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RAM NARAYAN versus RAKESH TANDON & OTHERS

High Court of Judicature at Allahabad

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Ram Narayan v. Rakesh Tandon & Others - WRIT - C No. 5875 of 2000 [2006] RD-AH 2021 (25 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

   Court No.26

Civil Misc. Writ Petition No. 5875 of 2000

Ram Narayan

   Versus

Rakesh Tandon and others

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the order-dated 27.10.1999 passed by the respondent No.3 in Civil Revision No.7 of 1998, Secretary, Jhansi Development Authority and another Vs. Ram Narain (Annexure 14 to the writ petition).

The facts arising out of the writ petition are that a suit was filed by the petitioner which was numbered as Suit No.418 of 1993 against one Rakesh Tandon and another before the Court of Munsif Jhansi for permanent injunction restraining the defendants from interfering in making any constructions in any manner whatsoever over the land of Plot No.1612 area 18 x 09 situated in village Lahar Gird, Jhansi. The allegations made in the plaint were that the petitioner had purchased the said area by a registered sale deed on 21.7.1990 from Prakash Narain Tandon Mukhtare-am and son of the owner. His name was entered in the revenue record.  The Defendant Nos.1 and 2 have no right or authority to interfere in the proposed construction.

The defendant Nos. 1 and 2 contested the suit and denying the allegations made in the plaint on the ground that Prakash Narain Tandon is not the owner and had got no authority to execute the sale deed.  It was also submitted that a trust was created on 9.7.1946 and two third share of the land is included in the trust property.  It was also pleaded by the defendant respondent that Suit No.488 of 1991 in respect of the same property is pending in the Court of Munsif Jhansi and the suit is not cognizable by the Civil Courts.  On the pleadings of the parties the Trial Court has framed nine issues on 5.3.1994. Thereafter, issue Nos. 10 and 11 were added on 13.2.1996.  It has been submitted on behalf of the petitioner that the Trial Court while disposing of the application for temporary injunction directed the parties to maintain status quo.  The Trial Court decided issues Nos. 4, 5 and 11 as preliminary issues.  Issue Nos. 4 and 11 relate to the applicability of Section 10 of C.P.C. while issue No.5 relates to the jurisdiction of the Court.  The Trial Court after hearing the counsel for both the parties have decided the issues by its order dated 24.11.1997 in negative, in favour of petitioner.

Aggrieved by the order passed by the Trial Court, the defendant respondent Nos.1 and 2 filed a revision before the respondent No. 3, who was posted, as VIth Additional District Judge.

An application was filed on 12.8.1999 with a request that there is an apprehension of not getting justice, therefore, it will be appropriate that the revision be transferred to any other Court.   The reason stated in the said application that in Case No.11 of 1992 (Kailash Narain Tandon Vs. State of U.P.and others)  decided by the same presiding officer that is respondent No.3 in favour of the defendant and the case was being conducted by one Ram Ratan Agarwal working as DGC and the same plot and the property purchased by the petitioner from Sri Kailash Narain Tandon and the respondent No.3 has decided the case against him on 30.5.1998, therefore, it was requested that in the interest of justice it will be appropriate that the matter be sent to another Court but the presiding officer has not passed any order and initiated contempt proceedings against the petitioner and issued a show cause notice as to why the contempt proceeding should not be drawn and rejected the application on the same day i.e. 28.9.1999 and the petitioner was also taken into custody by the Court for some time.  The order dated 28.9.1999 is being quoted below-

"The application is frivolous and misconceived. It contains several averments which cast doubt on the impartiality of this Court.  However, there is no reason why this court should not proceed to hear this case. The application is rejected.  Applicant to show cause why proceedings be not drawn against him for averments made in the affidavit accompanying this application within 15 days.  Put up on 14.10.99."  

When the petitioner came to know regarding the aforesaid action, he immediately filed a transfer application before the District Judge, Jhansi. The District Judge vide its order dated 26.10.1999 has passed the following order:-

"Heard. Register as Misc.Case.

Summon the record.  Put up therewith tomorrow for hearing."

The order passed by the District Judge dated 26.10.1999 was received in the Court of respondent No.3 at 4.00 p.m. on the same day.  Therefore, it has been submitted on behalf of the petitioner that the respondent No.3 was in full knowledge that a transfer application has been filed and the order of the District Judge dated 26.10.1999 was received in the office of the respondent No.3, therefore there was no occasion to respondent No.3 to hear the matter and to decide the same but the respondent No.3 has decided the revision filed by the opposite party on 27.10.1999 and when the transfer application was taken before the District Judge, the District Judge has passed the following orders:-

 "The application has become infructuous as the judgment has already been delivered in the case sought for transfer. The same is accordingly rejected."  

In such circumstances, the petitioner submits that as the petitioner was fully apprehending that he will not get any justice from that Court and an application was filed and the respondent No.3 was fully aware regarding the transfer application filed before the District Judge, therefore, the revision should not have been decided.  It has further been submitted by the petitioner that the apprehension of the petitioner came true when the revision filed by the respondent has been allowed vide its order dated 27.10.1999.  The matter has been remanded for decision  a fresh.  The operative portion of the order passed by the respondent No.3 dated 27.10.1999 in Revision No.7 of 1998 is being reproduced below:-

"fuxjkuh Lohdkj dh tkrh gS rFkk voj U;k;ky; dk vkns'k  fnukda 24zzz-11-97 vikLr djrs gq;s ;g funZas'k fn;k tkrk gS fd bl fu.kZ; esa fn;s x;s funZs'kkas ds vuqlkj okn fcUnq la04] 11]o 5 dk fuLrkj.k djsa k "

Aggrieved by the aforesaid order, the petitioner has approached this Court.

The writ petition was entertained and this Court vide its order dated 22.10.2002 was pleased to admit the writ petition and further proceedings in Suit No.418 of 1993 was stayed.    

In view of the aforesaid fact, the petitioner submits that order passed by the Revisional Court dated 27.10.1999 is liable to be quashed as the respondent No.3 who was posted as Additional District Judge and has been impleaded party by name and notices were issued and affidavit of service has been filed after  service.

I have perused the order sheet and from the order sheet it is clear that service upon the respondents are sufficient.  Subsequently, the petitioner was directed to serve the respondents personally and to file an affidavit of service.  An affidavit of service has been filed which is on record.  From the perusal of the record, it is clear that the same has been received by all the respondents but in spite of the aforesaid fact, no counter affidavit has been filed. As the service on the respondent No.3 has been served in view of the affidavit of service filed by the petitioner, the respondent No.3 on the basis of the direction issued by this Court has submitted an explanation in three paragraphs. But from the explanation given by the respondent No.3 the Court express displeasure as the respondent No.3 in his explanation has not whispered a word regarding knowledge of the pendency of the transfer application against him and the order, which was passed on 26.10.1999 by the District Judge, Jhansi.  No explanation to this effect has been given by the respondent No.3 how in spite of the fact that the order of the District Judge on transfer application dated 26.10.1999 was received on the same day at 4.00 p.m. and the District Judge has passed an order summoning the record and had directed that the application for transfer be put up tomorrow i.e. on 27.10.1999, then under what circumstances in spite of the knowledge the respondent No.3 has decided the Revision on 27.10.1999 without waiting the order passed by the District Judge on transfer application. The explanation submitted by the respondent No.3 cannot be said to be the reply in view of the facts and circumstances of the present case.  The respondent No.3 due to the aforesaid conduct appears to be interested into the matter and the intention of the Presiding Officer before whom the revision was pending.

As no counter affidavit has been filed, therefore, the averments made in the writ petition is treated to be correct in view of the judgment reported in AIR 1988 S,.C. Page 821 and A.I.R. 1962 Allahabad, Page 407.

I have heard learned counsel for the petitioner and the learned Standing Counsel and have perused the record.

From the record, it is clear that at the initial stage when the revision was filed before the respondent No.3 an application was filed and due to filing of the said application the presiding officer has initiated a contempt proceedings against the petitioner. From the certified copy filed by the petitioner (Annexure 12 to the writ petition) it is clear that order passed by the District Judge, Jhansi on transfer application dated 26.10.1999 was communicated in the office of the Presiding Officer that is respondent No.3 on the same date at 4.00 p.m. and the Additional District Judge before whom the Revision No.7 of 1999 was pending was having full knowledge regarding filing of the transfer application and the order of the District Judge. Therefore, in my opinion it was not proper on the part of the presiding officer to proceed with the matter and he should have adjourned the matter and waited for the decision on the transfer application filed by the petitioner.  This clearly goes to show that in spite of the knowledge of the pendency of the transfer application before the District Judge and summoning the record the presiding officer was in haste to decide the revision and immediately on the next date without waiting for the decision on the transfer application filed by the petitioner, has decided the revision against the petitioner.  It clearly goes to show that the apprehension of the petitioner was correct.  As there is no denial of the allegations made in the writ petition by the respondent Nos.1 and 2.  As regards, the explanations given by the respondent No.3 as stated earlier, the Court express displeasure regarding explanation. There is no explanation by the respondent No.3 that under what circumstances and what was the necessity to decide the case finally in spite of the fact that he was having full knowledge regarding pendency of the transfer application before the District Judge.  The reply given by the respondent No.3 cannot be said to be satisfactory and reasons have not been disclosed by the respondent No.3 that why he has decided the case on the next date. No explanation to this effect has been given by the respondent No.3 that why he was in so haste or interested in deciding the revision in spite of the fact that he was having full knowledge regarding pendency of the application for transfer of Civil Revision No.7 of1998 pending before the District Judge.

In view of the judgment in P.K.Ghosh, I.A.S and another Vs. J.G.Rajput reported in.A.I.R.1996 Supreme Court 513, the relevant observation made by the Apex Court is reproduced below:-

"9. We are indeed sad that in these circumstances, B.J.Shethna, J. should have persisted in hearing the contempt petition, in spite of the specific objection which cannot be called unreasonable on the undisputed facts, and in making the impugned order accepting prima facie the respondent's above noted contention.  Ordinarily, at least at that stage it should have been appreciated that the more appropriate course for him to adopt was to recuse himself from the bench hearing this contempt petition, even if it did not occur to him to take that step earlier when he began hearing it.  It is non account of the lack even now of the proper perception needed of the appropriate course for a Judge to adopt in these circumstances that it has become our painful duty to emphasis on this fact most unwillingly.  We do so with the fervent hope that no such occasions arise in future which may tend to erode the credibility of the course of administration of justice.

A basic postulate of the rule of law is that ''justice should not only but it must also be seen to be done.' If there be a basis which cannot be treated as unreasonable for a litigant to except that his matter should not be heard by a particular judge and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned Judge should recuse himself from the Bench hearing that matter.  This step is required to be taken by the learned Judge not because he is likely to be influenced in any manner in doing justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge, may be subconsciously, has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite party.  Credibility in the functioning of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary.  This is necessary not only for doing justice but also for ensuring that justice is seen to be done."

Apex Court has held that if there is any apprehension in the mind of any party, that he will not get justice and it has come to the knowledge of the presiding officer.  It will be in the interest of justice to transfer the case to another Court.  From the record it is clear that the presiding officer who has decided the Revision No.7 of 1998 has not acted in a judicial manner in spite of the fact that he was having full knowledge regarding the apprehension of the petitioner as well as the order of the District judge on transfer application.

In view of the aforesaid fact, I am of the opinion that he order passed by the VIth Additional District Judge in Civil Revision No.7 of 1998 (Secretary Vs. Ram Narain ) dated 27.10.1999 is liable to be quashed the matter is remitted back to the Revisional Court to decide a fresh after affording full opportunity to the parties.

The writ petition is allowed.   There shall be no order as to costs.

25.1.2006

SKD


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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