Sri Digvijay Nath Dubey, Advocate has filed power on behalf of opposite party no.3. Same be taken on record.
Learned counsel for the petitioner and learned counsel for opposite party no.1 and 2 are present. Learned counsel for the opposite parties submit that they do not wish to file any counter affidavit.
Heard learned counsel for the parties and perused the record.
With the consent of parties, the matter is being disposed of at admission stage.
By means of present writ petition, the petitioner has prayed for a writ in the nature of certiorari, quashing the order dated 12.10.2012, passed by learned District judge, Lucknow, contained as Annexure No.4 (Misc. Case No.563 (C) of 2012) by which the transfer application of the petitioner under Section 24 of the Code of Civil Procedure for transfer of S.C.C. Suit No.21 of 2010 from the Court of 14th Additional District Judge, Lucknow has been rejected by learned District Judge vide order dated 12.10.2012, contained as Annexure No.4, to the writ petition.
The petitioner has sought transfer of the case on the ground that he is the tenant in House No.73, Mall Avenue, Police Station Hazratganj, Lucknow which has been purchased by opposite party no.3, claiming himself to be the landlord. The learned Presiding Officer of the Court "suddenly and hastily" proceeded on to decide the suit and did not adopt the proper procedure for disposal of the suit. That the learned counsel for the petitioner (tenant) was unable to appear as his eyes were infected and an application for adjournment was moved and the case was adjourned for few days. Hence, he moved application for transfer under Section 24 of the Code of Civil Procedure before the learned District Judge, Lucknow, who has rejected the same vide order dated 12.10.2011, contained as Annexure No.4 to the writ petition.
Nothing could be shown or even prima facie established, what to say of cogent grounds to establish that the learned Additional District Judge is hastily proceeding with the case and is not following the procedure laid down by any law for the time being in force. On the other hand, learned counsel for the opposite parties submitted that not only proper procedure is being followed by the learned Trial Court, but the learned Presiding Officer is cautiously proceeding with the case in accordance with the procedure.
Transfer of case cannot be treated as a matter of course. A case can not be transferred from a Court of law unless concrete and cogent reasons are established by the party, seeking transfer. In para no.5 of the writ petition, the petitioner himself has admitted that the case was adjourned by the learned Presiding Officer on few dates. In the later part of the para, it is mentioned that "the petitioner has ultimately come to know that the opposite party no.3 has personally impressed the present presiding officer of the Court of 14th Additional District Judge, Lucknow, and himself stated that he will eject the petitioner within few months." The language of this sentence is, in itself contumacious. In subsequent paras of the writ petition, it is evident that the petitioner being tenant is getting the case adjourned on one pretext or the other and lastly he has resorted to file writ petition. It has also been mentioned in para 1 of the writ petition that the petitioner has prayed for time to file rejoinder affidavit and no time was granted. Nothing has been mentioned as to what sort of rejoinder the petitioner has admitted to file and it comes under which provision of the Provincial Small Causes Court Act or the Code of Civil Procedure. No unusual ground could be placed through this writ petition except the growing tendency of the tenant to get the matter delayed on one pretext or the other. The disgusting part of the writ petition is that the petitioner has unnecessarily dragged the learned Presiding Officer into controversy, in such a fashion that the question mark may be put upon his integrity and, as such, the writ petition deserves to be thrown summarily.
In Maneka Sanjay Gandhi v. Rani Jethmalani, [(1979) 4 SCC 167], the Hon'ble Supreme Court has held as under:-
"Assurance of a fair trial is the first imperative of the dispensation of justice and the central critarion 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 imperilling, 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."
In Kulwinder Kaur v. Kandi Friends Education Trust and Ors. reported in (2008) 3 SCC 659, the Hon'ble Apex Court has held:-
"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 the plaintiff or the 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 proceedings 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."
This court is in pains to mention that the learned Trial Court is consciously dealing with the proceeding of the case and no grounds for transfer whatsoever are made out. Moreover, the writ petition is an equitable remedy and equity cannot over power the law.
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.
The suit has been filed in the year 2010 and it is obvious that the interest of the tenant is that he may prolong and continue his possession, may it be by questioning the integrity of the subordinate court. This tendency deserves to be curbed.
It is also argued by learned counsel for the petitioner that he has annexed the list of thirteen cases as contained in Annexure No.3, to show that thirteen cases under Small Causes Courts Act are also pending before the learned Presiding Officer as it is not proceeding expeditiously with those cases. If this plea is taken to be a ground for transfer of case as causing aspersion against the integrity of the Presiding Judge, then all the Judges of all the High Courts and the Hon'ble Apex Court shall have to face similar allegations. This is not only a bogus ground but this ground exhibits a polluted brain to raise fingers against the Judges manning the justice delivery system right from the lowest strata till the highest strata. There has not been any law or can there be any feasible interpretation which may compel a Judge to decide case in a chronological manner. Each case has to be considered on the basis of its own merits and circumstances.
No Court or litigant can imagine as to when the defendant / defendants will be served and file written statement and each case has to be dealt with in his own way considering the peculiar circumstances of particular case. There must be at least some prima facie satisfaction as to the grounds put by the petitioner in the transfer petition / writ petition. Mere observation that it would be "proper to transfer the suit" is a fallacy on point of law. It is also true that normally while making an order of transfer, the Court may not enter into the merits of the case as it may affect the final outcome of the proceedings or cause prejudice to one or the other side. At the same time, an order of transfer must reflect application of mind by the court and the circumstances, it weighed in taking the action. Powers under Section 24 of the Code of Civil Procedure cannot be exercised ipse dixit.
The petitioner has filed Civil Misc. Case No.84 of 2012 (under Section 24 of the Code of Civil Procedure), which has been dismissed as withdrawn today and he has filed the writ petition. The petition, thus demonstrates how a determined and dishonest litigant can interminably drag a litigation to frustrate the result of a judicial determination in favour of the other side. I am bound to hold that some cantankerous and unscrupulous litigants, on one ground or the other, do not permit the Courts to proceed further in the matter, therefore, in order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. The credibility of the entire judiciary is at stake unless effective remedial steps re taken without further loss of time.
In Ramarameshwari Devi and others v. Nirmala Devi and others, (2011) 8 SCC 249, the Hon'ble Apex Court has held:-
"We are clearly of the view that unless we ensure that wrong- doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court's otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases."
This court has to dispel the common impression that a party by obtaining an order based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit. It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our courts because they have hardly any apprehension of being prosecuted for perjury by the courts or even pay heavy costs. In Swaran Singh v. State of Punjab, (2000) 5 SCC 668 the Hon'ble Apex court was constrained to observe that perjury has become a way of life in our courts. It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoer.
The common man's general impression about litigation is "Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road".
In view of the observations as made above, it is abundantly clear that the petitioner has wasted precious time of the Court in filing this unrealistic petition. The Courts have to go a long way in controlling tendency of introducing false pleadings which can only be curbed by imposition of cost which would control unnecessary litigation. By adopting realistic and pragmatic approach the opposite party no.3 had to engage a lawyer. I have to broadly take into consideration the prevalent fee structure of the lawyers and misc. expenses which have to be incurred by an innocent litigant who has been dragged into unnecessary controversy. Though, the opposite party no.3 has not filed any counter affidavit in this case, yet, he has engaged a lawyer and he has filed counter affidavit in recently dismissed as withdrawn misc. case no.84 of 2012. I find a cost of Rs.10,000/- must be imposed upon the petitioner and directions be issued to learned Trial Court to proceed with the case on day to day basis so as to decide the matter expeditiously.
On consideration of the totality of the facts and circumstances, I do not find any infirmity in the well reasoned impugned order, contained as Annexure No.4, to the writ petition.
In result, the writ petition is dismissed with a cost of Rs.10,000/-, which shall be deposited by the petitioner before the learned Trial Court, which shall be a condition precedent to participate in the proceedings before the learned Trial Court. The learned Trial Court shall also proceed on with the case on day to day basis in such a way that the matter is decided as expeditiously as possible.
Order Date :- 7.11.2012 Nitesh