CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) Date of decision: 29.9.2011 Narender Kumar Sharma ....Applicant Versus Raj Kumar Jain ...Respondent CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Maharaj Kumar, Advocate for the applicant. Mr.Amit Jain, Advocate for the respondent ***** Jitendra Chauhan, J.(Oral) CM No.23628-CII of 2011 Application for placing on record reply filed on behalf of respondent, is allowed as prayed for. TA No. 500 of 2011 1. This transfer application has been moved by the petitioner wherein he has prayed for the transfer of Rent Petition (eviction proceedings) pending before the ld. Rent Controller, Gurgaon to any other court of competent jurisdiction outside the territorial limits of district Gurgaon, preferably Rewari, on the basis of the facts disclosed in the transfer petition/ application. CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) -2- 2. The Petitioner contends that the Respondents are an influential family, being 3rd generation lawyers and having practiced throughout in Gurgaon, wield considerable influence in the legal circles of Gurgaon district. As a result of their influence, no lawyer is ready to pursue their matter before the ld. Rent Controller, Gurgaon and as such, they are practically being denied the Right to Fair Trial. The ld. Counsel for the Petitioner has made the categorical statement at the Bar that no lawyer is ready to take up their case and has buttressed his submission by stating that the lawyer, who was initially engaged by the Petitioner, has also returned the brief as well as the professional fee expressing his inability to appear for the petitioner. As a supplemental argument, the Petitioner has also cast aspersions on the ld. Rent Controller, though in veiled terms, by contending that very short dates/ adjournments are being granted during the course of hearing of the case which is an indication of the predisposition of the court towards the Respondent. 3. In response to the transfer application, the Respondent has filed a detailed reply, contending vehemently that the sole reason for seeking the transfer of the proceedings out of Gurgaon is to delay the outcome of the eviction proceedings. The Respondent has refuted the allegations leveled by the Petitioner that no lawyer is ready to take up their case due to the influence of the Respondent family. Interestingly, the Respondent has also submitted that the lawyer of the Petitioner, who has since withdrawn himself, is a close relative of the Petitioner himself (being his wife’s real uncle) and has been appearing for over a year i.e. from 22.7.2010 till CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) -3- 3.9.2011. The Respondent has further submitted that the report of the Local Commissioner has recently come on record which adversely affects the case of the Petitioner (Respondent/Defendant before the Rent Controller, Gurgaon) and that actually is the real motive for moving the present transfer application so as to delay the entire case proceedings. 4. I have given my thoughtful consideration to the rival contentions. 5. The Petitioner has in plain terms sought the transfer of eviction proceedings on the ground that he is being denied the right of fair trial in as much as his earlier counsel has withdrawn himself and no other counsel is ready to take up the matter which is due to the influence wielded by the family of the Respondent, being an old lawyers’ family, based in Gurgaon since long. In support of his prayer, the ld. Counsel for the Petitioner has paced reliance on Kulwinder Kaur alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and others (2008) 3 Supreme Court Cases 659, and Dr.Subramaniam Swami vs. Ramakrishna Hegde (1990) 1 Supreme Court Cases 4,. 6. Although the Respondent has denied the allegation of misuse of personal influence so as to deprive the Petitioner of assistance of a lawyer, it is clear that the Petitioner is without any legal representation at present before the ld. Rent Controller, Gurgaon. The very fact that the Petitioner’s close relative has suddenly withdrawn himself from the proceedings and has even refunded his counsel fee, shows that some external influence has worked on his mind. This fact, coupled with assertion at the Bar of the ld. CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) -4- counsel for the Petitioner that no lawyer is now ready to take up their case, has to be viewed seriously in as much as it is a direct violation of his right to fair trial. Though the Respondent is in denial mode but apart from denying the allegations of the Petitioner, no concrete rebuttal has been put forth by him. Infact, the fact of close relationship between the Petitioner with his earlier counsel (i.e. Sh. Satyaveer Sharma) has been brought to the notice of the Court by the Respondent himself, which, infact, substantiates the claim of the Petitioner, as has already been discussed above. 7. The submission that the present application has been filed on the advice of the learned counsel who deliberately withdrew from the case is a clear effort to malign the member of the bar who has not been impleaded as a party. The same is deplorable. 8. The contention of the Respondent that the present transfer application has been moved primarily because the Local Commissioner’s report has come on record which supports the case of the Respondent i.e. in the present transfer application, is not of any help to him. The Report, once having come on record, is now a part of the case proceedings and whether or not the case proceeds in Gurgaon, it will always have a strong factual effect on the merits of the case, whether in favour of the Petitioner or the Respondent. 9. In view of the foregoing discussion, the present application is allowed and the case no. …. pending before the Rent Controller, Gurgaon is transferred to the court of competent jurisdiction at Rewari. In order to allay the fears of the Respondent regarding the delay in proceedings, the CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) -5- competent court at Rewari is directed to dispose the case. 10. The landlord-respondent is stated to be a man of ripped age, the learned Rent Controller, shall make an endeavour to decide the matter expeditiously. 29.09.2011 (JITENDRA CHAUHAN) gsv JUDGE Note: Whether to be referred to the Reporter? Yes/No. CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) -6- The present application has been filed by the applicant under Section 24 read with Section 151 of the Code of Civil Procedure seeking transfer of the petition titled as 'Raj Kumar Jain vs. Narender Kumar' filed by the respondent under Section 13 of ht Haryana Urban Control of Rent and Eviction Act, 1973 (for short 'the Act') from the court of learned Rent Controller, Gurgaon to some other competent court of jurisdiction at Rewari. Learned counsel for the applicant contends that the applicant is a small shop keeper, running a photography shop in the disputed premises. The applicant engaged one Sh.Satyaveer Sharma, Advocate for representing him before the Rent Controller, but at the crucial stage of cross- examination, he withdrew his power of attorney and refused to appear for the applicant purportedly on account of influence exercised by the respondent, whose three generations are lawyers. Learned counsel further contends that he has never made any effort to delay the proceedings. The only grouse raised by him is not getting a legal assistance on account of influence exercised by the respondent in the bar. He refers to Dr.Subramaniam Swami vs. Ramakrishna Hegde (1990) 1 Supreme Court Cases 4, wherein the Hon'ble Supreme Court has observed as under: “The paramount consideration for transfer of the case under Section 25 of the CPC must be the requirement of justice. The mere convenience of the parties or any one of them may not be enough for the exercise of power but CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) -7- it must also be shown that trial in the chosen forum will result in denial of justice. If the ends of justice so demand and the transfer of the case is imperative, there should be no hesitation to transfer the case. The right of dominus litis to choose the forum and considerations of plaintiff's convenience, etc. cannot eclipse the requirement of justice. Justice must be done at all costs, if necessary by the transfer of the case from one court to another.” On the other hand, learned counsel for the respondent contends that the applicant is trying to abuse the process of the court and it was his own suggestion, the learned counsel Mr.Satyaveer Sharma, Advocate, withdrew his power of attorney and therefore, the present application has been filed. He further contends that the Mr.Satyaveer Sharma, Advocate is relative of the petitioner being real Fufa of the wife of the petitioner. He relies upon Kulwinder Kaur alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and others (2008) 3 Supreme Court Cases 659, the cardinal principle of law is that justice should not be done it must appear to be done. I have heard learned counsel for the parties and have gone through the case file carefully. From perusal of the record, it is made out that there is nothing on record to disbelieve the statement of learned counsel for the applicant. CM No. 236218-CII of 2011 in/and TA No.500 of 2011 (O&M) -8- Though there being a member of bar is not a disqualification but at the same time, the member of the bar cannot be allowed to have advantage if the other party is not that well equipped. This Court is unable to accept the suggestion put-forth that there was the counsel being the relative of the applicant and it was his own suggestion made by him, Sh.Satyaveer Sharma, Advocate, withdrew his power attorney before the Rent Controller deliberately. The justice delivery system must cite with the party, which is ill equipped. Keeping in view of the above, the present application is allowed and the petition under Section 13 of the Act titled as 'Raj Kumar Jain vs. Narender Kumar’ is withdrawn from the Court of learned Rent Controller, Gurgaon, and is transferred to the Court of competent jurisdiction at Rewari. The entire record pertaining to the said petition shall be sent by the trial Court at Gurgaon, to the learned District Judge, Rewari, within three weeks, who will either himself dispose it of or entrust it to any other Court of competent jurisdiction at Rewari. The parties through their respective counsel shall appear before the learned District Judge, Rewari, on 29.10.2011 at 10 AM.