreed ex parte and the application of the petitioner for the recall of the ex parte decree under Order IX Rule 13 CPC has not been decided and an application under Section XVII of the Provincial Small Cause Courts Act, 1887 has been filed which has been rejected. Another stand taken is that the petitioner has made an application for calling for the commission report which has been rejected and, therefore, it has been stated that the court below was biased against the petitioner. 5. So far as the application of the petitioner for calling the commission report is concerned, it is the sole prerogative of the court to call for the commission report or not, in case of any doubt in the mind of the court and it cannot be insisted upon by the parties to the suit. Therefore, on this ground it cannot be said that it reflects the bias of the court concerned. Similarly, the rejection of the application under Section 17 of the Small Cause Courts Act, Order IX Rule 13 CPC is absolutely correct. Since Section 17 of the said Act provides for condition under which an ex parte decree can be recalled and that is at the first date of hearing, the entire decreetal amount has to be deposited and in case such an amount is not deposited, the application under Order IX Rule 13 CPC cannot be entertained. 6. As such, in my view, the court has acted in accordance with law which cannot be said to be reflecting any bias for transferring the case from the present court to any other court. 7. There is no merit in the writ petition. It is, accordingly, dismissed.