SANTOKH SINGH Vs. PREM SARUP AND OTHERS

JUDGEMENT

(1.) A prayer has been made for the transfer of the cases from the file of the learned Additional District Judge Hissar to that of the learned District Judge Hissar on the ground that the learned Additional District Judge has already expressed an opinion which is against the interests of the petitioners in some other appeals already disposed of by him. On that very basis an application was made before the learned Additional District Judge for the transfer of the cases. This prayer was allowed by him and he forwarded the cases to the learned District Judge with the request that the same may be transferred to his file and decided by him. The learned District Judge, however, declined this request. This application has been filed under section 24, Code of Civil Procedure, for the transfer of the appeals to the file of the learned District Judge. In support of his contention, Mr. Ram Rang has relied upon Mt. Paro v. Chhajja Singh : A.I.R. 1934 Lah 539. In that case Abdul Rashid, J., (as the learned C.J. then was) transferred the cases on the ground that the learned presiding Officer had expressed an opinion on the same point earlier. It might be noted that the view taken by the learned Judge ran counter to the cases earlier decided by this Court in Jai Kishan Das v. Arya Parti Nidhi Sabha, A.I.R. 1921 Lah 357, Narain Devi v. Shankar Dass : A.I.R. 1926 Lah 345, and Bahadur Singh Arjan Singh v. Emperor : A.I.R. 1938 Lah 176. The same matter came up for consideration before Blacker, J., in Mohd. Ashraf and others v. Buta Mal : A.I.R. 1944 Lah 400. The learned Judge was originally inclined to refer the case to a larger Bench in view of the conflicting judicial authorities but later on decided against this course on the ground that the question involved was only of discretion. He accordingly distinguished Mr. Para's case (supra) and relying upon the earlier cases held that the expression of opinion by the presiding Officer of the Court was no ground for ordering the transfer of a case. This view was later on followed by a recent judgment of the Delhi High Court in Krishan Kanahya v. Vijay Kumar : A.I.R. 1976 Delhi 184. Prima facie, I am in respectful agreement with the view taken by Blacker J. but another difficulty has arisen in the instant case, i.e. the learned appellate authority has itself requested the learned District Judge that these appeals be transferred from his file for being decided by the latter. In Sita Ram Rastogi v. Balak Ram Dubey : A.I.R. 1933 Oudh 154, on somewhat similar grounds a Division Bench of that Court held that a prayer for transfer should be allowed. While rendering the judgment they observed that it would be embarrassing for the learned Judge who had earlier expressed the opinion about the same matter to arrive at a finding contrary to the one already arrived at by him. In that case even though the case related to Faizabad district, the learned Judges of the Division Bench transferred the same to the District Judge of the Lucknow district. In the instant case, no such difficulty is likely to arise because a District Judge competent to dispose of the appeals is also posted at the same place. In the circus stances, I hold that normally speaking, merely because an appellate court has expressed an opinion about the merits of a controversy in one case is no ground to transfer, another case in which a similar opinion is likely to be expressed, but where a presiding Officer himself expresses a feeling that he would feel embarrassed while deciding the latter appeals it would be fair and proper to transfer the cases to another appellate court of coordinate jurisdiction. I might also add that as far as the State of Haryana is concerned, the scope of second appeal has become quite limited and in that view of the matter also it looks proper that another appellate court which is equally competent to hear the appeals should hear and decide the same in accordance with law. The petition is accordingly allowed and appeals are transferred to the Court of the learned District Judge, Hissar for decision in accordance with law. No order as to costs.

(2.) THE parties through their learned counsel are directed to appear before the learned District Judge, Hissar, on January 15, 1979.