2nd transfer app 24 cpc in hc when first cta rejected allwd?
JASWANT VIJAY AGNIHOTRI
(Querist) 07 January 2018
This query is : Open
Respected sir
Wife again file 2nd transfer application to transfer divorce case pending in barmer to family court Jodhpur. Rajasthan High Court has raised that this 2nd appl is not maintanable u/s 11 CPC as "Resjudicata".
Wife's first appl was rejected in 2015 and now she again filed in 2018.
Next hearing is on 09/01/18.
Kindly suggest any ruiling on this issue to reject the transfer and speedy trial direction please.
Vijay Raj Mahajan
(Expert) 07 January 2018
New transfer petition may be admissible if new facts and circumstances evolved in these few years which make the petitioner to seek the transfer of the divorce case from one district court to another district court and these facts and circumstances are good enough ground to allow the transfer petition. If there exists no new facts and circumstance the second transfer petition will be dismissed on the ground of the principle of resjudicate u/s 11 CPC.
JASWANT VIJAY AGNIHOTRI
(Querist) 07 January 2018
Respected sir i have read a judgement which says that cpc 24 can be filed once either in District court or HC and the decision can not be challanged in HC if District court has rejected the same.
If circumstances changes then it should be filed in a writ format seeking transfer.
Resjudicata also applies here.
Kindly suggest.
CASE NO.:
Appeal (civil) 2786 of 2008
PETITIONER:
Jitendra Singh
RESPONDENT:
Bhanu Kumari & Ors
DATE OF JUDGMENT: 11/04/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 2786 OF 2008
(Arising out of SLP (C) No. 4120 of 2007)
Dr. ARIJIT PASAYAT, J.
JASWANT VIJAY AGNIHOTRI
(Querist) 07 January 2018
SUPREME COURT OF INDIA Page 1 of 3
CASE NO.:
Appeal (civil) 2786 of 2008
PETITIONER:
Jitendra Singh
RESPONDENT:
Bhanu Kumari & Ors
DATE OF JUDGMENT: 11/04/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 2786 OF 2008
(Arising out of SLP (C) No. 4120 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to order passed by a learned
Single Judge of the Rajasthan High Court, Jaipur Bench.
Respondent No. 1 had filed application in terms of Section 24
of the Code of Civil Procedure, 1908 (in short the ’CPC’)
seeking transfer of Civil Case No.41/202/05 titled Jitendra
Singh v. Smt. Bhanu Kumari & Ors. pending before the
District and Sessions Judge, Alwar, Rajasthan to some other
Court. By the impugned order the High Court directed that
the suit in question to be transferred from the Court of
Additional District Judge No.2 Alwar to the Court of District
Judge, Jaipur City.
3. Learned counsel for the appellant submitted that this is
yet another attempt to deny the appellant of his legitimate
entitlement. It is pointed out that in an earlier petition
(Transfer Petition (C) No.1105 of 2005 titled Maharaja Sewai
Tej Singh v. Jitender Singh & Ors.) this court declined to
accept the prayer for transfer. But keeping in view the age and
the state of health of the petitioner in that case, directed
appointment of a Guardian ad litem. It is pointed out that in
fact as has been noted by the High Court, a learned counsel
has been appointed as guardian ad litem. It is the stand of the
appellant that the reason which weighed with the High Court
to direct transfer is really of no consequence, more particularly
in view of what has been stated by this Court in the earlier
Transfer Petition.
4. Learned counsel for the respondent on the other hand
submitted that taking into consideration the serious nature of
the allegations made the High Court has rightly directed
transfer.
5. The High Court’s conclusions based on the basis of
which order of transfer has been made, read as follows:
"Having scanned the record, I noticed
that the suit was transferred by the District
Judge to the Court of Additional District Judgehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
No.2, Alwar in the month of December, 2005.
The petitioner although filed instant petition in
this Court on August 17, 2006, did not
mention this fact that the suit stood
transferred from the Court of District Judge
Alwar. The Petitioner stated in para 3 of the
petition that the respondent Jitendra Pratap
Singh is influential person and MLA of Alwar
City and he has created such a situation that
there is astrong likelihood of the matter
pending before the District Judge being
decided ex-parte against the petitioner and
other members. This apprehension of
petitioner, in my opinion, is baseless. The
Courts are not influenced by politicians and
influential persons. The petitioner should
repose full confidence upon the court of
justice. If ex-parte order was passed by the
learned District Judge and the petitioner was
aggrieved by it, she ought to have assailed it
legally. Passing of ex-parte order by the
Presiding Officer of the court cannot be a
reasonable ground for transferring the case.
But looking to the fact that on January 8,
2006 respondent Jitendra Singh lodged FIR
No. 19 of 2006 with the Police Station Kotwali
Alwar against the petitioner and respondents
Amar Raj Pal and Jaswant Singh and case
under Sections 420, 467, 468 and 471 IPC has
been registered against them and considering
the overall view of the nature of the case and
convenience of the parties and in the interest
of justice, it would be just and reasonable to
direct transfer of suit from the court of
Additional District Judge No. 2 Alwar to the
Court of District Judge, Jaipur City."
6. It appears that the High Court referred to the fact that
the criminal proceedings have been instituted against the
appellant. It is pointed out by learned counsel for the
appellant that the filing of the FIR is really of no consequence.
In respect of the plaint averments, in his reply before the High
Court to the transfer petition it was inter alia stated as follows:
"That the contents of sub para (xviii) are
not admitted in the manner stated. The
answering respondent lodged the FIR
(Annexure-9) on the facts constituting the
offences under different Sections of the Penal
Code committed by the accused persons
named therein. It is denied that the
respondent No.1 filed the FIR to exert pressure
on the petitioner and to pressurise the lawyer
seeking to represent the petitioner. The
allegations are baseless and wholly without
substance. It is humbly submitted that the
respondent No. 2 acted hand-in gloves with the
petitioner Smt. Bhanu Kumari and her brother
Yashwant Singh, got a purported power of
attorney prepared in his favour and acting
upon that the respondent No.2 negotiated for
sale of the property of respondent No. 4
Maharaja Sawai Tej Singh Ji for ahttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
consideration of Rs.77,30,328/-. The
agreement entered into on 18.4.2005 besides
being void was for inadequate consideration.
The respondent No.2 as attorney received the
part payment of the consideration in cash and
by cheque in his own name. The petitioner
and the respondent Nos. 2&3 to make
wrongful gain colluded and connived with each
other to make the respondent No.4 sign
documents or papers who was a person under
incapacity, incapable of understanding the
contents to which he was made to sign and/or
that his signature was forged. The respondent
No.2 Shri Amar Raj Lall, Advocate acted
against professional ethics and involved
himself in criminal conspiracy. True and
correct copy of the power of attorney,
agreement for sale dated 18.4.2005 and the
receipt dated 25.4.2005 are enclosed herewith
and marked as Annexure R-1/4, R-1/5 and R-
1/6 respectively. A true and correct copy of
the affidavit of respondent No.2 Amar Raj Lall,
filed in transfer petition before the Hon’ble
Apex Court is filed herewith and marked as
Annexure R-1/7."
7. Though grievance is made by the respondents that no
competent lawyer at Alwar is willing to represent them, it is of
significance to note that the suit has been filed by two
persons. Respondents 2 & 3 are represented by experienced
lawyers and they have been representing the respondents for
very long period. The parameters for exercise in Sections 24 &
25 have been laid down by this Court in several cases. Earlier
than Transfer Petition (Civil) No.1105 of 2005 was disposed of
with certain directions.
8. The reasons which weighed with the High Court to direct
transfer do not appear to be germane warranting an order of
transfer.
9. The purpose of Section 24 CPC is merely to confer on the
Court a discretionary power. A court acting under Section 24
CPC may or may not in its judicial discretion transfer a
particular case. Section 24 does not prescribe any ground for
ordering the transfer of a case. In certain cases it may be
ordered suo motu and it may be done for administrative
reasons. But when an application for transfer is made by a
party, the court is required to issue notice to the other side
and hear the party before directing transfer. To put it
differently, the Court must act judicially in ordering a transfer
on the application of a party. In the instant case the reason
which has weighed with the High Court for directing transfer
does not really make out a case for transfer.
10. Accordingly the impugned order of the High Court is set
aside.
11. Appeal is allowed.
Advocate Bhartesh goyal
(Expert) 07 January 2018
