SCA/23340/2006 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23340 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= VADODARA MUNICIPAL CORPORATIONTHRO. MUNICIPAL COMMISSIONER - Petitioner(s) Versus MANJULABEN BACHUBHAI PATEL - Respondent(s) ========================================================= Appearance : MR GM JOSHI for Petitioner(s) : 1, MRS KRISHNA G RAWAL for Respondent(s) : 1, MR BS NILAK for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 03/12/2008 ORAL JUDGMENT 1. Rule. Ms.Krishna Rawal, learned Advocate waives service of rule on behalf of the respondent. With the consent of learned Advocates for the respective parties, the petition is taken up for final hearing today. SCA/23340/2006 2/7 JUDGMENT 2. By way of this petition under Article 226 of the Constitution of India the petitioner has prayed for an appropriate Writ, direction and/or order quashing and setting aside impugned order dated 19.06.2002 passed below Exh.1 in Transfer Application No.133 of 2006 and further to direct learned District Judge taking up Civil Misc.Appeal No.146 of 2005 to hear the same in accordance with law. 3. Respondent herein – original plaintiff had instituted Regular Civil Suit No.431 of 2005 seeking declaration and injunction restraining the petitioner – Corporation from demolishing or removing any part of the property in the alleged possession with the respondent. In the said suit respondent submitted application Exh.5 for interim injunction and the learned trial Court rejected the said application holding that the respondent was not in possession of the property at any time either before or after the acquisition of the lane for the purpose of road widening. Being aggrieved and dissatisfied with the order passed below Exh.5, the respondent – preferred Civil Misc.Appeal No.146 of 2005 before the District Court which came to be heard by learned Judge- Mr.P.M.Atodaria. It is the case on behalf of the petitioner – Corporation that under the guise of obtaining order of status quo on application for interim injunction in the said appeal, respondent tried to create evidence of her possession and on that basis the respondent alleged that the Corporation has committed contempt of Court and she SCA/23340/2006 3/7 JUDGMENT insisted that the application for contempt be heard first. It is the case on behalf of the petitioner that when the learned Judge did not succumb to the pressure exercised by the respondent to hear the application for Contempt first, she preferred application being Transfer Application No.133 of 2006 seeking transfer of the proceedings from the learned Judge Mr.Atodaria to another District Judge. It appears that said application was submitted under Section 24 of the CPC. Said application was numbered as Transfer Application No.133 of 2006 which came to be considered by the learned Principal District Judge, Vadodara. The learned Principal District Judge, Vadodara disposed of the said transfer application No.133 of 2006 by observing that no injustice has been done to the respondent. However, while disposing of the said transfer application, learned Principal District Judge, Vadodara directed Mr.Atodaria – learned Judge to dispose of contempt petition first before disposing of the main appeal and all other applications. Being aggrieved and dissatisfied with the impugned order dated 19.06.2006 passed by the learned Principal District Judge, Vadodara below Exh.1 in Transfer Application No.133 of 2006 in so far as directing Mr.Atodaria – learned Judge to dispose of contempt petition first before disposing of the main appeal and all other applications, the petitioner – Corporation has preferred present Special Civil Application under Article 227 of the Constitution of India. SCA/23340/2006 4/7 JUDGMENT 4. Mr.G.M.Joshi, learned Advocate for the petitioner Corporation has vehemently submitted that the impugned order and direction issued by the learned Principal District Judge, Vadodara directing the learned Judge to dispose of contempt petition first before disposing of the main appeal and all other applications is absolutely illegal and without jurisdiction. It is submitted that in application for transfer of proceedings submitted under Section 24 of the CPC, the learned Principal District Judge has no jurisdiction to issue any other directing like issued while disposing of transfer application. It is submitted that when the learned Principal District Judge, Vadodara has specifically observed that no injustice has been done to the respondent, in that case, the learned Principal District Judge, Vadodara was required to dismiss transfer application without any further direction. It is submitted that further direction issued by the learned Principal District Judge, Vadodara while disposing of the transfer application is absolutely without jurisdiction and beyond the scope of transfer application. Therefore, it is requested to allow present Special Civil Application and quash and set aside the impugned order passed by the learned Principal District Judge, Vadodara passed below Exh.1 in Transfer Application No.133 of 2006 in so far as issuing direction to the learned Judge to dispose of contempt petition first before disposing of the main appeal and all other applications. SCA/23340/2006 5/7 JUDGMENT 5. Ms.Rawal, learned Advocate for the respondent is not in a position to support the impugned order passed by the learned Principal District Judge, Vadodara and direction issued by the learned Principal District Judge, Vadodara while disposing of aforesaid Transfer Application. However, it is submitted that in the facts and circumstances of the case the learned Principal District Judge, Vadadora was justified in directing learned Judge to dispose of contempt petition first before disposing of the main appeal and all other applications. Therefore, it is requested to dismiss present Special Civil Application. 6. Heard the learned Advocates appearing for the respective parties. 7. At the outset it is to be noted that what was pending before the learned Principal District Judge, Vadodara was transfer application submitted by the respondent to transfer Civil Misc.Appeal No.146 of 2005 from the Court of Mr.Atodaria – learned Judge and there was no other prayer. Said application was numbered as Transfer Application No.133 of 2006. Therefore, what was required to be considered by the learned Principal District Judge, Vadodara was whether appeal pending before the Mr.Atodaria – learned Judge was required to be transferred or not. Said application came to be considered by the learned Principal District Judge, Vadodara and disposed by the learned Principal District Judge, Vadodara by SCA/23340/2006 6/7 JUDGMENT holding that no injustice has been done to the respondent – applicant who has sought transfer. However, while disposing of the said transfer application, learned Principal District Judge, Vadodara directed Mr.Atodaria, learned Judge to dispose of contempt petition first before disposing of the main appeal and all other applications. Such a direction in the transfer proceedings is without jurisdiction and beyond the scope of even transfer application. This Court is at present not examining whether such transfer application submitted by the respondent under Section 24 before the learned Principal District Judge, Vadodara to transfer proceedings from one Court to other Court was maintainable or not. The question which is required to be considered by this Court is whether the learned Principal District Judge, Vadodara was justified in issuing such a direction directing the learned Judge to dispose of contempt petition first before disposing of the main appeal and all other applications in transfer application. As stated above, such a direction issued by the learned Principal District Judge, Vadodara in transfer application is without jurisdiction and even beyond the prayer made in the transfer application, which cannot be sustained and which deserves to be quashed and set aside. 8. For the reasons stated above, the petition succeeds. The impugned order dated 19.06.2006 passed by the learned Principal District Judge, Vadodara SCA/23340/2006 7/7 JUDGMENT below Exh.1 in Transfer Application No.133 of 2006 in so far as directing the learned Judge to dispose of contempt petition first before disposing of the main appeal and all other applications is hereby quashed and set aside. The learned Judge is directed to decide and dispose of the appeal on merits (if not decided so far) at the earliest. Rule is made absolute accordingly. No order as to costs. [M.R.Shah,J.] satish