- (1.) UMESHWAR Pandey, J. Heard learned Counsel for the applicant.
(2.) THIS transfer petition under Section 24 of C. P. C. has been filed seeking transfer of five pending matters detailed in paragraph-11 of the petition from the Court of Principal Judge Family Court to any other Court in the district. There is a complaint against the Presiding Officer of the concerned Court in Annexure-3 to the petition, which has been made the entire basis for seeking the transfer. This complaint has been addressed to Hon'ble the Chief Justice spelling out extremely scandalous allegations against the Presiding Officer. The petitioner has not spared even the District Judge of concerned district against whom there is accusation that he has prejudice against her because he wanted to marry his daughter with petitioner's husband earlier to the petitioner's marriage. The comments of the concerned District Judge have been received in this context in which he has though, admitted that the proposal was once made but subsequently he himself did not find this proposal as appropriate for his daughter's marriage. Obviously, this sort of allegation against the District Judge, who has absolutely no concern in the aforesaid pending matters himself, demonstrates to the extent of hardheadedness of the petitioner lady. In the accusations made against the Presiding Officer, she has also made some reference to certain conversations and talks, which the Presiding Officer allegedly had with the lady in his chamber. Those facts, as disclosed in the complaint, have been categorically denied by the Judge Family Court in his comments submitted before this Court. Otherwise also these charges, which have been lavelled in the complaint, appear to be wholly frivolous and baseless. Nothing is there on record to indicate as to what has happened in the inquiry against the officer but on the face of it these accusations being extremely scandalous appear to be wholly absurd and unacceptable. Certain other sundry factual incidents have been narrated in this complaint supporting to petitioner's accusation regarding prejudice that the Court has allegedly acquired against her. It is on these grounds that the petitioner has submitted that she would not be getting justice at the hands of the Presiding Officer of the Court and is in-charge of those cases for its disposal. As already referred to above, the entire accusations made against the Presiding Officer has been categorically denied and otherwise also, I do not feel such accusation made against a Judicial Officer of the seniority possessed by the Principal Judge Family Court, Gorakhpur, can ever be correct and acceptable. There is absolutely no strength in the grounds taken by the petitioner for transfer of those cases from that Court to any other Court. Accordingly, the petition being wholly misconceived is hereby dismissed.
(3.) BESIDES above, the allegations made against the Presiding Officer assassinating his character and conduct in relation to his approach towards petitioner's cases pending before him, being wholly scandalous and frivolous, there is one big question, which may be noticed that after so much scandalisation of Officer's character would it be justifiable to keep the cases in that Court over which he is Presiding? The answer would be in the negative. May be that the Presiding Officer, who has put in so much of service in the judicial wing deciding the cases, must have acquired enough will power to sustain his cool while finally deciding the matter and delivering the judgment. But it apparently does not appear just that the cases, which are before him, should any further remain there waiting for his decision. It would be always just and proper that the cases should be transferred to some other Court for decision, which may also appear to be fair and unprejudiced. The justice done in a particular matter between the parties ought to appear that the justice in actuality, has been done. Therefore, in pursuance to this if the cases are transferred from the Court-of present Principal Judge Family Court to any other Court, it would be more justifiable. In this context, submission was made from the side of the Counsel appearing for the opposite parties that there being only one designated Family Court in the district, the other Courts functioning there are not supposed to be competent Courts for disposal of those matters in the face of provisions of Section 8 of the Family Courts Act. The provision excludes the jurisdiction of other Courts in the district from exercising jurisdiction in respect of any suit or proceeding of the nature referred to in the explanation to Section 7 (1) of the said Act. While dealing with the aforesaid submissions, it would be pertinent that the provisions of Section 8 of the Family Courts Act as well as provisions of Section 24 of C. P. C. should be extracted below to facilitate the discussion on the point: 8. Exclusion of Jurisdiction and pending proceedings.- Where a Family Court has been established for any area.- (a) no district Court or any subordinate civil Court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section; (b) no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974); (c) every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), - (i) which is pending immediately before the establishment or such Family Court before any district Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established. 24. General power of transfer and withdrawal.- (1) On the application of any of parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion, without such notice, the High Court or the District Court may, at any stage- (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it; and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) re-transfer the same for trial or disposal to the Court from which It was withdrawn. (2) 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 special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. [ (3) For the purposes of this section,- (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) "proceeding' includes a proceeding for the execution of a decree or order. ] (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. [ (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it];