Hon'ble Rakesh Tiwari, J.:-

Heard learned counsel for the parties and perused the record.

Release application no. 5 of 1999; Somaru Ram Vs. Deena Nath Upadhyaya and others moved by the respondents on 02.04.1999 was rejected on 11.3.2004 in default for non appearance of the landlord. Thereafter, recall application was moved which was allowed on 02.02.2007 and the case was restored to its original number. Subsequently, the case was transferred on 18.01.2010 to the court of IVth Civil Judge (Senior Division), Varanasi.

The contention of learned counsel for the petitioners is that the Presiding Officer namely IVth Civil Judge (Senior Division), Varanasi took extraordinary interest in disposal of the P.A. Case No. 5 of 1999 for the reason that the residence of the Presiding Officer said to be at Allahabad, located next to the residence of the son of the landlord namely Dinesh Kumar Verma who is said to be studying in Agriculture Institute at Allahabad; that the applicant was surprised to over-hear Dinesh Kumar Verma talking to his real brother inside his shop that he would manage to get an order in his favour in the case; that this fact is affirmed by the conduct of the Presiding Officer who has been fixing dates at long interval in other cases, but is fixing in his P.A. Case No. 5 of 1999 short date.

In the aforesaid circumstances, the petitioners moved transfer application under section 3 (e) of U.P. Act No. 13 of 1972 which was rejected by the District Judge, Varanasi on 21.8.2010 holding that the case is fixed for hearing on 18.5.2010 and also holding that Dinesh Kumar Verma son of Raj Kumar Verma has no relation with the Presiding Officer.

The District Judge considered the cases cited by the applicant as under: 2008 (1) ARC 642 SC; Kulvinder Kaur alias Kul Vinder Gurucharan Singh Vs. Kandi Fendrum Education Trust and others, AIR 1992 SC 1133; Pushpa Devi Saraf and others Vs. Jai Narain Parasharm Puriya and others and (2009) 8 SCC 646 Nahar Industrial Enterprises Ltd. Vs. Hang Kang & Sanghai Banking Corporation.

After considering the ratio laid down in the aforesaid cases, the District Judge found that there is no basis for such allegation made by the applicant for transferring the case and that the court before whom transfer application is made should consider all the facts and circumstances before accepting such application. The District Judge further held that there is no basis to allow the transfer application.

It appears from the record that according to the Prescribed Authority the scheme of the Act provides such cases are to be decided within the time prescribed in various provisions of the Act and in view of this short dates are fixed in rent cases to comply with the provisions of the Act in letter and spirit and this effort is being made to achieve the aims and object of the Act. It is this order which is under challenge in the present writ petition.

Learned counsel for the petitioner submits that the order passed by the District Judge, Varanasi impugned in the present writ petition is without jurisdiction as transfer application no. 125 of 2010 could not have been entertained by him.

Learned counsel for the petitioner has placed reliance upon paragraph 10 of the case reported in (1995) 6 SCC 744: P.K. Ghosh, IAS & another Vs. J.G. Rajput.

Paragraph 10 of the aforesaid judgment is quoted as under:

"A basic postulate of the rule of law is that "justice should not only be done but it must also be seen to be done". If there be a basis which cannot be treated as unreasonable for a litigant to expect 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 rescue 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".

A reading of the aforesaid paragraph shows that ratio laid down by his lordships is that proper course to be adopted when objection on reasonable basis taken against the Judge hearing the matter i.e. if on facts Judge was biased. In the aforesaid cases 'B' appeared as counsel for a suspended municipal employee in a writ petition and obtained an order staying the suspension - B was later on elevated to the Bench of the same High Court and thereafter the said employee represented by another counsel. The writ petition culminated in a settlement before the High Court. After recording the statement the High Court permitted withdrawal of the writ petition. Subsequently, a review application filed by the employee was rejected by the High Court on the ground that the terms of the settlement have already been complied with. Thereafter the employee was served with a charge-sheet. The employee's application for staying the inquiry pursuant to the said charge-sheet, for punishing the officers of the Municipal Corporation for contempt of court and for restoring the withdrawn writ petition was rejected by the High Court. However, the employee did not accept the controversy in the said writ petition to have concluded and filed a contempt petition. A Division Bench of the High Court comprising of 'B' and another Hon'ble Judge issued notice in the matter. On the date of return of the notice, the Municipal Corporation objected to the hearing of the matter by the Bench which included 'B' and also opposed the contempt application on merits.

The Apex Court in these circumstances held that appropriate course for 'B' was to have rescued himself from hearing the contempt matter - Hence, the order of interim stay of the departmental inquiry against the contempt-petitioner passed by the said Bench was held to be vitiated.

Learned counsel for the petitioner further relied upon paragraph 9 in the case of Pushpa Devi Saraf and another V. Jai Narain Parasrampuria and others reported in AIR 1992 SC 1133 wherein it has been held by his lordship of the apex court that

"We, however, feel that the learned Presiding Officer has been unduly affected by the allegations levelled against him, as would be evident from his report. In this view of the matter, we are inclined to think that in the interest of the learned Presiding Officer himself, the suit may be sent to another court. We, accordingly, request the learned District Judge, Kanpur to transfer the said suit (Suit No. 537 of 1984 on the file of VIIth Additional District Judge, Kanpur) to such other Additional District Judge, as he may designate in this behalf. Such transferee-court shall proceed with the suit expeditiously as directed by this court."

Learned counsel for the petitioner has lastly relied upon paragraph 10 of the judgment rendered in the case of Zahurauddin alias Babu Vs. Shri Ashok Kumar & others reported in 1998 (2) JCLR 865 (All) in which it has been held that;

"Under the provisions of Section 22 of the Rent Control Act, the District Judge has been empowered to hear the appeals but at the same time, to such appeals also, entire provisions of CPC have not been made applicable. Only those provisions of CPC as have been specified either in Section 34 (1) or in Rule 22, have been made applicable. The District Judge under the scheme of the Act only Acts as an appellate authority and not as a Civil Court or a Court of civil jurisdiction within the meaning of the Code of Civil Procedure. The word 'appeal' used in Section 24, C.P.C. refers only to appeals pending in any Court of civil jurisdiction which is subordinate to the High Court or the District Court as the case may be, and in my opinion this word would not relate to an appeal filed under Section 22 of the Rent Control Act."

In the instant case, the petitioner had not appealed to the District Judge against any order of the Prescribed Authority/IV Addl. Civil Judge, Varanasi but had moved transfer application under Section 3 (e) of the Act for transfer of the case.

Section 3(e) of the Act is quoted for ready reference.

"Prescribed authority" means a Civil Judicial Officer or Judicial Magistrate authorised by the District Judge to exercise, perform and discharge all or any of the powers, functions and duties of the prescribed authority under this Act, and different such officers may be so authorised in respect of different areas or cases or classes of cases and the District Judge may recall any case from any such officer and may transfer it for disposal to any other such officer"

The District Judge who is the head of the district court has administrative power to transfer the case from one court to another court. In this view of the matter, the contention of learned counsel for the petitioner that the District Judge has no jurisdiction to entertain transfer application cannot be sustained. Moreover, If the District Judge had no jurisdiction, the petitioner had no cause to move the transfer application before him for transfer of the case.

In view of this, I am of the opinion that the cases cited by the petitioners are not applicable in the present facts and circumstances of this case. Rather, ratio laid down in the aforesaid two judgments appears to be that Bench hunting should not be permitted. Mere allegation against judicial officers are not warranted unless they are substantiated with incorrigible proof.

The District Judge has found that the allegations are baseless and without rational and that learned counsel for the petitioner has not been able to show or establish that the allegations against the officer to be true or having any element of correctness.

For all the reasons stated above, this Court is of the view that P.A. Case No. 5 of 1999 was filed with malafide intent for the reasons best known to him only to delay the proceedings of the case and the allegations made against the presiding officer appears to be without any basis.

In the case of Salem Advocate Bar Association, Tamil Nadu Vs. Union of India reported in AIR 2005 SC 3353, wherein it has been held thus:

"So far as awarding of costs at the time of judgment is concerned, awarding of costs must be treated generally as mandatory inasmuch as the liberal attitude of the Courts in directing the parties to bear their own costs had led the parties to file a number of frivolous cases in the Courts or to raise frivolous and unnecessary issues. Costs should invariably follow the event. Where a party succeeds ultimately on one issue or point but loses on number of other issues or points, which were unnecessarily raised. Costs must be appropriately apportioned. Special reasons must be assigned if costs are not being awarded. Costs should be assessed according to rule in force. If any of the parties has unreasonably protracted the proceedings, the judge should consider exercising discretion to impose exemplary costs after taking into account the expense incurred for the purpose of attendance on the adjourned dates."

From the law laid down by the Hon'ble Apex Court in the aforesaid case of Salem Advocate Bar Association (supra), it is apparent that non-payment of cost is an exception for which special reasons have to be given by the Court and that in normal circumstances cost has to be awarded on the party according to the issue decided in favour of the party which were unnecessarily raised. After considering provisions of Rule 9 of Chapter XXII and Rule 11 of Chapter XXI of the High Court Rules, 1951 and provisions of Sections 34, 35A and 35B of the Code of Civil Procedure has held that while awarding interest on a party by non-payment of principal amount or any dues should also be considered by the Court and not only interest but penal interest may also be awarded. The cost so imposed should be in accordance with rules and if the proceedings are unnecessarily protracted or adjournments have been sought it is also upon the discretion of the Judge to impose exemplary or deterrent cost taking also into account the facts and circumstances of each case.

The writ petition is, accordingly, dismissed with deterrent costs of Rs.15,000/- in the facts and circumstances of this case and in view of the judgment rendered by the Apex Court.