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2014 DIGILAW 85 (CHH)

Sheela Paul v. Pradyut Paul

2014-02-21

SANJAY K.AGRAWAL

body2014
ORDER Sanjay K. Agrawal, J. 1. This batch of transfer petitions were heard analogously and disposed of by this common order. Both the petitions have been filed by the petitioner-Smt. Sheela Paul under Section 24 of the Code of Civil Procedure, 1908 (in short 'the CPC') seeking transfer of civil suits pending before the Principal Judge, Family Court, Raigarh to any other Court of competent jurisdiction. The facts in nutshell, necessary for adjudication of these petitions, are as under: 1.1 The petitioner has filed two civil suits, i.e. Civil Suit No. 41A/2010 under Section 13(a) of the Hindu Marriage Act, 1955 for dissolution of marriage and Civil Suit No. 42-A/2012 under Section 9 of the Hindu Marriage Act, 1955 for restitution of the conjugal rights. 1.2 During pendency of the said civil suits, these transfer petitions have been filed stating inter alia that she made complaint against the Presiding Officer of the Family Court, where her cases are pending for adjudication stating inter alia that the conduct, attitude and behavior of the Presiding Officer towards her is not good, as Presiding Officer has not allowed his witness to give evidence freely and in complaint filed by her, the High Court has sought affidavit in support of the complaint and in compliance of that, she has already submitted an affidavit, and therefore, she has apprehension of bias/prejudice on the part of the Presiding Officer, therefore, aforestated two civil suits be transferred to any other Court of competent jurisdiction for hearing and disposal in accordance with law. 1.3 The respondent has entered into appearance and opposed the transfer petitions. 2. Mr. Amit Kumar Sharma, learned counsel appearing for the petitioner would submit that the petitioner has reasonable apprehension in her mind of not getting justice, as she has made complaint supported by an affidavit against the Presiding Officer of the Court, where aforesaid civil suits are pending consideration, therefore, there is valid and justifiable ground of transfer of her civil suits. 3. Replying the contention so raised, Mr. Abhishek Saraf, learned counsel appearing for the respondent would submit that the allegations made in the application do not make out a valid and justifiable ground for transfer, as such, the transfer petitions deserves to be rejected. 4. I have heard learned counsel for the parties and perused the papers available with the memo of transfer petitions. 5. Abhishek Saraf, learned counsel appearing for the respondent would submit that the allegations made in the application do not make out a valid and justifiable ground for transfer, as such, the transfer petitions deserves to be rejected. 4. I have heard learned counsel for the parties and perused the papers available with the memo of transfer petitions. 5. The petitioner has made application for transfer before this Court under Section 24 of the CPC. Section 24 of the CPC reads as under:-- "24. General power of transfer and withdrawal : (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 and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in the case of an order of transfer, either re-try it or proceed from the point at which it was transferred or withdrawn." 6. The power under Section 24 is conferred on the High Court and the District Court and the power of transfer can be exercised by these Courts at any stage either to transfer a suit or appeal pending before itself to any other Court subordinate to it and competent to try the same or to withdraw any suit or appeal pending before any Court subordinate to it and to transfer it to any other competent Court or to try and dispose off the same by itself. 7. The Section itself does not indicate the circumstances and on what, all aspects the power of transfer can be exercised. 7. The Section itself does not indicate the circumstances and on what, all aspects the power of transfer can be exercised. But it is a settled legal principle that an element of bias on the part of the Presiding Officer as against any of the parties to the proceedings is a valid and justifiable ground enabling the affected person to seek for transfer of the proceedings to any other Court. 8. Reverting back to the facts of the present case, it would be proper to notice the allegation made in the complaint so filed against the said Presiding Officer. Complaint made vide Annexure-A/2 states as under:-- 9. Similarly, petitioner's witness namely, Shri Sohan Rajput, has also alleged to made complaint vide Annexure- A/3 to the High Court. The relevant paragraph of the complaint states as under:-- 10. Thereafter, complaint alleged to be made by the some persons vide Exhibit-A/4, which reads as under:-- 11. A bare perusal of the above-quoted complaints would show that it is a general complaint with regard to the behavior alleged to be made by the Presiding Officer. Likewise, the complaint made by the petitioner's witness Shri Sohan Rajput was that the year was typed in deposition sheet incorrectly, for which, he made an application on 17/10/2012 under Order 18 Rule 17 read with Section 151 of CPC, which was rejected by the said Presiding Officer. The rejection of his application under Order 18 Rule 17 read with Section 151 of CPC, if any is by a judicial order and petitioner is free to challenge the same in accordance with law. 12. Likewise, the complaint made vide Annexure-A/4, is a general complaint and there is no allegation of prejudice or bias by the petitioner against the Presiding Officer while passing judicial order in the civil suits filed by petitioner. 13. The question that falls for consideration is whether the petitioner has made out any valid or justifiable ground to seek transfer of proceeding to any other Court or established sufficient ground for such transfer lies heavily upon the petitioner and further there is reasonable apprehension of a party to the suit that he might not get justice where the suit is pending because trial Judge is prejudicial to him. 14. 14. It is also well settled that transfer of case from one Court to another Court indirectly casts doubt on the competence and integrity of the Judge from whom the case is sought to be transferred. Mere presumptions or possible apprehensions are not sufficient therefor; only good and sufficient grounds, clearly set out in the order, may justify the transfer. 15. In case of Ratanlal v. Suresh Kumar AIR 1987 MP 178 , the Madhya Pradesh High Court has clearly held that transfer can only be ordered when the party has reasonable apprehension that justice will be denied to him. Para-12 of the report reads as under:-- "12. Transfer can only be ordered when the party has reasonable apprehension that justice will be denied to him. The mere fact that the party has suspicion in this regard would not constitute a valid ground for transfer. The fact that the Judge has taken a particular view in other case, is no ground for transfer because by arguments he may be persuaded to change his view. A judicial order passed by a Judge cannot legitimately be made the foundation for a transfer application. The proper remedy against it is by way of an appeal or revision." 16. Likewise, in case of Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati v. Ramji Tripathi and others AIR 1979 MP 50 , the Division Bench of the Madhya Pradesh High Court has held as under:-- "11. The plaintiff, as arbiter litis, has a right to choose his own forum and that right should not be interfered with except on very strong grounds. The search should be for justice and the Court must be satisfied that justice could more likely be done between the parties by refusing to allow plaintiff to continue his suit in the forum of his choice. The onus of establishing sufficient grounds for the transfer lies heavily on the applicant. There is unanimity of opinion that preponderance of balance of convenience is of prime consideration for transfer of suit. So the convenience of the parties is a valid ground of transfer though there is no unanimity about it being a material ground for transfer." 17. In case of Pushpa Devi Saraf and another v. Jai Narain Parasrampuria and others (1992) 2 SCC 676 , the Supreme Court has held as under:-- "6. So the convenience of the parties is a valid ground of transfer though there is no unanimity about it being a material ground for transfer." 17. In case of Pushpa Devi Saraf and another v. Jai Narain Parasrampuria and others (1992) 2 SCC 676 , the Supreme Court has held as under:-- "6. When a transfer petition is filed making such or similar allegations, the report if and when called for, should normally be confined to the allegations made against the impartiality or fairness of the Judge and not with respect to the correctness or other-wise of the orders passed by him. We are saying this because it appears that on the transfer petition being filed, the learned District Judge appears to have called for a report from the Presiding Officer. In his report, the Presiding Officer not only denies the imputations made against him but also explains and justifies the orders passed by him. This he did evidently because in the transfer petition, the correctness of some of his orders was questioned. In our opinion, a Presiding Officer of a court should not be put to such an explanation, barring exceptional circumstances. 7. Having heard the counsel for both the parties, we are of the opinion that the allegations in the transfer petition are not sufficient and do not warrant an order of transfer We are satisfied that the learned Presiding Officer was only trying to hear the case expeditiously in pursuance of the order of this Court dated 14.8.1991." 18. Thus, having ascertained the legal position and keeping in view the principle laid down in the aforesaid cases, it would clear that the petitioner has simply made a complaint of general nature against the Presiding Officer to the High Court, and thereafter, the complaint made by the petitioner's witness- Shri Sohan Rajput was that the year was typed incorrectly, for which, he made an application on 17/10/2012 under Order 18 Rule 17 read with Section 151 of CPC, which was rejected by the said Presiding Officer by a judicial order as stated in the complaint itself and against that further remedy to challenge the same is available with the petitioner further no other material has brought on record to demonstrate prejudice or bias on the part of the Presiding Officer and further progress of the complaint has also not brought on record by the petitioner. Therefore, I do not find any valid and justifiable ground to transfer the aforesaid civil suits to any other Court. Resultantly, both the transfer petitions are hereby dismissed. Appeal dismissed.