IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Misc. Transfer Application No. 12 of 2011 Ambrish Kumar S/o Sri Gokul Chandra Agrawal ….. Applicant Versus Small Cause Court/District Judge, Nainital and another ..… Respondents Mr. Sudhir Singh, Advocate for the applicant. Mr. Sudhir Kumar, Advocate for the respondents. Hon’ble Tarun Agarwala, J. The present transfer application has been filed by the tenant Ambrish Kumar for transferring S.C.C. Suit No. 5 of 2010, S.K. Gupta Vs. S. Ambrish Kumar pending in the Court of District Judge, Nainital to another Court. The suit was instituted on 22nd April, 2010. The written statement has been filed and the evidence of the plaintiff has been recorded. The tenant-opposite party had filed his affidavit in examination-in-chief and was required to appear on the 1st of April, 2011 for his cross examination and, thereafter, was also required to submit the affidavit in examination-in-chief of his remaining 17 or 18 witnesses. At that stage, on the 1st April, 2011, an application of the tenant, for adjournment for two weeks, on the ground of his personal health was allowed subject to the condition that he would lead his evidence on 5th April, 2011. This short adjournment was granted on the ground that the tenant was taking undue advantage of the process of the Court and that the ordersheet indicates that he had taken adjournments on the last ten dates from 24th November, 2010 till the 23rd March, 2011. On 5th April, 2011, an application was filed by the Advocate of the tenant to withdraw his vakalatnama which was allowed. Thereafter, the tenant himself moved an application through an unnamed advocate for adjournment which was rejected. The Court closed the evidence of the tenant and fixed 7th April, 2011 for hearing of the 2 matter. On 7th April, 2011, another application was moved by the tenant for the recall of the order of the Court dated 5th April, 2011 which was rejected and, thereafter, the matter was heard ex-parte and the judgment was reserved and the Court directed that the decision would be pronounced on 11th April, 2011. Since then, the District Judge has not delivered the decision and is fixing various dates for the delivery of the decision. In the meanwhile, the present transfer application was filed. The comments from the District Judge were sought who has sent his comments. The landlord-opposite party has also filed his counter affidavit. I have heard Shri Sudhir Singh, the learned counsel for the tenant-applicant and Shri Sudhir Kumar, the learned counsel for the landlord-opposite party and have also perused the comments of the District Judge. Serious allegations were levelled by the applicant against the opposite party and the District Judge. In paragraph 5 of the application, an allegation has been made that the landlord-opposite party is a retired Judge and has a close relationship with the District Judge and, therefore, the District Judge is biased. In paragraph 9, the tenant has alleged that he came to know about this close relationship from the advocates of the Civil Court, Nainital. These two paragraphs are sworn on information received, the source of which, has not been disclosed. In paragraph 14, further allegation was made, namely, that the opposite party was found to be sitting in the chamber of the District Judge as well as at his residence and, accordingly, the applicant-tenant has alleged that he has no hope for justice since the District Judge is close to the landlord-opposite party and that he is biased. Paragraph 14 of the application is sworn on the basis of the record, which material has not been brought on record. Consequently, such wild and reckless allegations against the District Judge cannot be taken into consideration. Such 3 allegations are unwarranted and amounts to an abuse of the process of the Court, for which, the applicant can be punished straightway without taking any further recourse but the Court will not do so for the reasons stated hereunder. In the order of 1st April, 2011, while allowing the adjournment application and fixing 5th April, 2011, the District Judge held that the applicant was taking undue adjournments and had taken adjournments when the case was listed on the last ten dates, i.e. from 24th November to 23rd March. The ordersheet has been filed and the Court has perused the orders passed by the District Judge from 24th November, 2010 to 23rd March, 2011 and finds that on 5 occasions, the applicant had not taken any adjournment and, in fact, appeared and orders on merit were passed. Admittedly, the adjournments were taken by the tenant on other dates. The Court is, therefore, constraint to observe that the District Judge was not correct in holding that the applicant was unnecessarily delaying the case and had taken adjournments on the last 10 dates. The court further finds that when the District Judge allowed the advocate to withdraw his vakalatnama, the Court should have granted time to the applicant to engage another counsel and when the application was filed alongwith the medical certificate, either the application should have been accepted in toto or should have been rejected and there could not have been a midway. Either the Court should have accepted the medical certificate in which it was indicated that the tenant required two weeks of rest or should have rejected the medical certificate but once it allows the application, the Court finds that fixing a date prior to two weeks was not justified. Not only that, on 5th April, 2011, when the applicant refused to depose, the District Judge could have closed the right of the tenant to be cross examined but could not debar or close the 4 evidence of regard to the other witnesses of the applicant. Time for that ought to have been granted. In the light of the aforesaid, even though reckless allegations have been made against the District Judge and against the opposite party No.2, the Court finds that the District Judge had taken a rigid stand. A whiff of smoke has appeared and, as the saying goes, there is no smoke without a fire. Justice is not required to be done but is also required to be seen. Without commenting anything further on the subject, the Court finds that even though 11th April was fixed for the delivery of the decision and, there was no embargo upon the District Judge to deliver the decision but the District Judge in his own discretion postponed the delivery of his decision. The Court finds it strange that the District Judge hung on to the matter and indicated his disinclination not to release the case. It may be probably that the District Judge believes that such reckless allegations would not stand in his way of discharging judicial function impartially without fear and favour which the Supreme Court has said are the hallmarks of judicial system. A judicial officer in whatever capacity he may be has to function with the belief that he would not be guided by any factor other than to ensure that he renders free and fair decision according to his conscience which is on the basis of the material placed before him. But, at the same time, there should not be any scope given to any person to go away from this feeling that the Judge has become biased as held by the Supreme Court in Satish Jaggi Vs. State of Chhattisgarh and others, (2007) 3 SCC 62. Consequently, in the larger interest of justice, the Court allows this application and transfers the case to the Addl. District & Sessions Judge/1st F.T.C., Nainital. The tenant would appear before the transferee court on 11th May, 2011 and would move an appropriate application for the recall of the order dated 5th April, 2011.If such an application is filed, the Court concerned will 5 appropriately consider and decide the same after hearing all parties concerned. In the event, the order is recalled, the Court concerned would proceed with the disposal of the case after giving an appropriate date for the cross examination of the tenant and examination-in-chief and cross examination of the witnesses of the tenant. The landlord-opposite party is a senior citizen of 71 years old and, consequently, the Court directs the Court to decide the matter within a period of three months from 11th May, 2011. It is made clear that the parties will not seek undue adjournment before the court below. Certified copy of the order shall be made available to the learned counsel for the parties on or before the 10th May, 2011. (Tarun Agarwala, J.) Dated 6th May, 2011 Shiv