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Krishan Kanahya and anr. Vs. Vijay Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous (Main) Appeal No. 171 of 1975
Judge
Reported inAIR1976Delhi184; ILR1976Delhi251
ActsCode of Civil Procedure (CPC), 1908 - Sections 24
AppellantKrishan Kanahya and anr.
RespondentVijay Kumar and ors.
Advocates: Maehswar Dayal and; Arun Kumar, Advs
Cases ReferredSergeant v. Dale
Excerpt:
.....previous case on an issue of fact arising also in the present case -- whether adequate ground for transfer.; petitioners sought a transfer of their execution case from the court of a sub-judge to that of some other judge of co-ordinate jurisdiction, for the reason that the former had in an earlier case (wherein, though, the opposite party was different from that in the present) had already found against the petitioners on a certain issue of fact relied on by them in both the cases, and that hence it would be futile for them to re-agitate the same question before the same judge. there was no allegation against him of personal interest or lack of integrity or impartiality.; as follows:-; (1) while section 24 of the code of civil procedure confers a general power of transfer on the high..........539 and sita ram rastogi v. balak ram dubey and others, . in the former case, there was an appeal. civil appeal no. 321/39-j. mt. paro v. chhaja singh etc.. pending in the court of the additional district judge, hoshiarpur at jullundur. an application was moved by mt. paro under section 24 of the code of civil procedure praying for the transfer of the said appeal to the court of the district judge hoshiarpur, alleging that one of the questions which was to be decided in that appeal was whether the petitioner had re-married and forfeired her rights to a property of her deceased husband, and that the additional district judge, hoshiarpur before whom the appeal was pending had already held in an earlier case. civil appeal no. 232 of 1933, mt. paro v. chuha, that the petitioner was married.....
Judgment:

T.V.R. Tatachari, J.

(1) This application has been filed under Section 24 of the Code of Civil Procedure for the transfer of Execution Case No. 166 of 1971, Radhey Sham v. M/s. Badri Dass Radhey Lal pending in the Court of Shri S. M. Aggarwal, Commercial Sub-Judge, Delhi to the Court of some other Subordinate Judge of coordinate jurisdiction. The petitioners are Shri Krishan Kanahya and Shri Vijay Kumar, minor sons of Shri Ramesh Chand, through their mother and next friend, Shrimati Shakuntala Devi. The respondents are (1) Shri Vijay Kumar, (2) Shri Balkishan, and (3) M/s. Badri Dass Radhey Lal to be served through Shri Ramesh Chand, father of the two minor petitioners, and proprietor of M/s. Badri Dass Radhey Lal.

(2) It appears that Shri Radhey Sham, father of respondents 1 and 2, obtained a decree against respondent 3, and in execution thereof sought to attach certain properties as belonging to the judgment-debtor. The petitioners filed objections under Order 21 Rule 58 of the Code of Civil Procedure on the ground that the property sought to be attached by the decree-holder could not be attached as the said properties belonged to the objectors on the basis of a will, dated December 26, 1961, alleged to have been executed by their grand-father, Shri Radhey Lal (since deceased), in their favor.

(3) It is stated in the petition that similar objections had been filed by the two petitioners in another case Madan Lal v. Badri Dass Radhey Lal, Execution Case No. 11 of 1970, in the court of Shri S. M. Aggarwal, Subordinate Judge (since transferred to the Court of Shri P. R. Thakur, Subordinate Judge) prior to the present posting of Shri S. M. Aggarwal as Commercial Sub Judge, Delhi, that the said objections were dismissed by Shri S. M. Aggarwal on October 26, 1973, holding that the will relied upon by the petitioners was not genuine and the petitioners were not, thereforee, the owners of the properties in dispute, and that the petitioners filed a separate suit under Order 21 Rule 63 of the Code of Civil Procedure for setting aside the said order of Shri S. M. Aggarwal, dated October 26, 1973. The petitioners submitted in the petition that it would be completely futile for the petitioners to rely upon the same will before the same Subordinate Judge, Shri S. M. Aggarwal, in the proceedings now pending before him as he had already given his opinion with regard to the genuineness of the said will, and that his decision in the present execution case would unnecessarily drive the petitioners to another suit under Order 21 Rule 63 of the Code of Civil Procedure without giving them a fair opportunity to establish their case in the execution case under Order 21 Rule 59 of the Code of Civil Procedure itself. The petitioners stated that for that reason they filed an application in the Court of the District Judge, Delhi, under section 24 of the Code of Civil Procedure, praying for the transfer of the Execution Case No. 166 of 1971 from the Court of Shri S. M. Aggarwal to the Court of some other Subordinate Judge of co-ordinate jurisdiction, that the learned District Judge dismissed the said application on May 5, 1975, holding that the ground of transfer given in the application was not sufficient for directing the transfer prayed for, and that in the circumstances they have filed the present petition in this Court for the same relief.

(4) Shri Maheshwar Dayal, learned counsel for the petitioners, contended before me that Shri S. M. Aggarwal, who had held in the previous case, Execution Case No. 11 of 1970, that the will relied upon by the petitioner was not genuine, cannot be expected to take a different view in the present execution case No. 191 of 1970 pending before him, that the petitioners are apprehensive that Shri Aggarwal would in all likelihood take the same view in which case, the petitioners would be unnecessarily driven to another suit under Order 21 Rule 63 of the Code of Civil Procedure without a fair opportunity to establish their case in the execution court itself under Order 21 Rule 63 of the Code of Civil Procedure, and that the circumstance that Shri S. M. Aggarwal had already formed a view regarding the genuineness of the will and expressed the same in the earlier execution case is sufficient ground for transferring the case to the Court of unother Subordinate Judge under Section 24 of the Code of Civil Procedure. The learned counsel relied upon the decisions in Mt. Paro v. Chhaja Singh and another, Air 1934 Lah 539 and Sita Ram Rastogi v. Balak Ram Dubey and others, . In the former case, there was an appeal. Civil Appeal No. 321/39-J. Mt. Paro v. Chhaja Singh etc.. pending in the Court of the Additional District Judge, Hoshiarpur at Jullundur. An application was moved by Mt. Paro under Section 24 of the Code of Civil Procedure praying for the transfer of the said appeal to the Court of the District judge Hoshiarpur, alleging that one of the questions which was to be decided in that appeal was whether the petitioner had re-married and forfeired her rights to a property of her deceased husband, and that the Additional District Judge, Hoshiarpur before whom the appeal was pending had already held in an earlier case. Civil Appeal No. 232 of 1933, Mt. Paro v. Chuha, that the petitioner was married to Chuha in the Chaddar Andazi form. Abdul Rashid, J. allowed the aplication and transferred the appeal. Civil Appeal No. 321/39-J.. to the Court of the District Judge, Hoshiarpur, as prayed for observing as under :

'AS the learned Additional District Judge Hoshiarpur at Jullundur has already expressed an opinion when deciding Civil Appeal No. 232 of 1933 that Mt. Paro was married to Chuha in the Chaddar Andazi form, and as this is one of the questions that will have to be decided in the appeal, which forms the subject matter of the present application, it is desirable, in the interests of justice, that the present appeal should be heard and decided by another Court.'

(5) In the second case, the District Judge, Fyzabad, admitted certain additional documentary evidence under Order 41 Rule 27 of the Code of Civil Procedure in an appeal pending before him and decided the appeal on the basis of the entire evidence including the additional evidence admitted by him. On an appeal to the High Court against this decision, the decree of the District Judge was set aside and the case was remanded to him with directions to re-hear the appeal after strictly complying with the provisions of Order 41 Rule 27 of the Code of Civil Procedure. When the matter came up before the District Judge after the remand, the opposite party did not insist upon the additional evidence being admitted and withdrew the same from consideration. The District Judge had thus to hear the appeal only on the evidence in the case excludung the additional documentary evidence. The party moved an application before him staling that he should not hear the appeal on the ground A that when he previously decided the appeal, he had. expressed his opinion on the evidence already on the record. The District Judge passed an order in which he observed that there was no doubt that his judgment contained findings of fact based on evidence which was independent on the additional evidence that had since been exclud.ed, and that the applicant could very well feel that he was at a disadvantage. He accordingly allowed the party to move the High Court to transfer the appeal to some other District Judge. On a motion before the High Court Srivastava and Nanavutty JJ. held that under the circumstance the applicant might well have a reasonable apprehension that it would not be possible for the District Judge to approach the decision of the case with an open mind and that it would be embarrassing for him to arrive at a finding contrary to the one already arrived at by him, and that they were, thereforee, of the opinion that it was a proper case in which they would exercise their general power of transfer.

(6) Section 24 of the Code of Civil Procedure, no doubt, confers a general power of transfer on the High Court. But, the High Court has a discretion in the matter and has to exercise the power taking into consideration the facts and circumstances of the particular case belore it. The ground on which the petitioners before me have asked for the transfer is that Shri S. M. Aggarwal. Subordinate Judge had previously expressed his opinion about the genuineness of the will in an earlier execution case and, thereforee, the petitioner is apprehensive that Shri Aggarwal would not be able to take a different view in the present execution case before him. So stated, the ground appears to be impressive. But, can it be said as a general proposition that a Judge who expressed a view on a question of fact on the basis of the evidence before him in a particular case, would not be able to or in all likelihood might not take a different view on the same question raised in a subsequent case? In my opinion, such a proposition cannot be laid down in a general manner. As already stated, the transfer of a case under Section 24 has to depend upon the facts and circumstances in the case before the High Court. In the present case, the decreeholders are different in the two execution cases. In the earlier execution case No. 11 of 1970, certain objection was raised by the petitioners and the same was rejected by the learned Subordinate Judge on October 26, 1973. The objectors preferred a revision. Civil Revision No. 77 of 1974, to this Court and the same was dismissed on February 4, 1974. Thereafter, when another decree-holder has now sought to attach the properties of the judgment-debtor, the same objectors have again raised the same objection, namely, that the properties sought to be attached did not belong to the judgment-debtor but belonged to them under a will alleged to have been executed in their favor by their grand-father. It is in that situation that the petitioners are now seeking for a transfer of the case to the Court of another Subordinate Judge so that they can canvass the question again. Considering the matter entirely with reference to the prayer for a transfer of the case, it cannot be overlooked that the petitioners are seeking to re-agitate the same question of fact once again before another Subordinate Judge. The question for consideration is whether there is sufficient ground for granting the prayer. It is common ground before me that the petitioner had adduced all the relevant evidence regarding the question of genuineness of the will before the Subordinate Judge on the previous occasion in Execution Case No. 11 of 1970. If they have only the same evidence to adduce in the present Execution Case No. 166 of 1971 and they are able to advance better arguments based on that evidence than on the previous occasion, it would be unfair to the Subordinate Judge to say that he would not consider the matter afresh in the light of the new arguments as a judicial officer should do and, even if convinced, would hesitate to come to a different view. On the other hand, if the petitioners have some further and new evidence to adduce in the present execution case, then again it cannot be said that the learned Subordinate Judge 'would hesitate to come to a different view regarding the genuineness of the will if the said further evidence provides material for taking such a different view. It cannot, thereforee, be said that merely because the Subordinate Judge had expressed a view on the question of fact under consideration in an earlier case, and the same parties seek to raise the same question in a subsequent case, the case should be directed to be heard by a different Subordinate Judge. A similar view was expressed in the following decisions.

(7) In Narain Devi v. Shankar Dass and others, Air 1926 Lah 345, Zafar Ali J. held that 'expressing an opinion in a previous case by Court on certain points involved in the case before it, is not a ground for the transfer of the case to another Court'. In Summun and others v. Jawahir Singh and others, A.I.R.- 1930 Lah 176, Shadi Lal, C.J following an earlier decision of Martineau J. in Jai Narain Babu Lal v. Johri Mal Chunna Mal, Air 1921 Lah 357, observed that 'the fact that a Judge has decided a point of law arising in one case is not a good ground for transferring from his Court another case involving the same point'. In Mt. Natha Bai v. Baijnath Kunjilal and others, I.LR. 1938 Nag 126, Pollock J. following the view of Shadi Lal C.J observed as follows :

'THE mere fact that the Judge has decided a particular point of law in a previous case is no reason for a transfer in a subsequent case involving the same point; otherwise a Judge would eventually become unfit to decide most cases. If the question is one partly or wholly of fact, still less docs there seem to be any reason for a transfer because the decision will depend upon the evidence in the particular case.'

(8) In Mohd. Asraf and others v. Buta Mal and others, A.I.R. 1944 Lah 400, Blacker J. pointed out that in the cases decided by Shadi Lal C.J. and Martineau J. some stress seemed to be laid on the fact that the finding was one of law, and that 'the point whether a previous finding on a question of fact, which is not rest judicata is a ground for transfer seems more difficult, and the available authorities are not unani- mous.' The learned Judge then referred to the decision of Zafar Ali J. as well as the decision of Abdul Rashid J., and observed as follows : 'In view of the conflict of authority I had thought of referring this case to a larger Bench; but, on consideration. I do not think it is a fit case for reference, as no question of law is involved, only of discretion, and I do not see how a larger Bench could lay down any principle, on which a Judge should use his discretion in every case of this nature. One thing, however, seems to me to be clear and that is that a transfer should not be ordered for reasons of sentimentality, but only if good grounds are made out for it. This is not a casc to which the principles of Sergeant v. Dale, (1877) 2 Q.B.D. 558, arc applicable. There is no question of personal interest in the Judge, and indeed no question of any lack of integrity or impartiality. In fact, I find it extremely difficult to think that the Court of appeal would have quashed the proceedings a previous case decided an identical point in an identical manner. The question really seems to me to be whether a litigant is entitled to use the law as a sort of 'lucky dip.'

(9) In this case there was no appeal against the previous decision, and it thereforee became final in that case. It is, however, not rest judicata in this case. I agree with Zafar Ali J. that there is no reason for supposing that in a case like this the Judge will not decide the case A on the material before him. If that material is different from that in the previous case there is nothing either in theory or in practice, as far as my experience goes, to bar a different finding. If the material is identical, then there will not only be an identical finding, but there ought to be, and if it is wrong it can be corrected by an appeal to a superior Court. That is legitimate and envisaged by the law; what does not appear to me to be envisaged by the law is the use of S. 24, Civil P. C., to give an indirect sort of anticipatory appeal, not to a superior Court but to a Court of equal jurisdiction.

(10) I would, in fact, go further and hold that even if there were no appeal, it would make no real difference. The policy of the law in such a case is that of finality, and the petitioner would be in the same position in the eyes of the law as if both the cases were to be heard by the highest Court of appeal in the land.

(11) On the other hand, it seems to me to be mere sentimentality to hold that the petitioner should be given an opportunity to 'try his luck' in another Court, on the ground that he might find some difficulty in persuading the Judge that his previous decision was E wrong.

(12) I respectfully agreed with the views expressed by Biacker J. Mr. Maheshwar Dayal frankly stated before me that this client does not say that there is any personal interest or Jack of integrity or impartiality on the part of the learned Subordinate Judge. Mr. S. M. Aggarwal. In the circumstances, I agree with the view of the learned District Judge that there is no ground for directing the transfer prayed for. The application, C.M.(M) 171 of 1975 is, thereforee, dismissed.


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