AISHA BEGUM Vs. ALI MOHD RATHER

JUDGEMENT

(1.) A Suit for partition and injunction came to be instituted by Ali Mohammad Rather, plaintiff in the suit (respondent 1 herein) against the defendants in the suit (petitioners 1 to 8 and respondents 2 & 3 herein). It transpires that the suit was filed in the court of Sub Judge Budgam, subsequently transferred to the court of City Judge Srinagar who is seized of the matter. At some point of time the Principal District Judge Srinagar directed the trial court to deal with the matter expeditiously. The expression expeditiously was made a ground for a miscellaneous petition by the defendant alleging an apprehension of denial of justice. To set the controversy at rest, it was clarified by the learned Principal District Judge that "expeditiously" would mean reasonable speed which does not prejudice the rights of the parties in presentation of their respective contentions. Yet another transfer application was filed by the defendant before the Principal District Judge alleging bias against the Presiding officer on the ground of short adjournments. Having found that the averment was not well founded the application was dismissed by order dated 22/08/2002. This order of the learned Principal District Judge is assailed through this Revision Petition.

(2.) I have heard LC for the parties. It is seen that the suit is at its threshold notwithstanding the fact that its cognizance is taken by the Court in the year 1996, so much so issues have not been framed as yet and the inordinate delay is attributable to the defendants on the strength of the finding returned by the learned District Judge on the basis of record. It goes without saying that a finding based on judicial record is not open to doubt. The District Judge having come to the conclusion that the delay is brought about by the defendants, the direction for expeditious disposal had become imperative and has been rightly issued. The direction being there the subordinate court is duty bound to deal with the matter expeditiously in view of attending circumstances of this case, but not in violation of the provisions of the Code of Civil Procedure, which governs the proceedings in civil suits. Since there is no provision in the Code or in any statute which would prohibit the speedy trial of the suit, the conclusion that can be drawn is that the impugned order is free from legal infirmity.

(3.) IT has to be made clear that a case cannot be withdrawn on bald assertions. If that would be a situation countenanced in law then change of court has to be allowed on mere asking of a party, which is not permissible in law. Situations are conceivable where court may be convinced that miscarriage of justice has occasioned. In such eventuality interference by the court is called for. In the case on hand no instance much less convincing one is brought to the notice of the court which would hint at miscarriage of justice te the defendants. Conversely there is no progress in the suit as is evident from the fact that despite lapse of more than half a decade issues have not been framed which is the most glaring instance of delay on account of defendants fault as observed by the Principal District Judge in the impugned order, therefore, the defendants have no cause to seek transfer of the suit. In the given facts of the case, I cannot resist an observation that this motion is aimed at prolongation of the trial of the suit.