1. Heard Sri Shashi Nandan, Senior Advocate, assisted by Sri Prabhakar Dwivedi, learned counsel for the applicant, Sri K.R.Sirohi, Senior Advocate, assisted by Sri Pankaj Dubey, learned counsel for opposite party and perused the record.
2. This transfer application has been filed under Section 24 C.P.C., seeking transfer of non admitted Arbitration Appeal No. Nil of 2014 (Atul Gupta Vs. Amit Agarwal) pending in the Court of District Judge, Meerut to any other District Judge of any nearby District making allegations against Sri Amar Singh Chauhan, District Judge, Meerut. Paras 23 to 26 of the affidavit, filed in support of transfer application contain allegation, which read as under:
"23. That at about 3.30 p.m. the appeal filed under section 37(2)(b) of Arbitration and Conciliation Act, 1996 by the respondent was taken up before the District Judge Meerut then the time was sought from the counsel for the applicant to file objection as in the said appeal the caveat of the applicant was already filed then in utter surprise the District Judge Meerut Sri Amar Singh Chauhan told to the counsel for the applicant to prepare the objection within 30 minutes so as to hear the matter at 4.00 p.m. and since it was not possible to prepare the objection towards the said appeal within 30 minutes and as such only after various request and persuasion, the District Judge Meerut fixed the next date as 03.11.2014. It is also stated that on 30/31.10.2014, the elections of District Bar Association was scheduled.
24. That as the earlier occasion also the present Presiding Officer/Sri Amar Singh Chauhan District Judge Meerut has completely ignored the arguments and objection filed by the petitioner and being prejudiced he has passed the order dated 20.12.2013. Further more the present District Judge Meerut is much interested to pass interim order in favour of respondent due to which earlier on 29.10.2014 when the case was taken up, the Presiding Officer earlier granted only 30 minutes time to prepare the objections to the appeal and only after great request and persuasion the next date has been fixed as 03.11.2014.
25. That is is also stated that since the aforesaid appeal dated 29.10.2014 filed by the respondent under section 37(2)(b) of Arbitration and Conciliation Act-1996 before the District Judge Meerut has yet not been admitted and as such no any number etc. has been given to the said appeal and due to said reason no any certified copy of the order sheet could be obtained by the petitioner.
26. That as a matter of fact now the applicant lost all his hope to get justice in the Arbitration Appeal No.Nil of 2014 (Atul Gupta Vs. Amit Agarwal) pending before Sri Amar Singh Chauhan District Judge Meerut in as much as the said Court is even not ready to consider the material brought on record and the argument advance before him on behalf of the applicant which is apparent from the aforesaid facts."
3. From the bare perusal thereof clearly shows that assertions are absolutely vague, unsubstantiated and lacks trustworthiness.
4. Learned counsel for opposite party opposed the application submitting that there is no ground for transfer the case.
5. The power of transfer of a case from one Court to another under Section 24 C.P.C. is very wide. However, while exercising such power, the Court itself must look into the ground taken for justifying transfer and should consider the matter within permissible limitations so as not to exercise power on mere asking by applicant.
6. The plaintiff, as obiter litis or dominus litis, has a right to chose any forum, the law allows him. It is a substantive right but of course subject to control by statute like Sections 22 to 23 of C.P.C.
7. The mere factum of expenses or difficulties should not justify transfer of a case from one Court to another, unless Court finds that expenses and difficulties in the Court, where it is pending, is so great as to lead injustice to applicant, or, the suit has been filed in a particular Court for the purpose of working injustice. (P. Sadayandi Nadar and Ors. vs. Venugopala Chetty and Ors., AIR 1960 Kerela 91; Satyasri Fertilisers vs. E.I.D. Parry (India) Ltd., AIR 2003 AP 312; and, The Hindustan Assurance and Mutual Benefit Society Ltd. vs. Rail Mulraj and Ors., 1914 (27) MLJ 645).
8. It is always necessary to the Court to find out from the allegations made in transfer application, whether any reasonable ground is made out for transfer of the case. (Smt. Sudha Sharma vs. Ram Naresh Jaiswal, AIR 1990 MP 320)
9. Transfer of cases from one Court to another is a serious matter particularly when transfer is sought by making allegations against Presiding Officer. It sometimes indirectly cause doubt on the integrity and competence of Presiding Officer of the Court from whom the matter is transferred. In cases where ground for transfer is likelihood of bias of Presiding Officer, it is onerous duty of Court to see, whether such ground has been substantiated with reasonable certainty or not. It should not be done without a proper and sufficient cause. In Tula Ram Vs. Harjiwan Das (1882) ILR 5 All 60 it was held that the Court has to consider whether applicant has made out a case to justify it, closing doors of the Court in which suit is brought to plaintiff, and leaving him to seek his remedy in another jurisdiction.
10. In Meneka Sanjay Gandhi Vs. Rani Jekhmalani, (1979) Cri.L.J. 458 (SC) the Court said:
Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances. Something more substantial, more compelling, more imperiling, from the point of view of public justice and its attendant environment, is necessitous if the Court is to exercise its power of transfer. This is the cardinal principle although the circumstances may be myriad and vary from case to case. (emphasis added)
11. Again in the context of power of Supreme Court with regard to transfer of cases under Section 25 C.P.C. in Subramaniam Swamy Vs. Ramakrishna Hegde, 1990(1) SCC 4, the Court said:
"The question of expediency would depend on the facts and circumstances of each case but the paramount consideration for the exercise of power must be to meet the ends of justice. It is true that if more than one court has jurisdiction under the Code to try the suit, the plaintiff as dominus litis has a right to choose the Court and the defendant cannot demand that the suit be tried in any particular court convenient to him. The mere convenience of the parties or any one of them may not be enough for the exercise of power but it must also be shown that trial in the chosen forum will result in denial of justice. Cases are not unknown where a party seeking justice chooses a forum most inconvenient to the adversary with a view to depriving that party of a fair trial. The Parliament has therefore, invested this Court with the discretion to transfer the case from one Court to another if that is considered expedient to meet the ends of justice. Words of wide amplitude- for the ends of justice-have been advisedly used to leave the matter to the discretion of the apex court as it is not possible to conceive of all situations requiring or justifying the exercise of power. But the paramount consideration must be to see that justice according to law is done; if for achieving that objective the transfer of the case is imperative, there should be no hesitation to transfer the case even if it is likely to cause some inconvenience to the plaintiff. The petitioner's plea for the transfer of the case must be tested on this touchstone. (emphasis supplied)
12. The age of wife and distance between place of residence and place where matrimonial proceedings were filed, as well as absence of people who would escort her, are some of the grounds considered reasonable justification, for directing transfer of case, to a place more suitable to her. In Kulwinder Kaur @ Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and Ors., AIR 2008 SC 1333 the Court said that order of transfer must reflect application of mind and the circumstances which weighed the Court in taking action or transfer of case from one Court to another.
13. In Kulwinder Kaur @ Kulwinder Gurcharan Singh (supra), the Court said:
"14. Although the discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the Court feels that the plaintiff or the defendant is not likely to have a fair trial in the Court from which he seeks to transfer a case, it is not only the power, but the duty of the Court to make such order."
14. In the matrimonial matters the convenience of wife and in particular that she has no one in her family to escort her to undertake a long journey has been held to be good ground for transfer of case as is also evident from Apex Court's decision in Anjali Ashok Sadhwani vs. Ashok Kishinchand Sadhwani, AIR 2009 SC 1374 and Fatema vs. Jafri Syed Husain @ Syed Parvez Jafferi, AIR 2009 SC 1773.
15. One of the common ground which generally is taken is of distrust in Presiding Officer of the Court. Here the Courts have to be very careful while passing the orders for transfer of case.
16. Where two persons filed suit against each other in different Courts on the same cause of action, it was held desirable that suits should be tried by one and the same Court. (G.M. Rajulu Vs. Rao Bahadur M. Govindan Nair, (1938) 2 MLJ 249; Mt. Zabida Khatoon vs. Mohammad Hayat Khan and Ors., AIR 1933 Lahore 635; and Manjari Sen vs. Nirupam Sen, AIR 1975 Delhi 42).
17. Similarly, if two suits in different Courts are filed raising common questions of fact and law, and the decisions are independent, it is desirable that they should be tried by same judge so as to avoid multiplicity of litigation and conflict in decision. (Purna Chandra Mahanty and Ors. vs. Samanta Radhaprasana Das, AIR 1953 Orissa 46).
18. If the fact of suits sought to be tried together are intertwined with cause of action in each suit, transfer of suit may not be refused provided the parties and subject matter of suits are one and the same. (Rosamma Joseph vs. P.C. Sebastian, AIR 1996 Kerala 113)
19. An order of transfer can also be made to prevent abuse of process of Court as said in State Bank of India vs. Sakow Industries Faridabad (Pvt.) Ltd., New Delhi, AIR 1976 P & H 321.
20. In Amardeep and others Vs. District Judge, Lalitpur and others, 2007(3) AWC 3119 the applicant put forward his claim on the basis of a Will before Civil Judge (Senior Division). The respondent filed a suit before Civil Judge (Junior Division) for cancellation of Will. It was held that claims of both parties were based on execution and non-execution of alleged Will, therefore, it would be in the interest of justice that both cases must be decided in the same Court. The expression "same Court" does not mean same Judge, rather it means the same Civil Court and as such the order of transferring proceeding from the Court of Civil Judge (Junior Division) to the Court of Civil Judge (Senior Division) was held proper.
21. The mere observations of Presiding Officer of the Court while hearing a case does not mean that he has made up his mind in a particular manner so as to justify an allegation of bias against such Presiding Officer and this would not justify transfer of case from one Court to another. A Judge is not expected to remain silent during course of hearing and not to express any opinion. A sphinx like attitude is not expected from a Presiding Officer. There has to be an effective discussion and effective attempt to conciliate or to clarify the misunderstanding or to get the issues clear, so that the issues can be settled or a just and proper decision can be arrived at. If in that process the Presiding Officer would make a statement it should not be misunderstood as an expression of decision. (Smt. Sangeetha S. Chugh vs. Ram Narayan V. and others, AIR 1995 Karnataka 112 and Official Assignee, Madras vs. Inspector-General of Registration, Bangalore and Anr., AIR 1981 Madras 54 or 24)
22. In one matter certain observations were made by a Judge in an earlier case. When a subsequent matter came up before him this was sought to be a ground for transfer but declined by the Court in G. Lakshmi Ammal vs. Elumalai Chettiar and Ors, AIR 1981 Madras 24.
23. The allegations of bias of Presiding Officer, if made the basis for transfer of case, before exercising power under Section 24 C.P.C., the Court must be satisfied that the apprehension of bias or prejudice is bona fide and reasonable. The expression of apprehension, must be proved proved/ substantiated by circumstances and material placed by such applicant before the Court. It cannot be taken as granted that mere allegation would be sufficient to justify transfer. In Smt. Sudha Sharma (supra) the Court observed that it is the duty of learned counsel to draft the application and made allegations with utmost care and caution. Hon'ble B.M. Lal, J. (as His Lordship then was), said:
"9. ......a foremost duty casts upon the counsel concerned while drafting and making allegations in the transfer petition against the Judge concerned with utmost care and caution, particularly in making wild allegations against the Presiding Judge. But, it appears that now-a-days it has become common feature to make allegations against the Court Presiding Judge. The counsel should realise that they are also officers of the Court. Introducing fanciful and imaginary allegations as grounds for transfer and harbouring apprehension such grounds that fair and impartial justice would not be done should always be deprecated.
10. Nonetheless, it is also important for all those who are engaged in the task of administering justice to remember that it is incumbent on them to create and maintain such confidence and atmosphere by giving every litigant an assurance by their judicial conduct that fair and impartial justice will be imparted. It is necessary to create such a confidence in the mind of the litigants so that their faith may not be shaken in Courts of law."
24. Mere suspicion by the party that he will not get justice would not justify transfer. There must be a reasonable apprehension to that effect. A judicial order made by a Judge legitimately cannot be made foundation for a transfer of case. Mere presumption of possible apprehension should not and ought not be the basis of transfer of any case from one case to another. It is only in very special circumstances, when such grounds are taken, the Court must find reasons exist to transfer a case, not otherwise. (Rajkot Cancer Society vs. Municipal Corporation, Rajkot, AIR 1988 Gujarat 63; Pasupala Fakruddin and Anr. vs. Jamia Masque and Anr., AIR 2003 AP 448; and, Nandini Chatterjee vs. Arup Hari Chatterjee, AIR 2001 Culcutta 26)
25. Where a transfer is sought making allegations regarding integrity or influence etc. in respect of the Presiding Officer of the Court, this Court has to be very careful before passing any order of transfer.
26. In the matters where reckless false allegations are attempted to be made to seek some favourable order, either in a transfer application, or otherwise, the approach of Court must be strict and cautious to find out whether the allegations are bona fide, and, if treated to be true on their face, in the entirety of circumstances, can be believed to be correct, by any person of ordinary prudence in those circumstances. If the allegations are apparently false, strict approach is the call of the day so as to maintain not only discipline in the courts of law but also to protect judicial officers and maintain their self esteem, confidence and above all the majesty of institution of justice.
27. The justice delivery system knows no caste, religion, creed, colour etc. It is a system following principle of black and white, i.e., truth and false. Whatever is unfair, that is identified and given its due treatment and whatever is good is retained. Whoever suffers injustice is attempted to be given justice and that is called dispensation of justice. The prevailing system of dispensation of justice in Country, presently, has different tiers. At the ground level, the Courts are commonly known as "Subordinate Judiciary" and they form basis of administration of justice. Sometimes it is said that subordinate judiciary forms very backbone of administration of justice. Though there are various other kinds of adjudicatory forums, like, Nyaya Panchayats, Village Courts and then various kinds of Tribunals etc. but firstly they are not considered to be the regular Courts for adjudication of disputes, and, secondly the kind and degree of faith, people have, in regular established Courts, is yet to be developed in other forums. In common parlance, the regular Courts, known for appropriate adjudication of disputes basically constitute subordinate judiciary, namely, the District Court; the High Courts and the Apex Court.
28. The hierarchy gives appellate and supervisory powers in various ways. The administrative control of subordinate judiciary has been conferred upon High Court, which is the highest Court at provincial level and is under constitutional obligation to see effective functioning of subordinate Courts by virtue of power conferred by Article 235 read with 227 of the Constitution. No such similar power like Article 235, in respect to High Court is exercisable by Apex Court, though it is the highest Court of land. Its judgments are binding on all. Every order and judgment of any Court or Tribunal etc., in the Country, is subject to judicial review by Apex Court. This is the power on judicial side.
29. In Ajay Kumar Pandey, Advocate, In Re:, (1998) 7 SCC 248, the Court said that superior Courts, i.e. High Court as also the Apex Court is bound to protect the Judges of subordinate Courts from being subjected to scurrilous and indecent attacks, which scandalise or have the tendency to scandalise, or lower or have the tendency to lower the authority of any court as also all such actions which interfere or tend to interfere with the due course of any judicial proceedings or obstruct or tend to obstruct the administration of justice in any other manner. No affront to the majesty of law can be permitted. The fountain of justice cannot be allowed to be polluted by disgruntled litigants. The protection is necessary for the courts to enable them to discharge their judicial functions without fear.
30. If there is a deliberate attempt to scandalize a judicial Officer of subordinate Court, it is bound to shake confidence of the litigating public in the system and has to be tackled strictly. The damage is caused not only to the reputation of the concerned Judge, but, also to the fair name of judiciary. Veiled threats, abrasive behaviour, use of disrespectful language, and, at times, blatant condemnatory attacks, like the present one, are often designedly employed with a view to tame a Judge into submission to secure a desired order. The foundation of our system is based on the independence and impartiality of the men having responsibility to impart justice i.e. Judicial Officers. If their confidence, impartiality and reputation is shaken, it is bound to affect the very independence of judiciary. Any person, if allowed to make disparaging and derogatory remarks against a Judicial Officer, with impunity, is bound to result in breaking down the majesty of justice.
31. I cannot ignore the fact that much cherished judicial independence needs protection not only from over zealous executive or power hungry legislature but also from those who constitute, and, are integral part of the system. Here is a case where an Advocate has drafted a petition since the litigants, namely petitioners, hereat does not appear to understand the legal complexity much. The Advocate forgetting the higher status conferred upon him, making him an Officer of the Court, has chosen to malign Judicial Officer of the Subordinate Court, based on caste consideration as also the nature of his appointment over which he himself has no control. In any case, that, by itself, has no connection with his performance and function as Presiding Officer of the Court.
32. An Advocate's duty is as important as that of a Judge. He has a large responsibility towards society. He is expected to act with utmost sincerity and respect. In all professional functions, an Advocate should be diligent and his conduct should also be diligent. He should conform to the requirements of law. He plays a vital role in preservation of society and justice system. He is under an obligation to uphold the rule of law. He must ensure that the public justice system is enabled to function at its full potential. He, who practices law, is not merely a lawyer, but acts as moral agent. This character, he cannot shake off, by any other character on any professional character. He derives from the belief that he shares sentiment of all mankind. This influence of his morality is one of his possession, which, like all his possession, he is bound to use for moral ends. Members of the Bar, like Judges, are the officers of the Court. Advocacy is a respectable noble profession on the principles. An Advocate owes duty not only to his client, but to the Court, to the society and, not the least, to his profession.
33. I do not intend to lay down any code of conduct for the class of the peoples known as "Advocates", but certainly I have no hesitation in observing that no Advocate has nay business to condemn a Judge merely on the basis of his caste, creed or religion or for any other similar trait or attribute. If there is something lacking on the part of a Judicial Officer touching his integrity, Advocates, being Officers of the Court, may not remain a silent spectator, but should come forward, raising their voice in appropriate manner before the proper authority, but there cannot be a licence to any member of Bar to raise his finger over the competency and integrity etc. of a Judicial Officer casually or negligently or on other irrelevant grounds. Here the competence and capacity of the concerned Judicial Officer has been attempted to be maligned commenting upon his integrity and honesty. It deserves to be condemned in the strongest words. No one can justify it in any manner. Thinking of intrusion of such thought itself sounds alert. It is a siren of something which is not only very serious, but imminent. A concept or an idea which should not have cropped up in anybody's mind, connected with the system of justice, if has cropped up, deserves to be nipped at earliest, else, it may spreads its tentacles to cover others and that would be a dooms day for the very institution.
34. This Court also made similar observations in Smt. Munni Devi and others Vs. State of U.P. and others, 2013(2) AWC 1546 and in para 10, said:
"10. Be that as it may, so far as the present case is concerned, suffice is to mention that the Constitution makers have imposed constitutional obligation upon the High Court to exercise control over subordinate judiciary. This control is both ways. No aberration shall be allowed to enter the Subordinate Judiciary so that its purity is maintained. Simultaneously Subordinate Judiciary can not be allowed to be attacked or threatened to work under outside pressure of anyone, whether individual or a group, so as to form a threat to objective and independent functioning of Subordinate Judiciary."
35. Sometimes transfer of suit has also been justified on the ground of convenience to the parties or witnesses etc. but in such cases the paramount factor which should be considered is the convenience of both parties. An exception, however, to some extent, has been made in matrimonial cases where convenience of wife has been given a dominating factor than husband, particularly when she has none to escort her or of quite young age or where she has financial constrained etc.
36. In Satyasri Fertilisers vs. E.I.D. Parry (India) Ltd., AIR 2003 AP 312 the transfer of case was declined which was sought only on the ground that the applicant is a diabetic patient.
37. The observations made above are only illustrative to show that Court, though has wide power of transfer under Section 24 C.P.C. but it must be exercised for valid reasons and not in whimsical and arbitrary manner.
38. Now, this has to be seen, whether any valid reason exist in the case justifying transfer.
39. In the light of the above exposition of law, the pleadings in the case in hand have been examined. The grounds taken by applicant is vague and wholly unsubstantiated. The mere allegation is not sufficient to justify transfer unless it is also substantiated by relevant material, which is not the case in hand. No ground, therefore, justifying transfer is made out under Section 24 C.P.C.
40. The transfer application, therefore, fails and is dismissed .
Order Date :- 12.11.2014 KA