ROHIT KUMAR Vs. BODHPAL SINGH

JUDGEMENT

(1.) The plaintiff-appellants have preferred this appeal under Order 43, Rule 1, C.P.C. against the order, dt. 3-8-1996 passed by the learned Additional District Judge No. 2, Udaipur in Misc. Case No. 77/ 95 whereby the learned Additional District Judge dismissed the application filed by the petitioners under Order 39, Rules 1 and 2, C.P.C. The plaintiffs filed a suit for declaration and permanent injunction against their father Bodhpal Singh and Prabhash Chandra, respondents, with the allegations that Shri Bodhpal Singh purchased plot No. 177 from City Improvement Trust and constructed house thereon in the year 1960. Bodhpal Singh obtained a loan of Rs. 7,600/- on 11-11-1959 for constructing the house. The plaintiffs alleged that Bodhpal Singh also obtained mandatory assistance from his father Balwant Singh in the purchase of the plot and the construction of the house. The plaintiffs paid the instalments on behalf of Bodhpal Singh. Bodhpal Singh let out part of the house to Harold Filaman on rent. Defendant No. 1 Bodhpal Singh filed a suit for eviction against the said Herald Filaman and appointed respondent No. 2 his advocate. It was alleged by the plaintiffs-appellants that taking advantage of his position, defendant No. 2 impressed upon Bodhpal Singh that it was easy to get the house vacated and persuaded Bodhpal Singh to made transfer of the house in his favour. Since Bodhpal Singh was not mentally healthy and strong, he fell prey to the influence of respondent No. 2 and executed an agreement to sale in favour of respondent No. 2 on 5-6-1986 for a sum of Rs. 1,50,000/- whereas the real value of the house was not less than Rs. 30 lacs. The plaintiffs have challenged the above transaction on the ground that the above property was a Joint Hindu Family Property and as such Bodhpal Singh was not authorised and competent to alienate the same in favour or respondent No. 2. The above transaction was without consideration and the agreement to sale was executed by Bodhpal Singh without exercising his free will as he was mentally ill. The plaintiffs further alleged that the respondent No. 2 filed a suit for specific performance of contract against respondent No. 1 on the basis of the agreement to sale. Respondent No. 1 did not contest the suit and a consent decree was, therefore, passed in favour of respondent No. 2 and against respondent No 1. By filing the above suit, the appellants have challenged the above decree on ground of fraud and mental illness of respondent No. 1 who could not exercise his free will in executing the agreement to sale. The decree is vitiated by fraud and collusion. Along with the plaint, the appellant filed an application under Order 39, Rules 1 and 2, C.P.C. During the pendency of the application, the trial Court passed an order directing the parties to maintain status quo on 21-10-1995. The appellants have stated that in the first week of July 1996, the appellants came to know that one Addl. S. P., Shri B. S. Jhala, who is a friend of defendant No. 2 is also interested in the decree dt. 15-11-1994. He is also a friend of the Addl. Distt. Judge No. 2, Udaipur. He resides in the neighbourhood of Addl. Distt. Judge No. 2. The appellants, therefore, apprehended that they would not get justice at the hands of the Presiding Officer of the Court. The appellants, therefore, moved an application for transfer before the Distt. Judge, Udaipur on 31-7-1996. This application was listed for admission on 1-8-1996. Prior to the admission, the learned Distt. Judge has heard the preliminary objections of defendant No. 2 and fixed the transfer application on 9-8-1996 in presence of defendant No. 2. The learned Addl. Distt. Judge had fixed this case for final hearing of the temporary injunction application on 2-81996. On 2-8-1996, the appellants prayed before the learned Addl. Distt. Judge to fix the case for hearing of the injunction application after the decision on the application for transfer moved before the learned Distt. Judge. The learned Addl. Distt. Judge adjourned the case to 1-8-1996. The appellants moved an application before the learned Distt. Judge on 2-8-1996, requesting to hear the transfer application immediately and the learned Distt. Judge passed an order for hearing the transfer application on 3-8-1996. However, on trial day, the learned Distt. Judge was on leave. The case was then fixed on 9-8-1996. In view of the above developments, a request was made to the learned Addl. Distt. Judge for adjourning the case on 9-8-1996 or thereafter. It was rejected by the learned Addl. Distt. Judge and the temporary application of the appellants was decided by the learned Addl. Distt. Judge ex parte against the appellants on 3-8-1996.

(2.) I have heard learned counsel for the appellants and the respondent . No 2 in person.

(3.) Learned counsel for the appellants has highlighted the above development and submitted that the learned Addl. Distt. Judge has acted illegally in dismissing the appellants' application under Order 39, Rules 1 and 2, C.P.C. during the pendency of the transfer application before the learned Distt. Judge. It was not proper on the part of the learned Addl. Distt. Judge to dispose of the application in view of the transfer application moved before the learned Distt. Judge and is was likely to be decided very early. By doing so, the learned Addl. Distt. Judge has violated the established judicial principles that justice should not only be done but should also appear to have been done. Secondly, the learned Addl. Distt. Judge decided the above application without hearing the appellants. The learned Addl. Distt. Judge only heard respondent No. 2 and the counsel for the respondent No. 1. In the facts and circumstances of the case, it was very reasonable and proper for the learned Addl. Distt. Judge to have acceded to the request of the appellants to adjourn the case till the transfer application was decided. He has further contended that the learned Addl. Distt. Judge has not considered the special facts and circumstances of the case which clearly disclose that the decree dt. 15-11-1994 was obtained by the respondent by fraud. The decree is also without consideration. The learned Addl. Distt. Judge has also not properly appreciated the requirement which guide the disposal of such application. The appellants had a very strong prima facies case. The balance of convenience too was also in their favour.