This application under section 24 of the Code of Civil Procedure seeks the transfer of a suit entitled Rahim Bakhsh v. Khalil-ur-Rehman, from the Court of Sh. Abdul Razzaq, Civil Judge at Gujranwala, on the ground that on the 7th of October 1970 the learned trial Judge issued a notice to the plaintiff-petitioner asking him to show cause why he should not be punished for contempt of Court.
The plaintiff had obtained an ad interim temporary injunction from the trial Court, and when the matter came up for its confirmation, the plaintiff's counsel reported to the Court that he had been instructed by his client to state that the defendant-respondent Khalil-ur-Rahman had told the plaintiff that the temporary injunction would be vacated, and accordingly the defendant had already told the intending purchasers of the land in dispute to get the sales registered the next day. The insinuation was that the defendant had approached the Court. It appears that when the Court enquired from the plaintiff whether he had given any such instructions to his counsel, he insisted that it was so. However, the defendant, denied having made any such remarks to the plaintiff. In these circumstances the learned Civil Judge drafted a notice stating that during the pendency of the case the plaintiff had tried to prejudice the Court, and, therefore, he should show cause why he should not be dealt with for committing contempt of Court. In the same notice the learned Judge observed that he would not decide the question of temporary injunction at that stage and would allow one month's time to the plaintiff to move the District Judge for the transfer of the case to another Court, if he so desired.
2. The learned District Judge was accordingly moved in the matter by the plaintiff, but his application was rejected. In his order dated the 14th of November 1970 the learned District Judge of Gujranwala has observed that cases cannot be transferred from the Courts merely on the ground that one or the other party gives out that he has connections with the Court unless the truth of such assertions is established. He has added that the contempt proceedings are still pending and would be decided separately on merits.
3. It is submitted on behalf of the plaintiff that in issuing the notice of contempt the learned trial Judge acted in a-precipitate manner without caring to ascertain the true facts by allowing the plaintiff an opportunity to lead evidence in his defence. It is contended that in these circumstances a reasonable apprehension has arisen in the mind of the petitioner that justice will not be done to him by the Court concerned.
4. On behalf of the respondent the position taken up is that the plaintiff's suit being vexatious and frivolous, the present transfer application is only intended to delay the proceedings in the suit so that the ad interim stay order, obtained by the plaintiff, may continue to operate indefinitely against the owner of the land, who has already entered into agreements of, sale with third parties. further, it is submitted that the learned Civil Judge acted properly in issuing the impugned notice and the question of recording evidence in this behalf would arise only after the plaintiff has submitted his reply to the notice.
5. A large number of authorities have been cited at the bar, namely, Khwaja Ahad Shah v. Mst.
Ayshan Begwn , Mika Naramma v. Mula Rangamma , Gopal Singh v. Emperor , Sikandar Lal Puri v.
Emperor , Ry. Pratap Sinha Raja Sahib v. R. Srinivasagopalachariar , Satindra Nath Sen and others v. Emperor , Asa Nand v. Emperor , Gurdit Singh v. Kahan Chand , Girdhari Lai v. Ashjaq Ali Khan and another and Lalita Rajya Lakshmi and another v. State of Bihar and another. It is not necessary to discuss here the wide variety of circumstances and grounds forming the subject- matter of these cases, but the principle which clearly emerges is that the transfer of a case from a Court of competent jurisdiction is justified only if there is a reasonable apprehension in the mind of the party concerned that the Court would not be able to act fairly and impartially in the matter. It is of paramount importance that parties arraigned before Courts should have confidence in their impartiality. It is one of the important duties of the High Court to create and maintain such confidence, and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial by a Judge or Magistrate when he reasonably regards as being prejudiced against him. What is a reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances ; and the Court must endeavour, as far as possible, to place itself in the position of the applicant seeking transfer, and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him. Nevertheless, it is not every incident regarded as unfavourable by the applicant which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied, namely, that the apprehension must be such as a reasonable man might reasonably be expected to have.
6. Now let us apply this test to the ground urged in the instant case. The learned trial Judge has taken note of an accusation made during the trial that the opposite-party was declaring that the question of the interim injunction would be decided in his favour, thus implying that he had managed to approach the Court. The matter was reported to the Court by the petitioner's counsel on express instructions having been given in this behalf, without making up his mind for or against the petitioner or the respondent, the trial Judge was clearly under a judicial and moral obligation to take note of the accusation and to enquire from the defendant whether he had made any such claim or declaration. As the defendant entered a denial, the trial Court rightly proceeded to issue a notice to the plaintiff-petitioner to show cause why he should not be punished for contempt. This action can neither be termed precipitate nor prejudicial to the petitioner, as it clearly provides an opportunity to the petitioner to substantiate the assertion he had made through his counsel. It has been rightly pointed out on behalf of the respondent that there was no question of taking evidence1 2 3 4 5 6 7 8 9 10 in this behalf before issuing the notice. The proper stage for doing so was obviously after calling upon the plaintiff to show cause, and this is precisely what the learned trial Judge has done. The mere issuance of the notice, therefore, cannot be regarded by a reasonable man acting and thinking reasonably, as causing an apprehension that the trial Judge will not be able to do justice in the main cause B The petitioner is clearly at liberty to establish his innocence and bona fide in response to the show-cause notice. There is no indication that the learned trial Judge does not have an open mind on the question.
7. There is yet another aspect of the matter. The power of contempt is a most extraordinary jurisdiction, intended to safeguard the interest of the public by protecting the dignity, decency and decorum of the Courts of law. It is to be exercised not for the protection of the Judges but to keep the fountain of justice pure and unsullied, so that the Courts C continue to enjoy public confidence in the performance of their difficult and delicate task. This object would be clearly defeated if initiation of action for contempt were to justify, by itself, the transfer of a case from the Court taking notice of the alleged conduct of the party concerned. As observed by Iqbal Ahmad, J., in Salag Ram v. Emperor , "to hold otherwise would be to concede the privilege to a party to a case to secure the transfer of a case from a particular Court by being unnecessarily offensive and insolent and thus courting proceedings for contempt of Court. This could not be done." The power D of contempt being incidental to the proper conduct of judicial proceedings before a Court of law, and being intended primarily for the advancement of the cause of justice, the mere initiation of such proceedings against a party to a cause cannot be regarded as creating any justification in law for the transfer of the case from that Court.
8. The learned counsel for the petitioner drew my attention to the observations made by Agha Haider, J., in the case of Asa Nand v. Emperor , to the effect that where a Magistrate had instituted proceedings against the accused under section 228. I. P. C., and in his anxiety to secure imprisonment of the accused did not take those proceedings himself, the act was not likely to inspire in the mind of the accused the feeling that he would have a fair and impartial trial in the Court of that Magistrate for any other offence, especially so where it was proposed to call the Magistrate as a witness in the contempt proceedings. It appeared to the learned counsel that these observations amounted to laying down the principle that initiation of contempt proceedings by a Court would justify the transfer of the case from that Court.
9. I regret I am unable to read any such meaning in the observations made by the learned Judge.
The case was transferred not simply for the reason that the Magistrate had initiated contempt proceedings against the accused, but because he had taken certain steps to ensure that the accused was sent to prison in those proceedings, and there was the further fact that the Magistrate was to be called as a witness in the contempt proceedings. These were clearly circumstances which could not be ignored in determining whether the accused had a reasonable apprehension in the matter. I also find that these facts are clearly distinguishable from those before me. There is no allegation whatsoever in the present case that the learned trial Judge has gone out of the way to get the petitioner punished for contempt. As already pointed out, the only step taken by the learned trial Judge is the issuance of a notice asking the plaintiff to show cause why a particular action should not be taken against him. This action being in accord with the normal judicial procedure, no exception can be taken thereto.
10.For the foregoing reasons I have come to the conclusion that no justification is made out for the transfer of the suit. Accordingly, the transfer application fails and is hereby dismissed. The parties are left to bear their own costs.
77 I C 762 AIR 1926 Mad. 35911 12 1 2 A I It 1928 Lab. 180 AIR 1928 Lab. 975 Al R 1926 Mad. 15 AIR 1929 Cal. 809 130 I C 330 AIR 1934 Lah. 593 AIR 1934 All 44$ AIR 1957 Pat. 198 AIR 1937 All. 171 130 I C 330