Allowed

Ramesh Raghunath Komatwar and Anr. v. Jubedabegum Abdul Kadar Kazi Thr. Spl. P.A. Jilani Jainuddin Khatik

Bombay HC15 Apr 2013WP/5378/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging an order transferring a civil suit. The court held that the Principal District Judge must apply his mind to allegations of bias and satisfy himself prima facie before transferring the suit under Section 24 CPC, even if no elaborate reasons are given.

What did the court decide?

The impugned order of transfer is set aside; the Miscellaneous Civil Application is restored to the Principal District Judge for fresh hearing and decision within six weeks.

Ramesh Raghunath Komatwar and Anr. Vs… — Civil Procedure and Limitation | Bombay HC (2013)

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1 W.P.5378.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 5378 OF 2012

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1.Ramesh S/o Raghunath Komatwar
Age: 54 years, Occup. Agril &
Business, R/o Dharur, Tq. Dharur
District Beed

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2. Ashok S/o Limbaji Jadhav, Age 51 years, Occup. Agri., & Business, R/o Dharur,

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Tq. Dharur Dist. Beed ...PETITIONERS

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 VERSUS
Jubedabegum Abdul Kadar Kazi,
Age: 71 years, Occup. Household,
R/o Balepir Amrai Beed
Tq and Dist. Beed
Through her Special Power of
Attorney Holder,
Jilani Jinuddin Khatik
Age: 51 years, Occup. Agri.,
R/o Dharur, Tq. Dharur,
District Beed. ...RESPONDENT

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 ...
 Shri K.K. Kulkarni, Advocate for Petitioners
 Shri S.S. Thombre, Advocate for Respondent

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...

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CORAM: S.S. SHINDE, J.

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DATE : 15.04.2013

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ORAL JUDGMENT :

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1.Rule. Rule made returnable forthwith and heard
finally with consent of the parties.

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2 W.P.5378.12

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2. This writ petition takes exception to the order
dated 06.03.2013, passed by the learned Principal
District Judge, Beed, in Misc. Civil Application
No. 255 of 2011.

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3. The learned counsel appearing for petitioners
submits that defendant filed application for transfer
of the Suit bearing Regular Civil Suit No. 28 of 2011
from the Court of Civil Judge Junior Division, Dharur

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to the Courts of Civil Judge Junior Division,
Majalgaon and or Civil Judge Senior Division,
Majalgaon.

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4. The learned counsel appearing for petitioners
submits that there was no affidavit, supporting the
allegations made in the application filed by the
original defendant. He invited my attention to the
judgment of Madhyapradesh High Court in the case of
Sudarshan Jain Vs. Deep Chand Jain and others reported

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in AIR 2006 MadhyaPradesh 6 and submitted that the
application for transfer of the case on mere
allegations of bias against the Presiding Officer,
without being supported by affidavit cannot be filed.

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3 W.P.5378.12

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5.The learned counsel appearing for petitioners
invited my attention to the paragraph No. 7 of the
impugned judgment and order and submitted that the
Principal District Judge, Beed has neither assigned a
single reason nor expressed prima facie satisfaction
about the allegations in the application for transfer
of the suit from the Court of Civil Judge Junior
Division, Dharur to the Court of Civil Judge Junior
Division, Majalgaon for hearing and disposal according
to law.

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6.The learned counsel further invited my attention
to the reported judgment of the Supreme Court in the
case ofJitendra Singh Vs. Bhanu Kumari and others
reported in 2009(3) Mh.L.J. 77 and Kulwinder Kaur
alias Kulwinder Gurcharan Singh Vs. Kandi Friends
Education Trust and others reported in 2008(5) Mh.L.J.

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1 a nd submitted that the Principal District Judge ought to have expressed what reasons weighed with him for transfer of the Regular Civil Suit No. 28 of 2011

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from the Court of Civil Judge Junior Division Dharur
to the Court of Civil Judge Junior Division, Majalgaon

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for hearing and disposal according to law. Therefore,

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4 W.P.5378.12

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he submits that impugned judgment and order deserves
to set aside.

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6.On the other hand, learned counsel appearing for
original defendant/respondent herein invited my
attention to the provisions of Section 24 of the Civil
Procedure Code (Hereinafter referred to as "CPC" for
short) and submitted that the order passed by the
Principal District Judge, Beed taking recourse to
Section 24 of the CPC is administrative in nature. He
submits that the Principal District Judge, even suo-

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moto can transfer the proceeding and it is not
necessary either to issue notice or assign any
reasons. He submits that the Principal District Judge,
in order to avoid any embarrassment to the Presiding
Officer, did not give any reasons and after satisfying
himself that the applicant has lost faith in the
Presiding Officer, transferred the suit bearing
Regular Civil Suit No. 28 of 2011 from the Court of
Civil Judge Junior Division, Dharur, to the Court of
Civil Judge Junior Division, Majalgaon.

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7. The learned counsel submitted that none of the judgments cited by the learned counsel for petitioners

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5 W.P.5378.12

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is relevant and it is not expected of the Principal
District Judge to assign any reason in support of his
order for transfer of proceedings from one Court to
another Court. Therefore, he submits that this
petition is devoid of merits and same may be
dismissed.

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8.I have given careful consideration to the
submissions advanced by the learned counsel for the
parties and with the assistance of the learned counsel
for the parties, perused the provisions of Section 24
of the CPC and the grounds taken in the petition, and
the impugned order passed by the Principal District
Judge, Beed.

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9.Upon careful perusal of the impugned order, it
appears that the Principal District Judge thought it
fit not to enter into the merits of the allegations
against concerned Judge and observed that since the
applicant has lost faith in the Presiding Officer, it
is desirable that the civil suit should be transferred
from the Court of Civil Judge Junior Division, Dharur
to the Court of Civil Judge Junior Division, Majalgaon
for hearing and disposal according to law.

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6 W.P.5378.12

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10.It is true that upon careful reading of the
provisions of the Section 24 of the CPC, the Principal
District Judge suo-motu or in his administrative
capacity can transfer the proceeding from one court to
another. However, in the facts of present case, the
original defendant did file application under Section
24 of the CPC for transfer of the suit bearing Regular
Civil Suit No. 28 of 2011 from the Court of Civil
Judge Junior Division Dharur to the Court of Civil
Judge Junior Division, Majalgaon. The notice was
given to the other side and Principal District Judge
after hearing the parties, has passed the impugned
order. Therefore, in my opinion the Principal District
Judge should have applied its mind to those aspects
and prima facie satisfied as to the grounds put
forward in the transfer application and ought to have
passed the order one way or other, without entering
into the controversy in the suit.

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. The Supreme Court in the case of Kulwinder Kaur
(Cited supra), in the facts of that case, in para No.
17 of the judgment, has held that the High Court ought
to have applied its mind to those aspects and prima

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7 W.P.5378.12

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facie satisfied as to the grounds put forward by the
plaintiff in the transfer application and ought to
have passed the order one way or other, without
entering into the controversy in the suit.

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11.In the facts of present case, it appears that the
Principal District Judge has not gone into the merits
of the allegations against the concerned Judge. In my
opinion, the Principal District Judge should have gone
into the contents of the application and should have
prima facie satisfied himself that the case is made

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out for transfer. It is not necessary, that, the
Principal District Judge should have given elaborate
reasons, but requirement is that Principal District
Judge should have prima facie satisfied himself on
going through the contents of the application that the

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case is made out for transfer. In the facts and
circumstances of this case the interest of justice
would be met with, if the impugned order is set aside

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and parties are relegated before the court of
Principal District Judge, Beed for fresh adjudication
of Misc. Civil Application no. 255 of 2011, in Regular
Civil Suit No. 28 of 2011.

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8 W.P.5378.12

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12.In the light of above, the impugned order is set
aside, Misc. Civil Application No. 255 of 2011 is
restored to its original file. The Principal District
Judge, Beed to hear the said application afresh and
after hearing parties, decide the same on its own
merits within six weeks from today, keeping in view
the provisions of Section 24 of the CPC and the
judgments of the High Court and Supreme Court,
referred to herein above.

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13. It is made clear that this Court has not

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expressed any opinion on the merits of the transfer
application and the Principal District Judge shall
decide the same in accordance with law.

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14. The learned counsel for parties submitted that
plaintiffs and defendant will appear before the
District Court, Beed on 29.04.2013.

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15. The petition is allowed to above extent, and
Rule is made absolute in above terms.

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 Sd/-

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 [ S.S. SHINDE, J. ]

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MTK

Ramesh Raghunath Komatwar and Anr. v. Jubedabegum Abdul Kadar Kazi Thr. Spl. P.A. Jilani Jainuddin Khatik

Case brief

What is this about?

What did the court decide?

Ramesh Raghunath Komatwar and Anr. v. Jubedabegum Abdul Kadar Kazi Thr. Spl. P.A. Jilani Jainuddin Khatik

Case brief

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What did the court decide?

What the court decided

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