Heard Sri Santosh Kumar Tripathi, learned counsel for applicants and Sri Syed Ehsan Abbas- the respondent in person and perused the record.
Sri Santosh Kumar Tripathi, learned counsel for applicants submits that Sri Syed Ehsan Abbas/respondent filed a suit for permanent injunction registered as Regular Suit No. 62/2014 (Syed Ehssan Abbas Vs. Tanzeemul Makatib and another) pending in the Court of Civil Judge (Sr. Div.), Mohanlalganj, Lucknow. In the said matter, applicants-defendants are not able to pursue their case effectively as plaintiff is a practicing advocate of Lucknow Judgeship. Taking advantage of the said fact, he is creating hindrance in the way of the applicants-defendants to pursue their matter.
Learned counsel for the applicants submits that the District and Sessions Judge, Lucknow, apparently on account of the fact that the matter pertains to an alleged lawyer wrote a demi-official letter dated 10.2.2014 to the Senior Superintendent of Police, Lucknow recommending action against the applicant. The aforesaid letter exhibits the misuse of the might of the District and Sessions Judge, Lucknow, which comes in the way of administration of justice inside the court campus. A copy of the aforesaid letter dated 10.2.2014 written by the District and Sessions Judge, Lucknow has been annexed as Annexure No.4 to this petition.
It is further submitted that the respondent has also moved certain frivolous applications before the President/Secretary, Central Bar Association; President/Secretary, Lucknow Bar Association and President/Secretary, Bar Council of U.P. seeking interference by the aforesaid against the applicants. The aforesaid applications written by the respondent reveal the likelihood of applicants' being manhandled by pressing their case in the judgeship of Lucknow are bonafide and have substance. The copies of the aforementioned frivolous applications dated 10.2.2014, sent to the President/Secretary, Central Bar Association, Lucknow, President/Secretary, Lucknow Bar Association, Lucknow and President/Secretary, Bar Council of U.P. seeking interference by the aforesaid against the applicants by the respondent are collectively annexed as annexure No.5 to the writ petition.
It is further submitted on behalf of the applicants that the respondent again exercising his might, created a ruckus inside the Court and filed another frivolous First Information Report on 11.2.2014. It is further submitted that the Civil Judge had fixed 22.2.2014 for compliance of its order/next date on which the applicants authorized representative reached the Civil Court premises on time. However, there was a huge crowed of lawyers standing at the gates of the District and Sessions Court, Lucknow, who were shouting slogans in support of respondent, abusing the applicants representative Shir Jeeshan Haider and forcibly prohibited his entry inside the court campus, shouting at the highest pitch, threatening the said representative of dire consequences, and also told that the applicant shall have to come to the court, where after, he shall be roughed up and taught a lesson by the lawyers, for not compromising with a lawyer of the court. The matter was duly reported to the Police Station Wazirganj by way of a letter dated 22.2.2014 of which no receiving was provided and therefore, the same was sent by speed post subsequently.
It is further submitted by the applicant that the behaviour of respondent and his fellow lawyers as well as the clandestine support provided to the said lawyer has led the applicants to a bonafide belief that he would not be able to get justice in the courts at Lucknow and his visits to the court may be detrimental to his personal safety and security. It is further submitted that it was after a vigorous follow-ups and persuasions if at all the applicants could manage to find a lawyer in Lucknow, who could represent him and the said lawyer may also not find it comfortable to continue the relationship, as the issue involved a local layer, known for his hooliganism and rowdyism.
In support of his contentions he has referred to law laid down by Hon'ble the Apex Court in the case of Kulwinder Kaur Vs. Kandi Friends Education Trust & others, 2008 (3) SCC 659. He has relied upon paras 21, 23, 24 and 25 of this judgment which are quoted as under:-
"21. Having considered rival contentions of the parties and having gone through the proceedings of the case, we are of the view that the impugned order deserves to be set aside. So far as the power of transfer is concerned, Section 24 of the Code empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any court subordinate to it to any other court for trial and disposal. The said provision confers comprehensive power on the court to transfer suits, appeals or other proceedings "at any stage" either on an application by any party or suo motu.
23. 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 proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceedings. 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.
24. In Maneka Sanjay Gandhi v. Rani Jethmalani this Court states: (SCC p.169, para 2) "2. 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 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."
25. Similarly in Subramaniam Swamy (Dr.) v. Ramakrishna Hegde dealing with power of this Court to transfer a case under Section 25 of the Code, A. M. Ahmadi, J. (as His Lordship then was) stated : (SCC p.9, para 8) "8. Under the old section the State Government was empowered to transfer a suit, appeal or other proceeding pending in the High Court of that State to any other High Court on receipt of a report from the Judge trying or hearing the suit that there existed reasonable grounds for such transfer provided that the State Government of the State in which the other High Court had its principal seat consented to the transfer. The present Section 25 confers the power of transfer on the Supreme Court and is of wider amplitude. Under the present provision the Supreme Court is empowered at any stage to transfer any suit, appeal or other proceeding from a High Court of other civil court in one State to a High Court or other civil court of another State if it is satisfied that such an order is expedient for the ends of justice. The cardinal principle for the exercise of power under this section is that the ends of justice demand the transfer of the suit, appeal or other proceedings. The question of expediency would depend on the facts and circumstances of each case but the paramount consideration of 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. 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."
Learned counsel for the petitioner/applicant has further relied upon the case of Maneka Sanjay Gandhi Vs. Rani jethmalani, 1979 Cri. LJ 458 and the case of Subramaniam Swamy Vs. Ramakrishna hegde, AIR 1990 SC 113, to contend that the said suit may be transferred from the Court of Civil Judge (Sr. Div.), Mohanlalganj, Lucknow to some other district and as an interim measure, the proceeding in the said suit may be stayed.
Sri Syed Ehsan Abbas/respondent opposes the relief as claimed on the ground that it is totally incorrect on the part of the appellants/defendants that they are being precluded/restrained in any manner by him to contest the matter in the suit, so they are not entitled for any relief in the instant matter. However, he could not substantiate his arguments. The letter written by the District Judge has not been denied. The same is available on record. The letters written to the various Bar Associations are also on record. He further says that there are 9 cases pending in the subordinate judiciary and if the respondent had any intention of beating up the applicant, he could do in another cases also. This argument has been put up in para 11 of the counter affidavit but the same has been rebutted in paragraph 15 of the rejoinder affidavit filed by the petitioner. It has been submitted by the petitioner-applicant that nine cases mentioned by the respondent are totally unconnected and they have nothing to do with the personal interest of the respondent. The contention of the respondent does not appear to be believable in the light of the rejoinder affidavit available on record.
Considering all the facts and circumstances of the case as well as the law laid down by Hon'ble Supreme Court in this connection as mentioned aforesaid, this Court comes to a definite conclusion that the applicant-petitioner has a very good case on merits. The Court is convinced that the applicants will not be able to get justice in the judgeship of Lucknow. The respondent is a practicing lawyer and her daughter is also in the same profession. In fact, she has argued the matter before this Court. The Courts are meant for dispensing justice to all. It has been said that Fiat justitia, ruat coelum; (Let justice be done, though heavens may fall).
Accordingly, the petition/application is allowed. Let the record of Regular Suit No. 62/2014 (Syed Ehsan Abbas vs. Tanzeemul Makatib and another) pending in the court of Civil Judge (Senior Judge), Mohanlalganj, Lucknow be transferred forthwith to judgeship of District Judge, Sitapur for further proceedings. The stay of the proceedings shall automatically lapse as soon as the file is received and the proceedings are started in Sitapur.
Dt.29.5.2014.
RKM.