Prem Narain Verma Petitioner v. Additional Disrict Judge Court No. 5 Barabanki & Others S

Hon'ble Vinay Kumar Mathur, J.

Counter affidavit and rejoinder affidavit have been exchanged between the parties. I have heard learned counsel for the parties and perused the record carefully.

Learned counsel for the petitioner has submitted that the petitioner is an old retired Government Servant and till the death of his elder brother, the three brothers of the petitioner and their children were members of HUF and his late brother Chhatrapati was karta and no partition took place between the family members. Immovable property was purchased in the name of karta of the family late Chhatrapati which included a land adjacent to ancestral house of the petitioner. A market was also constructed on this piece of land and the same property is in the joint names of the petitioners and his brother Ram Chandra in the record of Nagar Parishad, Barabanki. After the death of the elder brother of the petitioner who was the karta, a mutual partition took place on 05.07.2009 After some time opposite party Nos. 2 to 7 disagreed with the said family settlement. Therefore, the petitioner had to file a partition suit which is numbered as regular Suit No. 280 of 2010 and is pending in the Court of Additional Civil Judge (Senior Division), Court No. 3, Barabanki. The petitioner also moved an application under Order 39 Rule 1 and 2 read with Section 151 C.P.C, for grant of interim relief in which interim relief was granted after hearing the parties vide order dated 30.05.2011 against the defendants restraining them from not to cause any harm to the property or to make any change in it till the final disposal of the suit. The opposite parties have been causing delay and adopting dilatory tactics so that they may enjoy fruits of the property. In furtherance of this object they have filed Misc. Civil Appeal No. 30 of 2011 against the interim order in the Court of District Judge, Barabanki. It has been submitted that more than 46 adjournments have taken place in the miscellaneous appeal and despite a lapse of more than 15 months, the appeal has not been decided by Additional District Judge, Court No. 5. Further contention is that opposite party No. 6 who is one of the appellants is a practising lawyer in district court, Barabanki and is also a defendant in the regular suit. He has been elected as junior member executive of Bar.

Further submission is that son of opposite party No. 3.Narendra Kumar Verma is also a practising lawyer in Barabanki Court and is also a Government Counsel in district court. It has been alleged that both the local lawyers who are highly interested are bent upon that the regular suit as well as the miscellaneous appeal are not decided and as a result whereof, the petitioner is suffering irreparable loss. The application for interim relief was also heard only after directions by this Court in Writ Petition No. 1829 of 2011 filed by the petitioner were issued.

In this view, it has been prayed that the original suit as well as the miscellaneous civil appeal arising out of it be transferred to some nearby district of Barabanki.

Learned counsel for the opposite party Nos. 4 to 8 has submitted that the instant transfer application has been moved to harass and pressurize the opposite parties and the instant application has been filed in collusion with Narendra Kumar Verma, Advocate who is the son of opposite party No. 3. It has been contended that the petitioner after joining service has throughout lived outside with his family and has never taken interest in the affairs of the family. The three brothers Ram Chandra, Prem Narain (petitioner) and Chhatrapati have separated in all respects after the death of his father and were never members of joint family. All the three brothers built property out of their own funds. The petitioner himself owns property in Lucknow. No family settlement was executed. The forged paper has been prepared by petitioner with the collusion of Narendra Kumar. Further submission is that Pramod Kumar is a junior member of executive of the Bar Association Barabanki and he is not in a position to exercise any influence over any Court. Narendra Kumar is in collusion with the petitioner. From the perusal of the record of misc. civil appeal it is reflected that the petitioner himself has been taking adjournments. Since the interim relief was granted illegally and against the facts. Therefore, a misc. appeal has been filed challenging the interim relief which is a statutory right of the opposite parties. There is no allegation against the Presiding Officer against both the Courts. The application is devoid of merits and as such is liable to be dismissed. Reliance has been placed on a judgment of Hon'ble Single Judge of this Court in Rent Control Petition No. 137 of 2011 Salamatullah v. Ram Avtar Khandewal in which it has been held that a transfer application is not to be dealt with in a light hearted manner unless and until a sufficient cogent ground is disclosed, transfer should not be allowed, as a matter of course.

From the perusal of the copy of the order sheet of misc. civil appeal it appears that petitioner appeared on 25.10.2011, adjournments were sought on behalf of the appellant also and on several dates adjournments were sought by the petitioner. It is not clear from the order sheet as to which party applied for adjournments on different dates. It is not disputed that no allegation against both the Presiding Officers have been levelled by the petitioner. Though the judgment relied upon by learned counsel for the opposite parties is of an Hon'ble Single Judge of this Court and is not binding on this Court and has a mere persuasive value but I am in agreement with the observations that the application under Section 24 C.P.C, should not be dealt in a casual or routine manner. The application for transfer where no imputations have been made against the Presiding Officers should not be allowed in a routine manner unless cogent grounds exist and it appears to the Court that grave prejudice will be caused to the petitioner in case the case is not transferred to some other Court. No unfair attitude or bias is reflected from the petition of the Presiding Officers where the two cases are pending. The transfer application cannot be allowed on the mere asking of the petitioner and it is not open for him to choose the forum himself. The allegation that a junior member of the executive of the Bar Association may influence the proceedings or some other practising lawyer may influence the proceedings without any specific instances or material appear to be bald allegations, as such the transfer application is devoid of merits and is liable to be dismissed.

Accordingly, the transfer petition is dismissed.