Bachni vs Chhaju Singh and others

J.V. Gupta, J.—This petition is directed against the order of the trial Court dated 30th July, 1984, whereby he allowed the application of the Defendants for de-novo trial u/s 24 (2) of the Code of Civil Procedure.

The Plaintiff Petitioner. Bachni, filed the present suit on 7th April, 1982. She closed her evidence on 3rd March 1983. The Defendants failed to produce their evidence on various dates, and ultimately their evidence was closed by a Court order, dated 4th January, 1984. Civil Revision No. 269 of 1984 was filed against the said order closing the Defendants'' evidence The same was dismissed on 21st February, 1984. Later on the Defendants moved an application under order 18, Rule 17-A, CPC Code, for production of additional evidence on 16th March, 1984. That application was also dismissed on 16th April, 1984. Ultimately, the Defendants filed an application for transfer of the suit to the District Judge, Sangrur. The learned District Judge, transferred the case from that Sub Judge to another Sub Judge at Sunman on 23rd May, 1984. 25th May, 1984 was the date fixed for the appearance of the parties in the Court to which the suit was transferred. On that date, the Court passed the following Order: - "Present: Counsel for the parties. Suit received by transfer. It be registered. Put up for evidence on 6th June, 1984." On 26th May. 1984, the Defendants moved an application u/s 24(2), CPC for de novo trial. The learned trial Court allowed this application. Feeling aggrieved against the said order, the Plaintiff has filed this petition in this Court.

The trial Court while passing the said impugned order observed:

Suit has been transferred due to grouse entertained by the Defendants. If the fresh trial of the suit is ordered, it will cause mere delay in the disposal of the suit which can be easily compensated in terms of costs, whereas on the other side if the Defendants are not allowed to prove the will, Defendants will suffer on irreparable loss which cannot be compensated in terms of costs.

After hearing the Learned Counsel for the parties, I am of the considered view that the trial Court acted illegally and with material irregularity in exercising its discretion causing failure of justice. The conduct of the Defendants speaks for itself. Admittedly, their revision petition against the order dated 4th January, 1984 closing their evidence was dismissed by this Court on 21st February, 1984. After that, their application under Order 18, Rule 17-A CPC Code, was also dismissed on 16th April, 1984. Then an application, for transfer was filed before the District Judge, though nothing was said in the order transferring the case with respect to the conduct of the Presiding Officer, the case was just transferred in the interest of justice to another Court. Sub-section (2) of Section 24, CPC Code, reads as follows: -

Where any suit or proceeding has been transferred or withdrawn under Sub-section (1) the Court which is thereafter to try or dispose of such suit or proceeding may, subject to any specific directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

Of course, the Court to which the case has been transferred, may subject to any specific directions in the order of transferring, either retry it or proceed from the point it was transferred or withdrawn, that directions is to be exercised judicially and not arbitrarily, At observed earlier, the present suit was filed on 7th April, 1982. Practically for two years, the parties have been prosecuting their suit earlier and now by virtue of the impugned order, all those proceedings taken earlier have been set at naught by directing de novo trial. Moreover, as observed earlier, the conduct of the Defendants is such which did not warrant de novo trial of the suit. This direction, if any, under the said provision is to be exercised very rarely by the trial Court.

In this view of the matter, the petition succeeds and the impugned order is set aside with costs. The trial Court is directed to proceed with the suit in accordance with law from the order dated 25th May, 1984. It is further directed that the hearing of the suit be expedited. The parties have been directed to appear in the trial Court on 16th January, 1985.