NARAYAN ACHARYA Vs. KISHANLAL

JUDGEMENT

(1.) By filing this petition under Article 227 of the Constitution, the petitioner/plaintiff has challenged the order dated 17.7.2012 passed in Misc.Civil Case No. 12/2012 by the court below. By the impugned order the petitioner's application preferred under section 24 CPC for transferring the said matter was rejected by the court below.

(2.) The necessary facts for adjudication of this matter are as under:- The petitioner preferred a suit for declaration and permanent injunction against the respondents. The defendants/ respondents filed an application under Order 7 Rule 11 CPC, which was allowed by the trial Court on 8.11.2011. The petitioner feeling aggrieved by the said order dated 8.11.2011 preferred First Appeal No. 315/2011 before this Court. A Division Bench of this Court by order dated 13.4.2012 allowed the appeal and remitted the matter back for further proceeding. The petitioner, on remand, started participating in the matter. The petitioner on 19.6.2012 filed an application under Order 14 Rule 5 CPC, which was disallowed by court below on 19.6.2012. The petitioner preferred yet another application under Order 6 Rule 17 CPC for amendment in the pleadings which was also rejected by the court below on 20.6.2012. In the present petition it is alleged that the perusal of the order sheets whereby aforesaid applications preferred under Order 14 Rule 5 CPC and Order 6 Rule 17 CPC are rejected would show that the trial court was prejudiced with the petitioner. It is further alleged that the trial court is conducting proceedings on day to day basis which shows its prejudice against the petitioner. In para 5.7 of writ petition it is stated that the learned court on several occasions orally stated that the orders of the trial court are set aside at the instance of the petitioner and this attitude of the trial court shows its bias. The application preferred under section 24 CPC dated 18.6.2012 is Annexure -5. The respondents/defendants filed their reply, Annexure P-6, on 10.7.2012. Shri Pawan Dwivedi submits that the application under section 24 CPC (Annexure P-5) was filed along with written submissions (Annexure P-6) on the same date. In nutshell, it is stated that the court below is biased and the learned District Judge has erred in rejecting the application under section 24 of CPC. In support of the contention, the judgment of Supreme Court in (Kulwinder Kaur alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and others, 2008 3 SCC 659) and judgment of this Court reported in (Vishnu Goyal vs. Jyoti Sharma (Smt.) and another, 2009 5 MPHT 450) are relied upon.

(3.) Per Contra, Shri N.K.Gupta learned counsel for the respondents No.4 to 8 supported the order passed by the court below and relied on certain judgments.