PREM PRAKASH MISHRA Vs. J P BANSAL

JUDGEMENT

(1.) THIS application for transfer under Section 24 Code of Civil Procedure, 1908, has been filed with regard to Civil Miscelianeous Case No. 300/87 pending in the Court of Shri J. P. Bansal District Judge, Kota. The plaintiff-petitioner had filed a suit for eviction against the defendants Manglam Cement Ltd. , and Shri D. P. Mishra, Managing Director, Manglam Cement Ltd. That suit was decreed ex-parte on October 8,1987. On December 10, 1987 the decree was executed and according to the plaintiff-petitioner he got possession of the disputed house No. 120, Dashera Scheme, Kota. The defendants on the same day moved an application before the District Judge, Kota for setting aside the expert decree. The learned District Judge appointed a Commissioner to give a factual report about the taking of possession on the same day i. e. Dec. 10,1987. The Commissioner went on the spot and submitted his report. The learned District Judge then passed an order for giving possession of the disputed property to the Commissioner. The plaintiff aggrieved against the above order filed a revision before this court and S. C. Agrawal, J. allowed the revision No. 919/87 by order dated January 20, 1988. Agrawal J. , held that the order passed by the learned District Judge giving possession to the Commissioner was totally wrong and without jurisdiction and further directed that the possession be restored to the plaintiff petitioner till the application under Order 9 Rule 13, Code of Civil Procedure, 1908 was decided by the trial court. The court also fixed February 8,1988 for appearance of the parties before the District Judge, Kota It has been contended by the learned counsel for the petitioner that the District Judge is proceeding with the case with undue haste and the order dated December 10, 1987 giving possession to the Commi-sioner was also passed in an illegal manner which had already been set aside by this Court. It has been further alleged that though number of criminal cases are pending before the District Judge but an undue importance is being given to the present case which is of civil nature and does not require any urgent hearing. A notice was given to the defendant-non-petitioners and explanation of the Distt. Judge was also called. The District Judge in his explanation submitted that the copies of the order-sheets shall themselves prove the position taken by the petitioner in the present case. He emphatically denied that he was in any way interested in the case from the side of the defendants. The allegations that he acted in hot haste, has also been denied. He further submitted that he has no objection to the transfer of this case to another court. On the other hand, it has been contended by learned counsel for the defendants that the proceedings under Order 9 Rule 13 to set aside the exparte order can be decided on the basis of affidavits alone. It has been further submitted that the District Judge did not commit any act of hot haste in the present case and granted full indulgence to the petitioner for producing his evidence. It has been further pointed out that the conduct of the petitioner in proceeding with the case is to delay the proceedings. It is further submitted that even if a wrong order is passed by a court, it cannot be a ground for transfer of a case from that Court.

(2.) I have carefully considered the arguments advanced by learned counsel for both the parties and have perused the order dated December 10, 1987 and the order passed by S. C. Agrawal, J. in the revision decided on January 20, 1988, and also the various order-sheets passed from time to time in the proceedings of the Civil Miscellaneous Case No. 300/87. It is well settled that justice should not only be done but seem to be done. It is not necessary for the petitioner in such cases to prove any definite bias against the Presiding Judge but it is enough if the petitioner can show that he has genuine apprehension that be would not get justice from the Court in which his case is pending. In the present case, the District Judge had appointed a Commissioner to submit the factual report on December 10,1987. The order-sheet of December 10, 1987 itself shows that the report of the Nasir had not been received and before receiving the report of the Nasir, learned District Judge passed an order that the possession of the premises in question would remain with the Commissioner. This order passed by the learned District Judge was totally wrong, illegal and without jurisdiction. As already mentioned above the plaintiff had filed a revision against the above order and Agrawal J. , while allowing the revision clearly took the view that the above order passed by the learned District Judge was absolutely wrong and without jurisdiction. Not only that Agrawal J. , while deciding the revision also gave a direction to give possession of the disputed property to the plaintiff as according to the report of the Nasir he had been given possession over the property in question in execution of the ex parte decree passed in his favour. This sort of conduct from the part of the learned District Judge coupled with other order-sheets in the case clearly go to show that the petitioner is justified in alleging that he has genuine apprehension in his mind that he would not get justice from the Court of Shri J. P. Bansal, District Judge, Kota in the present case. I am not-concerned in the present case with the merits of the application filed by the defendants for setting aside the exparte decree passed against them. However, l am fully convinced that the plaintiff-petitioner has made out a case of transfer of Civil Miscellaneous Case No 300/87 which is at present pending before the District Judge Kota. The court of Additional District Judge No. 1 is already functioning at Kota and no prejudice could be pressured if the above case is now tried by this Court.