Jitendra Singh Vs. Bhanu Kumari & Ors [2008] INSC 636 (11 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
REPORTABLE CIVIL APPEAL NO. 2786 OF 2008 (Arising out of SLP (C) No. 4120 of
2007) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to order passed by a learned Single Judge of
the Rajasthan High Court, Jaipur Bench.
Respondent No. 1 had filed application in terms of Section 24 of the Code of
Civil Procedure, 1908 (in short the 'CPC') seeking transfer of Civil Case
No.41/202/05 titled Jitendra Singh v. Smt. Bhanu Kumari & Ors. pending
before the District and Sessions Judge, Alwar, Rajasthan to some other Court.
By the impugned order the High Court directed that the suit in question to be
transferred from the Court of Additional District Judge No.2 Alwar to the Court
of District Judge, Jaipur City.
3. Learned counsel for the appellant submitted that this is yet another
attempt to deny the appellant of his legitimate entitlement. It is pointed out
that in an earlier petition (Transfer Petition (C) No.1105 of 2005 titled
Maharaja Sewai Tej Singh v. Jitender Singh & Ors.) this court declined to
accept the prayer for transfer. But keeping in view the age and the state of
health of the petitioner in that case, directed appointment of a Guardian ad
litem. It is pointed out that in fact as has been noted by the High Court, a
learned counsel has been appointed as guardian ad litem. It is the stand of the
appellant that the reason which weighed with the High Court to direct transfer
is really of no consequence, more particularly in view of what has been stated
by this Court in the earlier Transfer Petition.
4. Learned counsel for the respondent on the other hand submitted that
taking into consideration the serious nature of the allegations made the High
Court has rightly directed transfer.
5. The High Court's conclusions based on the basis of which order of
transfer has been made, read as follows:
"Having scanned the record, I noticed that the suit was transferred by
the District Judge to the Court of Additional District Judge No.2, Alwar in the
month of December, 2005.
The petitioner although filed instant petition in this Court on August 17,
2006, did not mention this fact that the suit stood transferred from the Court
of District Judge Alwar. The Petitioner stated in para 3 of the petition that
the respondent Jitendra Pratap Singh is influential person and MLA of Alwar
City and he has created such a situation that there is astrong likelihood of
the matter pending before the District Judge being decided ex-parte against the
petitioner and other members. This apprehension of petitioner, in my opinion,
is baseless. The Courts are not influenced by politicians and influential
persons. The petitioner should repose full confidence upon the court of justice.
If ex-parte order was passed by the learned District Judge and the petitioner
was aggrieved by it, she ought to have assailed it legally. Passing of ex-parte
order by the Presiding Officer of the court cannot be a reasonable ground for
transferring the case.
But looking to the fact that on January 8, 2006 respondent Jitendra Singh
lodged FIR No. 19 of 2006 with the Police Station Kotwali Alwar against the
petitioner and respondents Amar Raj Pal and Jaswant Singh and case under
Sections 420, 467, 468 and 471 IPC has been registered against them and
considering the overall view of the nature of the case and convenience of the
parties and in the interest of justice, it would be just and reasonable to
direct transfer of suit from the court of Additional District Judge No. 2 Alwar
to the Court of District Judge, Jaipur City."
6. It appears that the High Court referred to the fact that the criminal
proceedings have been instituted against the appellant. It is pointed out by
learned counsel for the appellant that the filing of the FIR is really of no
consequence.
In respect of the plaint averments, in his reply before the High Court to
the transfer petition it was inter alia stated as follows:
"That the contents of sub para (xviii) are not admitted in the manner
stated. The answering respondent lodged the FIR (Annexure-9) on the facts
constituting the offences under different Sections of the Penal Code committed
by the accused persons named therein. It is denied that the respondent No.1
filed the FIR to exert pressure on the petitioner and to pressurise the lawyer
seeking to represent the petitioner. The allegations are baseless and wholly
without substance. It is humbly submitted that the respondent No. 2 acted
hand-in gloves with the petitioner Smt. Bhanu Kumari and her brother Yashwant
Singh, got a purported power of attorney prepared in his favour and acting upon
that the respondent No.2 negotiated for sale of the property of respondent No.
4 Maharaja Sawai Tej Singh Ji for a consideration of Rs.77,30,328/-. The
agreement entered into on 18.4.2005 besides being void was for inadequate
consideration.
The respondent No.2 as attorney received the part payment of the
consideration in cash and by cheque in his own name. The petitioner and the
respondent Nos. 2&3 to make wrongful gain colluded and connived with each
other to make the respondent No.4 sign documents or papers who was a person
under incapacity, incapable of understanding the contents to which he was made
to sign and/or that his signature was forged. The respondent No.2 Shri Amar Raj
Lall, Advocate acted against professional ethics and involved himself in
criminal conspiracy. True and correct copy of the power of attorney, agreement
for sale dated 18.4.2005 and the receipt dated 25.4.2005 are enclosed herewith
and marked as Annexure R-1/4, R-1/5 and R- 1/6 respectively. A true and correct
copy of the affidavit of respondent No.2 Amar Raj Lall, filed in transfer
petition before the Hon'ble Apex Court is filed herewith and marked as Annexure
R-1/7."
7. Though grievance is made by the respondents that no competent lawyer at
Alwar is willing to represent them, it is of significance to note that the suit
has been filed by two persons. Respondents 2 & 3 are represented by
experienced lawyers and they have been representing the respondents for very
long period. The parameters for exercise in Sections 24 &
25 have been laid down by this Court in several cases. Earlier than Transfer
Petition (Civil) No.1105 of 2005 was disposed of with certain directions.
8. The reasons which weighed with the High Court to direct transfer do not
appear to be germane warranting an order of transfer.
9. The purpose of Section 24 CPC is merely to confer on the Court a
discretionary power. A court acting under Section 24 CPC may or may not in its
judicial discretion transfer a particular case. Section 24 does not prescribe
any ground for ordering the transfer of a case. In certain cases it may be
ordered suo motu and it may be done for administrative reasons. But when an
application for transfer is made by a party, the court is required to issue
notice to the other side and hear the party before directing transfer. To put
it differently, the Court must act judicially in ordering a transfer on the
application of a party. In the instant case the reason which has weighed with
the High Court for directing transfer does not really make out a case for
transfer.
10. Accordingly the impugned order of the High Court is set aside.
11. Appeal is allowed.
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