HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No.6 Civil Misc. Case No. 5 of 2010.
Durga Prasad......................vs............................Shiv Naresh & others.
Hon'ble Shabihul Hasnain, J Heard Sri Mohd. Arif Khan, learned senior advocate, assisted by Sri Mohd. Aslam Khan, learned counsel for the petitioner and Sri Sushil Kumar Singh, learned counsel for the opposite parties, as a Caveater.
The petitioner has prayed that Regular Civil Appeal no. 10 of 2005 Shiv Naresh and others versus Durga Prasad, pending in the Court of Additional District Judge,Court no. 5, Barabanki, may be transferred to some other Court in the judgeship of District Barabanki.
Learned District Judge has rejected the application for transfer of Regular Civil Appeal No. 10 of 2005, from the Court of Addl. District Judge, Court No. 5. The said application was moved, by the petitioner on 16.11.2010, stating therein that he had heard one Matan Dubey talking to Ram Prakash, the following conversation :-
"Suresh Kumar Pandey Chaprasi ne mujhe bheja hai aur kaha hai ki maen aap se yeh batla doon ki Judge Sahab tumhare mukadman appeal mein tumhare muvafik faisala kar dene par rajee ho gaye hain chunache tum fauran agrim peshi 16.11.2010 se pahle poora intjaam kar ke aa jao aur suresh kumar pandey ke dwara judge sahab se mulakat kar lo. Agar 16.11.2010 se pahle tum intezaam na kar pao to bhi 16.11.2010 ko zaroor bil zaroor aao aur judge sahab se chaprasi ke marfat mulakat kar lo aur sab kuch samajh boojh lo."
On the basis of this conversation, apprehension arose in the mind of the petitioner that he will not get justice in Court No.5 of the Addl. District Judge, Barabanki, hence he moved the application for transfer of case before the District Judge u/s 24 of the C.P.C. The District Judge has rejected the application on the ground that while hearing the application, he inquired in the open Court, as to exactly what was the discussion, the applicant could not repeat the same. The Court under Order 10 rule -1 C.P.C. has the power to call the plaintiff. The order of the District Judge is quoted below :-
"This is a transfer application against learned Additional District Judge Court No. 5, Barabanki. Since the discussions made between one Sri Madan and Sri Ram Prakash was quoted therefore, during the course of hearing, I enquired in the open Court as to exactly what was the discussion. The applicant could not repeat the same. Thus, the allegations appears to be baseless. The officer carries a good reputation and perhaps this is the reason why the applicant does not want to get his case decided by him. There is no substance in the transfer application, hence it is rejected."
Sd-/District Judge.
The District Judge, in his wisdom, decided that the allegations were baseless and thus, he recorded the finding. He further recorded that the Addl. District Judge, Court No. 5, Barabanki carried a good reputation and also that since the officer was good, perhaps that was the reason for the applicant, to get the matter transferred from his Court. Finding no substance, the District Judge, finally rejected the application.
For understanding of the matter, facts of the case are being narrated in nutshell. The petitioner filed a suit for permanent injunction against one Bachau, now deceased and opposite party no. 5 and 6 restraining them from interfering with the peaceful possession over the land in dispute. Opposite parties no. 3 to 5, filed their written statement denying the plaint allegations. The trial court, however, decreed the suit vide judgment and decree dated 31.1.2005. Being aggrieved, opposite parties filed appeal before the District Judge, Barabanki, which was transferred to the Court of Addl. District Judge, Court no. 5, Barabanki, which is pending for decision.
As mentioned earlier, It is alleged that during pendency of this appeal, the petitioner heard a conversation, which has taken place between one Matan Dubey (brother in law of Ram Milan son of Ram Prakash- opposite party no. 5),and Ram Prakash. Thereupon, he made application before the District Judge,Barabanki,which has been rejected.
Learned Senior Advocate, for the applicant, has forcefully argued that the order of the District Judge is patently illegal. This Court should direct him to transfer the matter to some other Court or to his own Court. He argues that since the petitioner has moved the application for transfer of case from Addl. District Judge Court No. 5, which has been rejected, the Addl. District Judge Court No. 5 has to be prejudiced, most likely and the petitioner is going to suffer because of prejudicial mind of the Addl. District Judge Court no. 5. He says that the District Judge has wrongly rejected the application of the petitioner, for the reason that once apprehension comes in the mind of the petitioner, the matter should be transferred in the interest of justice and fair play. He goes to the extent of saying that the matter should be transferred even if veracity of the complaint is not found to be true by the District Judge. He says that "Justice should not only be done but it should appear to have been done". On this point, he has placed the following case law :-
1- Ram Narain vs. Rakesh Tandon and others 2006 (63) ALR- 47 2- Smt. Geeta Srivastava vs. A.K. Saxena, Judge Family Court, Gorakhpur and others (2007 (66) ALR- 188) 3- K. Anbazhagan vs. Superintendent of Police,Chennai & Ors.
Decided on 17.2.2004 by the Division Bench of Hon. Supreme Court in Transfer Case (crl.) 77-78 of 2003.
The first case on the issue cited by the learned counsel for the petitioner is Ram Narain vs. Rakesh Tandon and others reported in 2006 (63) ALR- 47, Alld. High Court. The facts of the case are distinguishable to that of the present case. In the referred case, judgment of apex Court namely P.K. Ghosh, I.A.S. and another vs. J.G. Rajput reported in AIR 1996 SC 513, has been quoted in para- 16 of the judgment. The ratio has been laid down only on the basis of the legal maxim "justice should not only be done but it must also be seen to be done." His Lordship, on the basis of this judgment, had come to the conclusion that it would be proper for a judge hearing a matter to rescue himself from hearing, if he feels that hearing the matter is likely to raise apprehension in the mind of the litigant. Ratio of this judgment as well as the judgment of the apex Court quoted therein, is to the effect that a judge should excuse himself from hearing such matter. A suo moto action has been suggested but in the present case, the High Court is being asked to judge the order of the District Judge, who has rejected the transfer application from his one subordinate officer to another officer.
In the present case, the High Court is being asked to either affirm or reject the judgment of the District Judge, who has taken a stand about the integrity and honesty of his subordinate judge. The judgment cited by the learned Advocate obliquely touches the issue in question but does not cover it. In the present case, there is no question involved about suo moto action by the judge. The Addl. District Judge was not even aware about the complaint. He was never made a party and never asked for any explanation. Hence, this case law does not apply to the present case.
The other case referred to, by the learned senior counsel is Smt. Geeta Srivastava vs. A.K. Saxena, Judge Family Court, Gorakhpur and others reported in 2007(66)ALR-188 (Allhd. High Court) In this case, the facts of the case are distinctly different to the case at hand. In this case, there was a complaint against the Presiding Officer of the concerned Court, as contained in annexure no. 3 to the writ petition, which was made the entire basis for seeking transfer. This complaint had been addressed to the Hon'ble Chief Justice, spelling out extremely scandalous allegation against the Presiding Officer. The lady petitioner had not spared even the District Judge of the concerned District against whom, there was an accusation that he had prejudice against her because he wanted to marry his daughter with petitioner's husband earlier to the petitioner's marriage. The comments of the concerned District Judge were received in this context, in which the District Judge had admitted that the proposal was once made but subsequently, he did not find proposal as appropriate for his daughter's marriage. Some reference was also made to certain conversation and talks with the Presiding Officer, allegedly, with the petitioner- lady, in his Chamber. Thus the facts as disclosed in the complaint had been partially admitted by the Judge, Family Court, in his comments submitted before the Court. The allegation of mala-fide though was vehemently denied by the judge.
In such a situation, this Court while rejecting the allegation against the Presiding Officer and the District Judge, had transferred the matter, simply to ensure that there is no apprehension in the mind of the complainant- petitioner.
The distinguishing features in this case is that the allegations were of serious nature. The facts were verifiable and particularly when partially admitted by the District Judge. Moreover, lady-complainant had filed affidavit to the effect that he had firsthand conversation with the Presiding Officer. In such cases, where there is even an iota of doubt, the matter should be transferred, as was rightly done by the High Court, in the aforesaid case.
In the present case, facts and the ratio would not apply because the complainant when called upon by the District Judge to narrate under Order 10 rule-1 C.P.C. the allegation verbally before the Court, failed to do so. The District Judge had entertained the complaint against Addl. District Judge, but when the complainant himself failed the test of Order-10 rule- 1 C.P.C., the complaint was rejected summarily. This was a correct decision. Thus, the facts and ratio of the judgment aforementioned is distinguishable from the facts of the present case.
The third case has been referred and quoted by Sri Mohd. Arif Khan in para- 13 of the petition. It is of K. Anbazhagan vs. Superintendent of Police, Chennai and others, decided by Supreme Court on 17.2.2004. This case is not even remotely connected with the present matter. The aforesaid judgment refers to the power of Supreme Court in the matter of transfer as envisaged in Section 25 and not Section 24 of the C.P.C. The circumstances of the case were entirely different and the case law does not support the contention of the applicant at all. In the aforementioned case, the petitioners had moved an application before the Supreme Court that the Cauvery water dispute, which was going on before the Tribunal in Karnataka, should be transferred out side of the State. It was said that since strong emotions are running high in the State of Karnataka, security of the petitioner will be in jeopardy. Hon'ble Supreme Court, however, laid down, thus :-
"Before parting with the record, we must unequivocally say that in a democratic country like ours, governed by the Rule of Law, the efficient and independent judiciary manned the subordinate courts, where justice is administered impartially, fearless of public glamour, regardless of public responses and indifferent to private, political or partisan influences. We have no least doubt in our mind that the learned judge who has been assigned the job will do well in discharging his divine duty in accordance with law, keeping in mind the above principle in view."
I have given my anxious consideration to these cases from every possible angle and perspective and find that all three judgments cited by the learned counsel for the applicant, are not applicable in the facts and circumstances of the present case.
Following questions arise out of such situation :-
(a) Whether the maxim "justice should not only be done but should appear to have been done" be interpreted and enlarged to such an extent that every complaint against the Presiding Officer of the Court has to be necessarily entertained and acted upon against the Presiding Officer of the Court ?
(b) Whether there can be any universal formula of entertaining transfer application on allegation of mala-fide, corruption or any other charge, or each and every case will have to be tested on its own merit, on the basis of available evidence on record ?
(C) The effect of entertaining/ rejecting the transfer application against the Presiding Officer, on the mind and psyche of the said Presiding Officer, while deciding the case.
These are some of the questions I will try to analyze and answer them accordingly.
Corruption has spread in the society as an epidemic. Nobody can deny its existence. It is rampant and prevalent everywhere. The judiciary, which has withstood onslaught of this weather of corruption and remained intact for long time, has also started showing sign of cracks in the outer wall of the edifice. Some sheen has been taken away from its otherwise bright coat of paint. The integrity and honesty of a "Judicial Officer" used to be impeccable but one cannot swear on it any more. Having said this, we have to ponder why the cases are still flooding the Courts. Why the cases after cases are being filed every day for redressal of the grievance before the judicial forum. The answer is obvious. The people still have faith in judicial system and it needs to be maintained and safeguarded.
The important question is how and why the judiciary has remained on slightly better footing vis-a-vis other branches of administration ? The reason is the total 'Faith' reposed in the judicial officer by the system. Any authority/ Officer who is entrusted with the job of deciding the cases between different parties, naturally has to face a lot of pressure from the warring sides. It is also natural that each side contesting the matter wants to win. There cannot be two winners in any contested matter. One side may be a winner and the other side looser. These sides can change and some day in another matter, looser might be a winner and vice versa. But, every time, one looses a case he has a heart burn against the Judge. This is, but natural. Parties coming to the Courts are not saints. Litigation is not a product of peace, harmony and saintly virtues. Litigation entails bitterness, enmity and hard feelings. Parties who are at logger heads against each other, for years together, are very likely to harbour a grudge against the Presiding Officer. If by a decision of that Officer, he is going to loose money, property, land or prestige, likelihood of the complaint, being made against the Officer can be easily understood. For getting a case transferred, out of particular Court, parties can level frivolous allegations at the drop of a hat. A transfer application is the easiest of tools, simultaneously it is a double edged weapon also. It is a path to be treaded with caution and foresight. Requirement of justice and fair play are necessary pillars of judicial system but Presiding Officer are architect and builders of those pillars. Safety of these architect is also equally necessary to build new pillars and to protect already erected from erosion and dilapidation. It is an act of fine balance to be maintained by the superior officer like a District Judge, who has to take the decision on the transfer application. The maxim "Justice should not only be done but it should appear to have been done" though is true, to a great extent, contains inherent nemesis, in its fold. If the cases are transferred, only to glorify the maxim. The confidence of the officers shakes. His commitment and endeavor, dampens and his resolve to work honestly gets diluted. Once the application of transfer is allowed, it creates question marks on the integrity of the officers in the eyes of the litigant and lawyers. It casts a shadow on other matters as well. It becomes a vicious circle. This has to be checked.
It is said that everything in this world changes except the law of change. I find that maxim and the usages, which have been used by the people over decades and centuries are also capable of further interpretation with the changing times. The maxim "justice should not only be done but it should appear to have been done" is also one of those legal maxim, which need to be seen with a fresh mind and new angles. The word 'justice' in this maxim denotes a concept but does not indicate its recipient. It has always come to mean that maxim has to be used in favour of an applicant, who is approaching this Court and flaunting this fancy maxim in his argument. I stop to ponder whether justice has to be seen only from the angle of the applicant/petitioner/ plaintiff or justice would mean a broader connotation engulfing each and every body connected in the process. Here the argument has been that by transferring the case from particular judicial officer to another judicial officer, the justice would appear to have been done. I wonder if we have ever thought of a silent victim in the process. When a matter is transferred on the complaint of corruption and is entertained by a superior authority, there is a silent victim in the officer from whom the case has been taken away. Acceptance of the transfer application by the superior authority indicts subordinate judicial officer, even without giving him any opportunity to explain his conduct. This is one area where we fore-go principles of natural justice very conveniently. "Does it amount to justice ?" The question will always crop up. " justice to whom ?" The old age maxim often tend to have a swaying effect on our mind. At times, we let ourselves to be persuaded in favour of the person, who is quoting the maxim. In the present case, if the matter is transferred in the name of this maxim, may be we can congratulate ourselves that we have served the cause of justice. But, I dare say that this type of justice, may also have a false note. This apparent justice in order to please the petitioner, will cause a larger damage to the system of justice. The demoralizing effect on the officer concerned and his condemnation without being heard, will have larger consequence causing greater injustice, in the process. Perhaps, the correct maxim to be used in such circumstances should be "LET TRUTH PREVAIL" instead of justice should appear to have been done, which will be more correct and appropriate under the circumstances of the case.
This case has to be examined from one more point of view. On examination, I have found that in the prayer clause, it has been requested that Regular Civil Appeal No. 10 of 2005 Shiv Naresh and others vs. Durga Prasad, pending in the Court of Addl. District Judge Court no. 5, in the judgeship of Barabanki, may be transferred to some other Court. It is to be noted that this prayer has already been made before the District Judge, vide application moved by the petitioner- respondent, on 16.11. 2010. It was moved under Section 24 of the Civil Procedure Code and the same was rejected on 25.11.2010.
It is strange and interesting to note that once application under Section 24 of the C.P.C. has been rejected by the District Court, another parallel application has been moved before High Court without even challenging the order of the District Judge. Provisions of Section 24 of the C.P.C. is being quoted below for ready reference:-
"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 desired 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 sub ordinate to it and competent to try or dispose of the same; or
(iii)retransfer 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 retry it or proceed from the point at which it was transferred or withdrawn.
(3)For the purposes of this section,-
(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;
(b) "proceeding' includes a proceeding for the execution of a decree or order.) (4)The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes.
(5)A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it."
The power of the District Judge and that of the High Court, under Section 24 of the C.P.C. appears to be mutually exclusive. The powers have been given to the District Judge as well as to the High Court but the conjunction between the two is marked by "Or". It has been made clear that the application under Section 24 of the C.P.C. can either be made before the District Judge or the High Court. Neither simultaneously, nor one after other. There are two remedies, yet both cannot be availed of together. The remedy can be availed either by approaching the District Judge or directly to the High Court. A parallel use of these remedies, has not been envisaged. The reason appears to be simple and manifest. If the complainant approaches the High Court, first, then there is no remedy left in his approaching the District Judge. The District Judge will not be in any position to pass any order after the interference of the High Court. Simultaneously, if the complainant approaches the District Judge first, his order cannot be challenged before the High Court as no appeal has been provided against such an order. Moreover, the order of the District Judge, in transfer matters, does not decide any 'lis'. Hence, it cannot be appealed to. In the present case, the petitioner has approached the District Judge and after failing in his attempt, has approached the High Court, even without challenging the order of the District Judge.
It is very clear from the perusal of the provisions that once matter has been decided by the District Judge, no appeal shall lie against such an order. This case could not have been filed in the High Court after the decision of the District Judge. On careful examination it appears that the Registry ought not to have posted this matter before this Court as a civil miscellaneous case. This is neither a writ petition nor the civil appeal, arising out of any decision or decree in a suit.
Appeals have been provided under Chapter VII of the Civil Procedure of Code. It is very clear that part VII is not attracted in the present case at all.
Section 96 provides appeal from the original decree. Subsequent provision also provides appeals from the decree only. Section 2 of the C.P.C. Defines 'decree'. The order of the District Judge passed in this matter does not come in the definition of a decree. It does not decide any 'lis'. As such this order could not have come before this Court as a matter of appeal. Moreover, said order has not been challenged at all. No certiorari, mandamus or any other writ has been prayed for. The applicant has not arrayed either the District Judge or the Civil Judge as a party in this transfer application.
For the reasons discussed above, the Court comes to the definite conclusion that the present application, itself, is not maintainable. It has come up before the Court under some long standing practice of the Court but not under any Law. On this ground also the petition/ application is rejected. However, without any costs.
Sadiq/-
18.1.2011