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2022 DIGILAW 1527 (ALL)

Jabiullah v. Sakir

2022-09-21

J.J.MUNIR

body2022
JUDGMENT : J.J. Munir, J. This is an application, seeking transfer of Original Suit No. 1099 of 1994, Sakir v. Ilake and others, from the Court of the Additional Civil Judge (Jr. Div.) Vth, Basti be transferred to the Court of competent jurisdiction at Sant Kabir Nagar. 2. Heard Mr. Hanuman Deen, learned Counsel for the applicants and Mr. Sheetala Prasad Pandey, learned Counsel appearing on behalf of the opposite party. 3. The opposite party has not filed a counter-affidavit. As such, the averments in the affidavit remain unrebutted. However, the learned Counsel for the opposite party vehemently opposes the prayer for transfer on ground that will shortly be indicated. 4. According to the applicants, both parties are residents of Sant Kabir Nagar and the property is also located there. The suit was instituted prior to carvation of new District Sant Kabir Nagar in the year 1997. The Court was established later on. The submission is that now the said case ought to be transferred to the new judgeship of Sant Kabir Nagar. 5. The learned Counsel for the opposite party submits that the ground on which transfer sought is not tenable, because the trial of the suit at Basti is at a fairly advanced stage, where witnesses have been examined. 6. Upon consideration of the entire facts and circumstances, it is evident that the suit was instituted at a time when the new district of Sant Kabir Nagar had not been carved out of the existing District Basti. It is also not in dispute that the new district of Sant Kabir Nagar has been carved out in the year 2008. It is also common ground between parties that the suit property is located in the district of Sant Kabir Nagar now; not Basti. Quite apart, there is an averment in Paragraph No. 7 of the affidavit filed in support of the transfer application that both parties reside at District Sant Kabir Nagar and face much trouble in reaching the Court at Basti. The distance of District Court, Sant Kabir Nagar from the residence of both parties is about 10 kilometers. Moreover, the Courts at District Sant Kabir Nagar are now well established and promptly delivering judgments. It is also the applicants' case that the suit, that was instituted in the year 1994, is pending at Basti for the last 27 years. 7. The distance of District Court, Sant Kabir Nagar from the residence of both parties is about 10 kilometers. Moreover, the Courts at District Sant Kabir Nagar are now well established and promptly delivering judgments. It is also the applicants' case that the suit, that was instituted in the year 1994, is pending at Basti for the last 27 years. 7. This Court is of opinion that looking to the entire circumstances, the Court at Sant Kabir Nagar appears to be the Court within the local limits of which the immovable property, subject-matter of the suit, is situate. More than that, both parties live in the district of Sant Kabir Nagar at a place that is close by to the new District Court, that has been established there. The venue of litigation, subject to territorial and other jurisdiction, ought to be that which is convenient to parties. The contention of the opposite party that the trial of the suit is at a fairly advanced stage at Basti, would be relevant as a plea against transfer, if and only if the opposite party were able to demonstrate that the Judge at Basti, before whom the witnesses have been examined, is the same learned Judge, who has heard these witnesses. This is neither the pleaded case of the opposite party, who has not filed a counter-affidavit in any case nor any material on record pointed out that the ongoing trial at Basti is before a Judge, who has heard all witnesses and can deliver judgment. If some other Judge, different from the one who has heard witnesses at Basti, is to deliver judgment, it is of no consequence, whether the suit is heard at Basti or Sant Kabir Nagar. A Trial Judge gains his peculiar position by the fact that he is the same Judge, who has heard witnesses. If that be not so, the Trial Judge hardly fills the description of one. Since there is nothing to show that the Judge at Basti, who is hearing the matter is indeed the Judge, who has heard all witnesses or a substantial number of them, the Court at Sant Kabir Nagar, that is located closer to the residence of parties and is also the Court of territorial jurisdiction, ought to try the suit. 8. In the circumstances, this transfer application succeeds and is allowed. 9. 8. In the circumstances, this transfer application succeeds and is allowed. 9. Original Suit No. 1099 of 1994, Sakir v. Ilake and others, is withdrawn from the file of the Additional Civil Judge (Jr. Div.) Vth, Basti and transferred to the District Judge at Sant Kabir Nagar, who shall assign the suit to the Court of competent jurisdiction for trial in accordance with law. In the circumstances that the suit is pending for the past 27 years, it is ordered that the Trial Court shall proceed with the suit, fixing two dates of effective hearing every week and shall conclude the trial within four months next after hearing parties and their witnesses, who have already not been examined. The District Judge, Basti shall cause the records of the case to be transmitted forthwith to the District Judge, Sant Kabir Nagar. 10. Let a copy of this order be communicated to the Additional Civil Judge (Jr. Div.) Vth, Basti through the learned District Judge, Basti, the District Judge, Basti and the District Judge, Sant Kabir Nagar by the Registrar (Compliance).