1. Heard learned counsel for the applicant.
2. The present transfer application has been filed by the defendant in Original Suit No. 689 of 2020 (Smt. Dimpal Kohali Vs. M/s Bold Leasing and Finance Pvt. Ltd.) pending before the court of Civil Judge (Sr. Division), Ghazibad. The transfer application has been filed on the ground that there is apprehension in the mind of the applicant that he may not get justice from the court of Civil Judge (Sr. Division), Ghazibad. The said apprehension is based upon the fact that in the aforesaid case, application under Order 7 Rule 11 CPC was filed by the applicant and the Civil Judge (Sr. Division), Ghazibad without hearing the application of the applicant under Order 7 Rule 11 CPC asked the defendant counsel not to evict the plaintiff from the property in question.
3. The further ground is that the application under Order 7 Rule 11 CPC was heard by the court of Civil Judge (Sr. Division), Ghazibad on 21.12.2020 and the case was fixed for hearing on application under Order 39 Rule 1 CPC on 22.12.2020. The counsel for the applicant when demanded the file of the case from the Reader of the court of Civil Judge (Sr. Division), Ghazibad to inspect the file, he denied the same stating that the file is with the Steno and 22.12.2020 is fixed. This conduct of Reader of the court created apprehension in the mind of applicant.
4. It is also alleged in the application that the opposite party is propagating in the compound of the court that he will get injunction in respect of whole property. The apprehension that the applicant shall not get justice cropped up in the mind of applicant on the basis of aforesaid pleadings.
5. Learned District Judge, Ghaziabad issued notices to the opposite party and has also sought report from the concerned court as there was allegation against the court on which transfer was sought. In the report, it was stated that application under Order 7 Rule 11 CPC was heard and order on the application under Order 7 Rule 11 CPC was uploaded on the website of the court.
6. After perusing the report of the concerned court and appreciating the facts on record, the District Judge came to the conclusion that no ground of transfer is made out.
7. The relevant extract of the order dated 18.1.2021 passed by the District Judge, Ghaziabad in Transfer Application No. 341 of 2020 is extracted herein below:-
".....पत्रावली का अवलोकन किया। पत्रावली के अवलोकन से विदित होता है कि प्रार्थी/प्रतिवादी द्वारा स्थानातंरण प्रार्थना पत्र न्यायालय सिविल जज (सी०डि०) के पीठासीन अधिकारी पर आक्षेप लगाते हुए प्रस्तुत किया गया है। प्रार्थी/प्रतिवादी ने अपने स्थानातंरण प्रार्थनापत्र में कथन किया गया है कि विपक्षी/वादी द्वारा खुलेआम यह कहा जा रहा कि उसने प्रश्नगत भवन का केवल भूतल व प्रथम तल किराये पर लिया था परन्तु वह प्रार्थी/प्रतिवादी की पूरे भवन पर स्टे प्राप्त कर लेगा और उसकी इस संबंध में संबंधित अधिकारी से बात हो चुकी है। इस सम्बन्ध में यह उल्लेखनीय है कि प्रार्थी/प्रतिवादी द्वारा केवल शोहरत के आधार पर उक्त अन्तरण प्रार्थनापत्र प्रस्तुत किया गया है परन्तु इस सम्बन्ध में कोई साक्ष्य प्रस्तुत नहीं किया गया है। संबंधित पीठासीन अधिकारी द्वारा भी अपनी आख्या में प्रार्थी/प्रतिवादी द्वारा लगाये गये आरोपों से इंकार किया है तथा यह भी कथन किया गया है कि प्रार्थना पत्र अंतर्गत आदेश 7 नियम 11 सहपठित धारा 151 सी०पी०सी० दिनांक 21.12.2020 को गुण-दोष के आधार पर निर्णित किया गया था तथा उसी दिन बेवसाईट पर अपलोड कर दिया गया था।
मामले की उपरोक्त परिस्थितियों को दृष्टिगत रखते हुए उक्त मूलवाद अन्तरित किये जाने का कोई पर्याप्त आधार प्रतीत नहीं होता है। तदनुसार अन्तरण प्रार्थनापत्र निरस्त किये जाने योग्य है।
आदेश अन्तरण प्रार्थनापत्र 3ग निरस्त किया जाता हैं। मूल अभिलेख अविलम्ब सम्बन्धित न्यायालय को अग्रिम कार्यवाही हेतु प्रतिप्रेषित किया जावे।
(नीरज निगम) सत्र न्यायाधीश, गाजियाबाद JO CODE: UP05282 दि 18.01.2021"
8. I have heard learned counsel for the applicant and perused the record.
9. Learned counsel for the applicant submitted that from the averments made in the transfer application, it is evident that the applicant shall not get justice from the court of Civil Judge (Sr. Division), Ghazibad which led the applicant to file the present transfer application under Section 24 CPC. He submits that the Apex Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi Friends Education Trust and others, 2008 AIR (SC) 1333 has held that if there is a reasonable apprehension in the mind of applicant that he would not get justice from the court that is a sufficient ground for transfer of a case from that court.
10. The paragraph-14 of the of Apex Court judgement relied upon by the counsel for the applicant in the case of Kulwinder Kaur @ Kulwinder Gurcharan Singh (supra), is extracted herein below:-
".....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."
11. Be that as it may, from the averments made in the application, it is evident that the applicant was heard on the application under Order 7 Rule 11 CPC on 21.12.2020 and after hearing the applicant, the court fixed 22.12.2020 for delivery of orders. The basis for apprehension in the mind of applicant was that the counsel for the applicant demanded the file from the Reader of the court who did not supply him on the pretext that the same is with the Steno.
12. The counsel for the applicant cannot demand as a matter of right to inspect the file and if he wanted to inspect the file, there was a procedure prescribed in the Rule 231 of The General Rules (Civil), 1957 for filing proper application for inspecting the same.
13. Further ground on which transfer of case was sought was that the opposite party is propagating in the court campus that he will get injunction from the court in respect of whole property, this ground also cannot be said to form bonafide and reasonable apprehension in the mind of the applicant that he would not get justice from the court inasmuch as the said propoganda is also hearsay and there is no material on record to corroborate the said apprehension.
14. In view of the aforesaid fact, this Court finds that the judgement of the Apex Court relied upon by counsel for the applicant is not applicable in the facts of the present case inasmuch as the pleadings in the transfer application does not make out ground which can be said to be sufficient for forming reasonable apprehension in the mind of the applicant that he will not get justice from the court.
15. In view of the aforesaid discussion, this Court does not find any error in the order of the District Judge rejecting the transfer application.
16. Accordingly, the transfer application is dismissed without any order as to costs.
Order Date :- 4.2.2021 Jaswant