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CASE NO.: Appeal (civil)  338 of 2008

PETITIONER: KULWINDER KAUR @ KULWINDER GURCHARAN SINGH

RESPONDENT: KANDI FRIENDS EDUCATION TRUST AND OTHERS

DATE OF JUDGMENT: 11/01/2008

BENCH: C.K. THAKKER & MARKANDEY KATJU

JUDGMENT: J U D G M E N T

@ SPECIAL LEAVE PETITION (CIVIL) NO. 21147 OF 2006

C.K. THAKKER, J.

1.              Leave granted. 2.              This appeal is directed against the  judgment and order dated November 17, 2006 in  Civil Miscellaneous No. 22108 CII of 2006.  By  the said order, the High Court of Punjab &  Haryana transferred Civil Suit No. 506 of 2003  from the Court of Smt. Asha Kondal, Civil Judge  (Sr. Dvn.), Ropar to the Court of Sh. Y.S.  Rathore, Additional Civil Judge (Sr. Dvn.),  Chandigarh. 3.              Short facts giving rise to present  appeal are that Kandi Friends Educational Trust  (\023Trust\024 for short) was set up for establishing  professional educational institutions with  prominent educationists and industrialists of  the State of Punjab on September 24, 1997. It  is the case of the appellant that Gurcharan  Singh, her husband was the Founder Chairman of  the Trust whereas the appellant was a Trustee  along with the Founder Chairman. In 1998,  certain new trustees were inducted including  one B.S. Randhawa. In September, 2002,  elections were held and Gurcharan Singh was  again elected as the Chairman of the Trust.  B.S. Randhawa and his wife Hardev Kaur raised  protest against the said election.  In  December, 2002, Gurcharan Singh, Chairman of  the Trust sought certain amendments in the  Constitution of the Trust which were approved  by majority though B.S. Randhawa and Hardev  Kaur opposed to such amendments. On June 21,  2003, Gurcharan Singh, Chairman of the Trust  was murdered while he was taking stroll in a  park along with the appellant. B.S. Randhawa,  who was one of the Trustees, was arrested as  the main accused and was charged for committing  murder of Gurcharan Singh.  F.I.R. No. 271 of  2003 was registered on the same day at Mohali  Police Station.  In view of death of Gurcharan  Singh, election of the Chairman was again held  on July 23, 2003 and the appellant was  unanimously elected as the Chairperson.  Ms.

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Japneet Kaur was nominated as trustee being  daughter of late Gurcharan Singh and she also  started attending meetings of the Trust. B.S.  Randhawa and Hardev Kaur were obviously unhappy  with the development. Hardev Kaur, hence, filed  a suit on July 25, 2003 for a declaration that  all proceedings conducted by the defendants in  the Meeting dated July 23, 2003 in which the  appellant was elected as the Chairperson were  illegal, null and void and liable to be set  aside. Certain other reliefs were also claimed.   In the suit, the appellant herein was impleaded  as defendant No. 4.  Along with the plaint, the  plaintiffs filed an application under Order  XXXIX, Rules 1 and 2 of the Code of Civil  Procedure, 1908 (hereinafter referred to as  \023the Code\024) for interim relief, but only  limited interim relief was granted and the  plaintiff Smt. Hardev Kaur was allowed to  attend meetings of the Trust. Other interim  reliefs were expressly refused.  Having failed  to get relief sought in interim application,  Hardev Kaur and B.S. Randhawa filed another  suit, i.e. the present suit in October, 2003 in  the name of Kandi Friends Education Trust  through its so-called General Secretary Jaspal  Singh. Though the appellant was duly elected as  Chairperson of the Trust, she was wrongly  described as Trustee and it was stated by the  plaintiff that they were in-charge and in  management of the Trust. A declaration was  sought that the resolution dated October 14,  2003 adopted by the defendants was illegal,  null and void.  Consequential reliefs were also  prayed. 4.              On June 4, 2005, one more suit was  filed by Jaspal Singh for declaration and  permanent injunction against the appellant. In  interim injunction, only status quo was ordered  to be maintained by the Court. Jaspal Singh  also filed a transfer application No. 14 of  2006 in the District Court, Ropar for transfer  of suit from the Court of Smt. Asha Kondal to  the Court of Shri A.S. Garewal, which was,  however, dismissed as withdrawn. 5.              On November 2, 2006, the Trust filed  an application under Section 24 of the Code in  the High Court of Punjab & Haryana being Civil  Miscellaneous No. 22108 CII of 2006 for  transfer of Suit No. 506 of 2003 pending in the  Court of Smt. Asha Kondal, Sub-Judge, (Sr.  Dvn.), Ropar \023to any other Court of competent  jurisdiction in Chandigarh or in the State of  Haryana\024 in view of \023peculiar facts and  circumstances of the case in the interest of  justice\024. It was inter alia alleged in the  Transfer Application that though the suit was  instituted in 2003 seeking injunction against  the defendant-appellant herein and others, it  was pending even in November, 2006.  More than  three years had passed and yet there was no  \021much progress\022 in the case.  It was further  alleged that there was lot of local pressure  which had led to delay and it had given  advantage to the defendants as they were in

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power and were trying to protract the  proceedings. It was asserted that the  Institution was one of the most prestigious  institutions in the area and lots of funds were  generated as there were several students.   Hence, the Committee members who were in office  were trying their level best to stall the  proceedings by using various tactics.  It was  also stated that though the term of the  appellant expired on August 31, 2005, she  continued to be in power simply because no case  filed against her was decided either way.  A  prayer was, therefore, made to transfer the  case. 6.              The appellant herein filed detailed  reply to the application contending that false  and scandalous allegations have been levelled  by the plaintiff against the defendants which  were not correct.  It was submitted that suit  filed by the plaintiff was not maintainable as  there was no proper resolution and no authority  had been given by the appellant-Chairperson to  file such suit.  It was further stated that no  one could have a court of one\022s own choice and  on the facts and in the circumstances, no case  was made out for transfer of suit. It was  stated that Zimni orders clearly revealed that  there was no delay on the part of the  defendants. The delay was largely attributable  to the plaintiff-trust. 7.              In this connection, it was stated in  the reply as under;         Date of filing  :       11.11.2003         Issues framed   :       24.12.2003         For PWs.                        :       30.3.2004         No PWs. Produced        :       Till date 29.11.2006 It was, therefore, submitted that the  application was devoid of merit, laced with  malice and was liable to be dismissed. 8.              The learned Single Judge of the High  Court observed that it was alleged by the  plaintiff that though the suit was filed in  2003, there was \021no substantive progress\022 in  the suit.  The learned Judge no doubt observed  that certain allegations levelled by the  plaintiff had been controverted and counter- allegations had been made by the defendants.  But without going into the allegations and  counter-allegations, it would be appropriate to  transfer the suit to Chandigarh.  Accordingly,  by the impugned order, the suit was transferred  and a direction was issued to decide the matter  expeditiously by giving two opportunities to  each of the parties spread over a period of six  months. 9.              The aforesaid order is challenged by  the appellant in the present appeal.  On  January 5, 2007, notice was issued by this  Court and further proceedings in the suit were  stayed.  Counter affidavit was thereafter  filed.  The matter then was ordered to be  posted for final hearing. 10.             We have heard the learned counsel for  the parties. 11.             The learned counsel for the appellant

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contended that the High Court committed an  error of law and of jurisdiction in  transferring the case from Ropar to Chandigarh.   It was submitted that no reasons/grounds have  been disclosed for taking such action of  transferring the suit.  The counsel submitted  that all the allegations levelled by the  plaintiff had been controverted by the  defendants and even the learned Judge of the  High Court had observed in the order that there  were allegations and counter-allegations by the  parties. In spite of such situation, the Court  passed the impugned order of transfer which is  not in consonance with law.  On merits, it was  submitted that it was factually incorrect to  allege that there was delay on the part of the  defendants.  The defendants had produced Zimni  which went to show that it was the plaintiff  and not the defendants who was responsible for  the delay. If it is so, the High Court was  wrong in passing the impugned order.  Finally,  it was submitted that the High Court was not  justified in transferring the case in the court  of a particular named Judge.  Normally, no such  order is passed. Even in the transfer- application, no such prayer was made by the  plaintiff. The order to that extent, therefore,  deserves to be set aside. 12.             The learned counsel for the  respondent, on the other hand, supported the  impugned order.  It was submitted that the High  Court was satisfied that Section 24 of the Code  confers discretionary power on the Court to  transfer a case from one court to any other  court subordinate to it.  In exercise of the  said power, an action has been taken which  cannot be challenged under Article 136 of the  Constitution.  It was submitted that the High  Court took into account \021ground reality\022 that a  suit of 2003 which was of an urgent nature was  not disposed of even in 2006.  If, in the light  of the above fact, the case is transferred, it  could not be said that the order deserves  interference in exercise of discretionary  jurisdiction by this Court.  It was, therefore,  submitted that the appeal deserves to be  dismissed. 13.             Having considered rival contentions of  the parties and having gone through the  proceedings of the case, we are of the view  that the impugned order deserves to be set  aside.  So far as the power of transfer is  concerned, Section 24 of the Code empowers a  High Court or a District Court to transfer  inter alia any suit, appeal or other proceeding  pending before it or in any Court subordinate  to it to any other Court for trial and  disposal. The said provision confers  comprehensive power on the Court to transfer  suits, appeals or other proceedings \021at any  stage\022 either on an application by any party or  suo motu. 14.             Although the discretionary power of  transfer of cases cannot be imprisoned within a  strait-jacket of any cast-iron formula

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unanimously applicable to all situations, it  cannot be gainsaid that the power to transfer a  case must be exercised with due care, caution  and circumspection. Reading Sections 24 and 25  of the Code together and keeping in view  various judicial pronouncements, certain broad  propositions as to what may constitute a ground  for transfer have been laid down by Courts.  They are balance of convenience or  inconvenience to plaintiff or defendant or  witnesses; convenience or inconvenience of a  particular place of trial having regard to the  nature of evidence on the points involved in  the suit; issues raised by the parties;  reasonable apprehension in the mind of the  litigant that he might not get justice in the  court in which the suit is pending; important  questions of law involved or a considerable  section of public interested in the litigation;  \021interest of justice\022 demanding for transfer of  suit, appeal or other proceeding, etc.  Above  are some of the instances which are germane in  considering the question of transfer of a suit,  appeal or other proceeding. They are, however,  illustrative in nature and by no means be  treated as exhaustive. If on the above or other  relevant considerations, the Court feels that  the plaintiff or the defendant is not likely to  have a \021fair trial\022 in the Court from which he  seeks to transfer a case, it is not only the  power, but the duty of the Court to make such  order. 15.             In Maneka Sanjay Gandhi v. Rani  Jethmalani, (1979) 2 SCR 378, this Court  stated; \023Assurance of a fair trial is the  first imperative of the dispensation  of justice and the central criterion  for the court to consider when a  motion for transfer is made is not the  hypersensitivity or relative  convenience of a party or easy  availability of legal services or like  mini grievances. Something more  substantial, more compelling, more  imperiling, from the point of view of  public justice and its attendant  environment, is necessitous if the  Court is to exercise its power of  transfer. This is the cardinal  principle although the circumstances  may be myriad and vary from case to  case\024.                 (emphasis supplied)

16.             Similarly in Subramaniam Swamy v.  Ramakrishna Hegde, (1990) 1 SCC 4, dealing with  power of this Court to transfer a case under  Section 25 of the Code, A.M. Ahmadi, J. (as His  Lordship then was) stated; \023Under the old section the State  Government was empowered to transfer a  suit, appeal or other proceeding  pending in the High Court of that  State to any other High Court on

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receipt of a report from the Judge  trying or hearing the suit that there  existed reasonable grounds for such  transfer provided the State Government  of the State in which the other High  Court had its principal seat consented  to the transfer. The present Section  25 confers the power of transfer on  the Supreme Court and is of wide  amplitude. Under the present provision  the Supreme Court is empowered at any  stage to transfer any suit, appeal or  other proceeding from a High Court or  other Civil Court in one State to a  High Court or other Civil Court of  another State if it is satisfied that  such an order is expedient for the  ends of justice. The cardinal  principle for the exercise of power  under this section is that the ends of  justice demand the transfer of the  suit, appeal or other proceeding. The  question of expediency would depend on  the facts and circumstances of each  case but the paramount consideration  for the exercise of power must be to  meet the ends of justice. It is true  that if more than one court has  jurisdiction under the Code to try the  suit, the plaintiff as dominus litis  has a right to choose the Court and  the defendant cannot demand that the  suit be tried in any particular court  convenient to him. The mere  convenience of the parties or any one  of them may not be enough for the  exercise of power but it must also be  shown that trial in the chosen forum  will result in denial of justice.  Cases are not unknown where a party  seeking justice chooses a forum most  inconvenient to the adversary with a  view to depriving that party of a fair  trial. The Parliament has therefore,  invested this Court with the  discretion to transfer the case from  one Court to another if that is  considered expedient to meet the ends  of justice. Words of wide amplitude- for the ends of justice-have been  advisedly used to leave the matter to  the discretion of the apex court as it  is not possible to conceive of all  situations requiring or justifying the  exercise of power. But the paramount  consideration must be to see that  justice according to law is done; if  for achieving that objective the  transfer of the case is imperative,  there should be no hesitation to  transfer the case even if it is likely  to cause some inconvenience to the  plaintiff. The petitioner’s plea for  the transfer of the case must be  tested on this touchstone\024.

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                                   (emphasis supplied)  

17.             In the case on hand, the High Court  without stating anything whatsoever as to  allegations and counter-allegations, without  considering the reply submitted by the  appellant herein and without recording any  reason/ground passed the impugned order  transferring the case.  The learned counsel for  the contesting respondent no doubt submitted  that the Court has not observed anything since  observations by a High Court one way or the  other might prejudice one of the parties to the  suit. It is true that normally while making an  order of transfer, the Court may not enter into  merits of the matter as it may affect the final  outcome of the proceedings or cause prejudice  to one or the other side.  At the same time,  however, an order of transfer must reflect  application of mind by the Court and the  circumstances which weighed in taking the  action.  In the instant case, it was alleged by  the plaintiff that though more than three years  had passed from instituting the suit, it was  not disposed of and delay had been caused by  the defendants as they were in office and they  wanted to prolong the proceedings so that they  may take undue benefit of their status.  The  defendants, in the reply filed by them,  contended that delay had not been caused by  them, but it was the plaintiff who was  responsible for not proceeding with the suit  and was to be blamed for creation of such  situation. In support of the contention, Zimni  proceedings were relied upon.  It was also  urged that the plaintiff-side could not get  favourable order on applications under Order  XXXIX, Rules 1 and 2 of the Code and, hence, it  wanted to get the case transferred.  In view of  the assertion and retraction by the plaintiff  and the defendants, in our considered opinion,  the High Court ought to have applied its mind  to those aspects and prima facie satisfied as  to the grounds put forward by the plaintiff in  the transfer application and ought to have  passed an order one way or the other without  entering into the controversy in the suit.   Unfortunately, the High Court allowed the  application observing that it would be  \021appropriate\022 to transfer the suit pending in  the Court of Smt. Asha Konal, Civil Judge, (Sr.  Divn.), Ropar to the Court of Sh. Y.S. Rathore,  Additional Civil Judge (Sr. Divn.), Chandigarh.  In our opinion, powers under Section 24 of the  Code cannot be exercised ipse dixit in the  manner in which it has been done. Only on that  ground and without entering into larger issue,  the appeal deserves to be allowed and is  accordingly, allowed. 18.             For the foregoing reasons, the appeal  is allowed.  The order passed by the High Court  is set aside and the matter is remitted to the  High Court for fresh disposal in accordance  with law after hearing the parties.  On the  facts and in circumstances of the case,

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however, there shall be no order as to costs. 19.             Before parting with the matter, we  make it clear that we have not entered into  correctness or otherwise of what is stated by  the plaintiff or by the defendants and we may  not be understood to have expressed any opinion  on allegations and counter-allegations. As and  when the matter will be placed before the High  Court, the Court will take an appropriate  decision on its own merits without being  inhibited or influenced by the observations  made by us in this judgment.