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2021 DIGILAW 1114 (ALL)

Anuj Kumar v. Kshama

2021-09-24

J.J.MUNIR

body2021
JUDGMENT : J.J. Munir, J. 1. This transfer application, under Section 24 of the Code of Civil Procedure, has been instituted by Anuj Kumar, seeking transfer of Matrimonial Case No. 589 of 2017, Kshama vs. Anuj Kumar, under Section 12 of the Hindu Marriage Act from the Additional Principal Judge, Family Court, Gautam Budh Nagar to any nearby district. 2. Heard Mr. Prakhar Srivastava, learned Counsel for the applicant and Mr. Abhishek Gupta, learned Counsel appearing on behalf of the opposite party. 3. A perusal of the grounds of transfer does not indicate that it is, in fact, a case for an inter-district transfer on grounds such as convenience of parties or other germane grounds to move the case out of the district. The transfer has been sought primarily on the ground that doubt the impartiality of the Judge. The reason, the applicant does not expect the Judge to decide fairly, is an inference drawn by the applicant from certain events in the course of proceedings. It is asserted in the affidavit that the applicant, who is a respondent to the petition for grant of a decree of nullity, made an application under Order VII Rule 11 CPC asking the Court to reject the petition. The ground urged in the application under Order VII Rule 11 CPC is that the petition for a decree of nullity is ex facie barred by the statutory limitation inasmuch as a period of one year has elapsed between the date of marriage and presentation of the petition. The said application was rejected by the Trial Judge vide order dated 17.03.2021, which the applicant says the Judge has done wrongly and illegally. 4. It is asserted that the applicant had cited authorities before the court in support of his case for a rejection of the petition, but the Trial Judge did not refer to any of those authorities while writing the order refusing to reject the petition under Order VII Rule 11 CPC. It is then asserted that the applicant moved an application on 18.03.2021 before the Trial Court to allow him fifteen days' time to file an appeal to this Court, but the learned Judge rejected that application, fixing 19.03.2021 for hearing. It is then asserted that the applicant moved an application on 18.03.2021 before the Trial Court to allow him fifteen days' time to file an appeal to this Court, but the learned Judge rejected that application, fixing 19.03.2021 for hearing. It is also asserted that on 19.03.2021, the learned Counsel for the applicant moved another application before the Trial Judge praying that he may be allowed time to file an appeal from the order dated 19.03.2021 to this Court, but the Trial Judge appeared adamant to decide the case. It is inferred from these facts that the Court appeared to be “interested” to decide the case. 5. It is averred in paragraph 11 that from the attitude of the learned Trial Judge, it is apparent that he was “very much interesting in this case for deciding the matter as early as possible”. It is also averred in paragraph 12 that the attitude of the Trial Court clearly shows that the Court was leaning in favour of the opposite party and the applicant had no hope of justice from the learned Judge. 6. A counter affidavit has been filed on behalf of the opposite party, who has denied these allegations. It is asserted in paragraph no. 8 of the counter affidavit that the applicant is lingering on the petition under Section 12 of the Hindu Marriage Act, indulging in dilatory tactics. The opposite party, therefore, moved a petition under Article 227 being Matter under Article 227 No. 1461 of 2020 before this Court seeking a direction to the Principal Judge, Family Court, Gautam Budh Nagar to decide the petition expeditiously and within a specified time. This Court disposed of the said petition by an order dated 20.02.2020, reasoning and directing in the following terms: “The courts cannot be held to ransom by the conduct of the parties or the strikes of the counsels. The process of law has to run its course unimpeded by any such obstructions. The courts have to pass appropriate orders in accordance with law when the parties or counsels are not cooperating with the trial proceedings. The court proceedings cannot come to a stand still under any circumstance. In view of the preceding discussion, the matter is remitted to the learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar before whom the Original Suit No. 589 of 2017 (Kshama Vs. Anuj Kumar) is pending. The court proceedings cannot come to a stand still under any circumstance. In view of the preceding discussion, the matter is remitted to the learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar before whom the Original Suit No. 589 of 2017 (Kshama Vs. Anuj Kumar) is pending. The following measures shall facilitate the learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar, to dispose of the said proceedings expeditiously and in light of the statutory mandate: (I) The learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar is directed to decide the Original Suit No. 589 of 2017 (Kshama Vs. Anuj Kumar) preferably within a period of six months from the date of receipt of a certified copy of this order. (II) The learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar shall not grant any unnecessary adjournment to the parties. (III) In case any adjournment is granted in the paramount interest of justice, the learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar shall impose costs not below Rs. 5,000/- for each adjournment. (III) In case the counsels abstain from work on account of strike call, the learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar shall proceed in the absence of such counsels and pass appropriate orders. (IV) The learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar shall record the names of counsels who abstain from work pursuant to strike call and do not appear before the learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar and shall not permit such counsels to appear in this case on all future dates of hearing. (V) The learned trial court/learned Principal Judge, Family Court, Gautam Budh Nagar shall proceed with the trial on a day to day basis, if required, to ensure that the all endeavours are made to decide the suit preferably within a period of six months.” 7. It is averred in paragraph no. 9 that despite the order dated 20.02.2020 passed by this Court, the applicant was lingering on the matter by moving frivolous applications and objections to delay proceedings. It is pleaded in paragraph no. It is averred in paragraph no. 9 that despite the order dated 20.02.2020 passed by this Court, the applicant was lingering on the matter by moving frivolous applications and objections to delay proceedings. It is pleaded in paragraph no. 10 that on 11.02.2021, the applicant made an application under Order XIV Rule 5 CPC asking the Court to frame a new issue to the effect: “whether the petition u/s 12 of Hindu Marriage Act is time barred as it is given after 1 year of marriage”. It is pointed out that the Court did frame a new issue vide order dated 13.03.2021 and fixed 08.03.2021 for address of arguments. At this stage, the applicant moved an application under Order VII Rule 11 CPC to reject the petition on the same ground, where the Court had earlier acted on the application under Order XIV Rule 5 and framed an issue. 8. I have considered the rival submissions of parties and perused the record. 9. The allegations in the affidavit imputing prejudice or bias to the Presiding Officer of the Family Court on the ground alone that the Judge was trying to expedite hearing of the petition and turning down dilatory motions, is ex facie without substance. Here, the Court notices that there is a very detailed order passed by this Court directing the Family Court Judge on 20.02.2020 to expedite proceedings of the petition for a decree of nullity, where the Judge was expected to decide the petition within six months from the date of receipt of a copy of that order. There are directions to impose costs in case of adjournment and record names of counsel who abstain from work pursuant to strike calls. This Court has directed the Family Court Judge to proceed with the trial on a day-to-day basis, a time frame of six months being allowed to conclude all proceedings. 10. In the circumstances, hardly any fault can be found with the Trial Judge's conduct in expediting proceedings and turning down a motion under Order VII Rule 11 CPC, particularly when the plea involved in the said motion was already subject matter of consideration as a preliminary issue. Quite apart, the fact that a Judge is enthusiastic or works with dispatch to conclude a trial or other proceedings, cannot be an index generally about the Judge's bias. Quite apart, the fact that a Judge is enthusiastic or works with dispatch to conclude a trial or other proceedings, cannot be an index generally about the Judge's bias. It would be very unsafe to infer bias from the conduct of a Judge, who proceeds with a case swiftly, more so when he is doing so under supervisory directions issued by this Court to proceed and decide expeditiously within a specified time. It is, indeed, ironical that there is a complaint to be found amongst the public in general and the litigants in particular about unsavory Court delays and liberal adjournment of causes. This case is a classic illustration of how litigants themselves contribute very often to delays in Court. It is absolutely unacceptable conduct for a litigant to raise a finger at a Judge because the Judge endeavours to proceed expeditiously with a cause. This kind of conduct requires to be put down with a heavy hand. 11. This Court does not find the slightest of reason to accede to the applicant's prayer for transfer. Also, this Court is of firm opinion that given the nature of allegations and the conduct of the applicant, deterrent costs are required to be imposed upon him so as to discourage such irresponsible allegations being made that deflect the smooth course of justice. 12. In the result, this application fails and is dismissed with costs in the sum of Rs.25,000/- payable by the applicant to the opposite party. The costs shall be remitted in the account of the opposite party within a month by the applicant through an appropriate instrument, bank transfer or electronic transfer. In the event, costs are not paid within a month, it shall be the duty of the Collector, Gautam Budh Nagar to ascertain the fact, whether costs have been paid by the applicant to the opposite, and if not, he will immediately recover the sum of money due in costs as arrears of land revenue from the applicant and remit the same to the opposite party in account. 13. Let this order be communicated to the Additional Principal Judge, Family Court, Gautam Budh Nagar concerned through the Principal Judge, Family Court, Gautam Budh Nagar and to the Collector, Gautam Budh Nagar by the Registrar (Compliance).