Vijay Kumar and Others Vs Smt. Uma Sanghi and Others

@JUDGMENTTAG-ORDER

V.D. Gyani, J.@mdashThis order shall also dispose of Civil Revision No. 185 of 1986 -- Rameshchandra Sinha v. Smt. Uma Sanghi Misc. Civil Case No. 129 of 1986, and Misc. Civil Case No. 130 of 1986.

2. Civil Revisions Nos. 184/86 and 185/86 arise out of the same order dt/- 7-5-1986, passed by the District Judge, Indore, in Misc. Judicial Case No. 28 of 1986 and Misc. Judicial Case No. 29 of 1986, although they have been preferred by two different petitioners, Vijaykumar and Rameshchandra Sinha. Similarly, Misc. Civil Case No. 129/86 and Misc. Civil Case No. 130/86, have been preferred respectively by Vijaykumar and Rameshchandra Sinha and they also relate to the same matter. As the Misc. Judicial Cases have been disposed of by a common order dt. 7-5-1986, passed by the District Judge, Indore, and the Misc. Civil Cases also relate to the same matter, all these four cases have been heard together and are being disposed of by a common order.

3. A brief resume of facts, necessary for disposal of these matters is that Rameshchandra Sinha, filed Civil Original Suit No. 62A of 1986, for a perpetual injunction, praying that the defendants, including Smt. Uma Sanghi, Akshya Sanghi, Ramjilal Sharma, Babulal Saini, Giriraj Purohitand Vimal Arora, be restrained from interfering with the plaintiff''s management and control of the Dreamland Cinema, Mhow. In the meanwhile Vijaykumar Sanghi, Amritkumar Sanghi, and Ratankumar Sanghi also filed a suit against Smt. Uma Sanghi and Ramjilal Sharma for perpetual injunction seeking to restrain the defendants from taking possession of the Dreamland Cinema and in any manner interfering with the management and control of Rameshchandra Sinha in running the Cinema house. They also moved an application for an ad interim injunction. The trial Court, after hearing the parties concerned, by its order dt. 30-4-1986, granted an interim injunction against the respondents restraining them from taking possession of the Dreamland Cinema and interfering with the management and control of Rameshchandra Sinha in running the Cinema House. Aggrieved by this order two Misc. Appeals were preferred before the Addl. District Judge, Mhow, on the same day, i.e. on 30-4-1986. These appeals were registered as Misc. Appeal No. 33/86 Smt. Uma Sanghi v. Vijaykumar and Misc. Appeal No. 34/86 Smt. Uma Sanghi v. Rameshchandra Sinha. Civil Misc. Appeal No. 33/86 was preferred on 30-6-1986, while Civil Misc. Appeal No. 34/86 was preferred on 1-5-1986. Smt. Uma Sanghi and Ramjilal Sharma on 1-5-1986 moved an application u/s 24 read with Section 151, CPC in the Court of District Judge, Indore, praying for transfer of appeal (C. M. A. No. 33/86), pending before the Addl. District Judge, Mhow, which was registered as M.J.C. No. 28/86. A similar application was also moved in respect of C. M. A. No. 34/86, pending in the Court of Addl. District Judge, Mhow, which was registered as M. J. C. No. 29 of 1986.

4. It is not in dispute that the Dreamland Cinema, Mhow was run by M/s. Sanghi Bros, a registered partnership firm, having its registered office at Jodhpur. Smt. Uma Sanghi is the widow of Late Shri Narendrakumar Sanghi, who was also a partner of the firm. Rameshchandra Sinha was appointed as Manager by the firm. The plaintiffs'' case is that Smt. Uma Sanghi unauthorisedly attempted to lease out the Cinema to defendant No. 2 Ramjilal Sharma on a monthly rent of Rs. 5,000/- but before the deal could be effected, the plaintiffs instructed their manager not to part with possession and continue to manage and look after the Cinema, which he did.

5. According to the plaintiffs Ratankumar Sanghi had on 27-1-1986 served a notice of dissolution of firm, which was accordingly dissolved, but the winding up proceedings had not completed and the accounts were not settled. Rameshchandra Sinha continued to manage the Cinema but on 20-3-1986 he informed the partner Ratankumar Sanghi that defendant 2 was threatening to dispossess him. Thereupon the partner Ratankumar Sanghi instructed the Manager Shri Sinha not to hand over possession to any party. It is also alleged that defendant 2 Ramjilal Sharma made a frantic attempt in dispossessing Shri Sinha, but the bid was foiled. Smt. Uma Sanghi, relying on a family arrangement, arrived at on 21-10-1984 and reduced to writing, has maintained that she is one of the partners of M/s. Sanghi Brothers, Jodhpur, and in her capacity as a partner, along with Akshyakumar, her son, another partner of the firm, she had on 1-2-1986 rented out the Dreamland Cinema to Shri Ramjilal Sharma on a weekly rent of Rs. 2700/- and he was running the same. On 1-3-1986 with the consent of other partners she admits having leased out the Cinema on a monthly rent of Rs. 5000/- to Shri Ramjilal Sharma. Employees of the Cinema were accordingly intimated by intimation dt. 3-3-1986. Thus, the case is between the warring partners. But it is not at this stage necessary to go into the rival claims and the contentions as the controversy in these revision petitions and the Miscellaneous Civil Cases lie in a narrow compass, that too, essentially legal.

6. Being aggrieved by the injunction order dated 30-1-1986, an appeal, being C. M. A. No. 33/86, was preferred on the same day, while Misc. Appeal No. 34 of 1986 was preferred on 1-5-1986. It is quite understandable that the appellant, against whom an ad interim injunction was passed, was very keen on hearing of appeal and the interim application seeking to stay the operation of the injunction was passed by the trial Court. The order sheet dt. 30-4-1986 reads as follows "Shri K. G. Maheshwari, Advocate present for the appellant. He has also presented an application for stay of the lower Court''s order until the disposal of this appeal. Shri Gopaijiram took notice on behalf of the respondent. The parties were heard for order on 1-5-1986." Next day Shri Maharshi, Advocate, presented Civil Misc. Appeal No. 34 of 1986 (Smt. Uma Sanghi v. Rameshchandra) and in both these appeals the learned Addl. District Judge by his order dt. 1-5-1986, refused to grant stay of operation of the injunction order in view of the decision of this Court in Vasant Diwakar Patrikar and Others Vs. Union of India (UOI) and Others, : which held that Order 41, Rule 5, CPC, cannot be invoked for grant of stay of an order of temporary injunction, passed by the trial Court, Even before the appeals could be registered and the orders passed, as is evident from these applications itself, wherein the number of appeal, as in the last paragraph, is conspicuously missing, which clearly indicates that till the presentation of these applications, the appeals were not registered nor any order passed, still, however, applications u/s 24, CPC were moved for transferring the appeals.

7. Allegations made against the learned Addl. District Judge are to be found in para 5 of these applications. Reading para 5 of the application, in M. J. C. No. 28 of 1986, also indicates that till the filing of this application no order was passed by the learned Addl. District Judge on the said application. Para 5 contains a statement to that effect and also that in view of the urgency the appellant pressed the learned Add. District Judge, Mhow, for early final hearing of the appeal, in view of the ensuing summer vacation as the appellants were likely to suffer an irreparable injury, but the learned Addl. District Judge expressed his inability to hear the appeals in the first week of summer vacation and both the appeals were fixed for final hearing on 20-6-1986 by the learned Addl. District Judge. Reverting back to the order passed on 7-5-1986 on the application, which is to be found in M. J. C. No. 29 of 1986 the last two paras of this order are reproduced hereunder, as they are material for the disposal of these revision petitions :

"Whereas appeal being the continuance of the original proceeding, status quo is a must. The provisions of Order 41, Rule 5, CPC may not be applied as per Vasant Diwakar Patrikar and Others Vs. Union of India (UOI) and Others, , but according to the same ruling the stay can be granted u/s 151, CPC, but that prayer too was turned down by the learned A. D. J. and he posted the case for 20-6-86, while the lower Court, who heard the arguments, passed an order on 30-4-86, while the appeal was filed the very next day. Thus, the early hearing was a must for under the cover of a vacation the urgency can be thwarted.

As far as urgency is concerned, it is a veried term, the matter may be very urgent as not only it threatens one''s livelihood, but an invesion of the right to possess the property. Thus, the case of urgency having been well made out I bear with Mr. K. G. Maheshwari and I transfer the case from the Court of A. D. J., Mhow to this Court, while this causes no inconvenience to the plaintiffs respondents. This case has been already fixed for final arguments. I will hear the parties who have already been as such noticed. So, C. F. Final arguments on 9-5-1986."

8. Shri Chaphekar, learned Counsel for the petitioners, has vehemently criticised the order on the ground that it was beyond the jurisdiction of the District Judge to comment on the order refusing the stay, passed by an Addl. District Judge. It was submitted that in making such remarks the learned District Judge transgressed the limits of judicial probity as the District Judge was not an appellate authority and it was not competent for him to sit in judgment over the order passed by the Addl. District Judge, Mhow, refusing to stay the operation of the order. He also took strong exception to the use of the term thwarting of urgency in the cover of vacations. According to the learned Counsel, the scope of Section 24, C.P.C. was completely overlooked by the learned District Judge, while passing such an order, it was contended that the transfer application was made even before the order was passed, by the Addl. District Judge. Shri Chaphekar also submitted that urgency of the matter was to be decided by the Court concerned and if the parties in fact felt aggrieved, it was open to them to move this Court in appropriate proceedings for quashing the order passed by the Addl. District Judge, rather than making it an issue of transfer petition u/s 24, C.P.C. and that too prior to the registration of appeals and passing of the order by the Addl. District Judge. Shri Chaphekar also submitted that none of the grounds contained in the application for transfer is germane to the transfer order, as passed by the District Judge.

9. Shri Garg, learned Counsel appearing for the respondents, after tracing a chronological events leading to the filing of the suit and the history of the case, tried to make out a case of urgency, as according to him possession and actual management of the Cinema was with the respondents Rameshchandra Sinha, the Manager, whose services had already been terminated, and who had taken his salary in lieu of notice period and handed overcharge to Shri Vyas. But to my mind it is not necessary to go into these facts at this stage as the appeals are yet to be heard and decided by the lower appellate Court and any finding or comment on such facts is likely to prejudice either parties and secondly, these revision petitions are against the transfer order.

10. Shri Garg submitted that the language used in the impugned order should not be unduly stretched to make out a case of bias. According to him the learned District Judge, in view of the urgency made out was justified in passing an order, particularly when the Cinema was allowed to be run by an ex-servant and there was lot of mismanagement. He produced certain Panchnamas for perusal. Without commenting on merits and strength of either party''s case, the crucial question, which falls for consideration is whether there was any ground made out for transfer of appeals pending before the Addl. District Judge and whether not granting interim stay of operation of the order appealed against would itself justify transfer of a pendingappeal from one Court to another. Shri Garg has placed reliance on a decision of this Court in Nagar Palika, Maheshwar Vs. Balwantrao, . According to the proposition laid down in this decision an appeal can be heard during vacation. There is no dispute about this proposition. The question is about transfer and that too on the grounds indicated above. In Section 24, C.P.C., following grounds have been held to be good grounds for involving Section 24, C.P.C.--(a) reasonable apprehension of the litigant that he might not get justice in the Court in which the suit is pending; (b) the Judge having an interest in the lis, (c) importance and the difficulty of the question involved in the case, and (d) lastly, where the interests of justice require a transfer. Applying these tests, none of these grounds appears to have been made out by the applicants for transfer of the case. It cannot be even in the interests of justice, because the Court had considered the application for stay of effect and operation of the injunction order. Therefore, in the opinion of the Court even urgency was not there, yet the date fixed for final hearing of the appeals was soon after reopening of the Courts. As against the dismissal of stay application, the remedy does not lie in a transfer petition and in the background of facts, what was stated before the District Judge is not to be borne out from the record The order sheets dt. 3-4-1986and l-5-1986do not even remotely suggest that there was any such dialogue between the respondents'' counsel and the Judge, which warranted an inference that the Judge was out to thwart urgency under the cloak of vacation. Shri Chaphekar rightly pointed out that it was not open to the learned District Judge to pass such remarks, particularly when even on being pressed he refused to obtain comments from the Judge concerned. If there was no need to have any comments from the Additional District Judge, as no personal allegation was made against the Judge, then it was-all the more desirable to have avoided passing such comments. Reading the order it is clear that thwarting of urgency was attributed to the Addl. District Judge. The order also states that the Addl. District Judge turned a deaf ear to the request made by the respondents for early hearing and fixed the appeal for final hearing on 20-6-1986. There is no material on record to come to such a conclusion, as in view of the omission in the transfer application, pointed out above, it is not possible to agree that the urgency pleaded and projected for seeking the transfer before the District Judge, was there. Even otherwise, this urgency is to be viewed in the background of dismissal of the stay application. Right or wrong, the learned Addl. District Judge was not of the opinion to stay the operation of the order appealed against. There would have been no urgency at all either for early hearing or for transferring the appeal. Looking at the case from any angle, there was neither any justification for comments against the Addl. District Judge, as pointed out in the impugned order, nor grounds for transferor the appeals u/s 24, C.P.C.

11. For the foregoing reasons, these revision petitions deserve to be allowed and are accordingly allowed. The impugned order is liable to be set aside and is accordingly set aside.

12. Coming to the Miscellaneous Civil Cases for transfer, in view of the fact that the impugned order itself has been quashed, as a necessary corollary thereof the appeals must go back to the Court wherefrom they had been transferred. In effect the Misc. Civil Cases are disposed of accordingly. The District Judge is directed to send back both the Misc. Civil Appeals to the Court of Addl. District Judge, Mhow. Records of Courts below be sent back immediately. The parties are directed to appear before the Addl. District Judge, Mhow, on 14-7-1986.