# Anuj Kumar v. Kshama

- **Citation:** (2021) 10 ILRA 146
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-24
- **Case number:** Civil Misc. Transfer Application No. 207 of 2021
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anuj-kumar-v-kshama-46224
- **Pages:** 5

## Headnote

A. Civil matter-Code of Civil Procedure,
1908-Section 24-transfer sought on the
ground that doubt the impartiality of the
Judge-allegations imputing prejudice or
bias to the Presiding officer of the Family
Court on the ground alone that the Judge
was trying to expedite hearing of the
petition
and
turning
down
dilatory
motions, is ex facie without substance-the
fact that a judge is enthusiastic or works
with dispatch to conclude a trial under
supervisory directions issued by this Court
to
proceed
and
decide
expeditiously
within specified time, cannot be an index
generally about the Judge's bias-litigant
himself contribute very often to delays in
Court-Absolutely unacceptable conduct for
a litigant to raise a finger at a Judge-such
conduct requires to be put down-costs in
the sum of Rs. 25000/- payable to the
opposite party.(Para 1 to 12)

The application is dismissed. (E-6)

## Text

146 INDIAN LAW REPORTS ALLAHABAD SERIES
Division Bench of this Court has held as
under:-

"From the above provisions, it is
thus, apparent that the State Election
Commissioner, District Magistrate and the
Election Officer are empowered to supervise,
control and conduct the election. After the
election is over, they lose all jurisdiction
over the matter and it is the Election
Tribunal alone, which is competent to deal
with the dispute arising out of or in
connection with the election. The meaning of
the word election and when does the election
process comes to an end has been considered
by the Supreme Court from time to time while
deciding the cases under the R.P. Act,
leading case being N.P. Punnuswami v.
Returning Officer AIR 1952 SC 64, wherein
the election was given the wide meaning so
as to connote the entire process culminating
in a candidate being declared elected. It,
thus, includes the entire procedure to be gone
through to return a candidate to the
Legislature. Same rule was reiterated in
Mohinder Singh Gill v. Chief Election
Commissioner AIR 1978 SC 851, wherein it
was laid down that the election commences
from the initial notification and culminates in
the declaration of the return of a candidate.
Election process, thus, comes to an end on
the final declaration of returned candidates.
As the pattern and the procedure for holding
the election under the Act and the Rules is
similar to that contained in the R.P. Act, the
same definition of election has to be applied
to the election held under the Act and the
Rules. After the election process has come to
an end, the State Election Commissioner,
District Magistrate and the Election Officer
lose all their jurisdiction and the only
authority, which can deal with and decide
any complaint regarding the election is the
Election Tribunal..."

 (emphasis by Court)

19. Likewise, the Division Bench of
this Court in the case of Shambhu Singh Vs.
State Election Commission, U.P and Ors
reported in 2000 (4) AWC 2777 has held as
under:-

".....In our view, on proper
interpretation of the Statute, after the
election process has come to an end, the
State
Election
Commissioner,
District
Magistrate and the Election Officer cease
to have any jurisdiction and the only
authority which can deal with and decide
any complaint regarding the election is the
Election Tribunal...."

20. The Apex Court in the cases of
N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency; AIR 1952 SC 64
and Krishnamoorthy Vs. Sivakumar and
others; (AIR 2015 Vol-3 SCC 467) have
also held likewise.

21. Keeping in view the aforesaid
discussion, the writ petition is dismissed
leaving it open to the petitioner to avail other
remedies that may be available to him.
----------

(2021)10ILR A146
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.09.2021

BEFORE

THE HON'BLE J.J. MUNIR, J

Civil Misc. Transfer Application No. 207 of 2021

Anuj Kumar ...Applicant
Versus
Kshama ...Opposite Party

Counsel for the Applicant:
Sri Prabhakar Srivastava, Sri Pabhat Kumar
Srivastava
10 All. Anuj Kumar Vs. Kshama
147
Counsel for the Opposite Party:
Sri Abhishek Gupta

A. Civil matter-Code of Civil Procedure,
1908-Section 24-transfer sought on the
ground that doubt the impartiality of the
Judge-allegations imputing prejudice or
bias to the Presiding officer of the Family
Court on the ground alone that the Judge
was trying to expedite hearing of the
petition
and
turning
down
dilatory
motions, is ex facie without substance-the
fact that a judge is enthusiastic or works
with dispatch to conclude a trial under
supervisory directions issued by this Court
to
proceed
and
decide
expeditiously
within specified time, cannot be an index
generally about the Judge's bias-litigant
himself contribute very often to delays in
Court-Absolutely unacceptable conduct for
a litigant to raise a finger at a Judge-such
conduct requires to be put down-costs in
the sum of Rs. 25000/- payable to the
opposite party.(Para 1 to 12)

The application is dismissed. (E-6)

(Delivered by Hon'ble J.J. Munir, J.)

1. This transfer application, under
Section 24 of the Code of Civil Procedure,
has been instituted by Anuj Kumar, seeking
transfer of Matrimonial Case no.589 of
2017, Kshama vs. Anuj Kumar, under
Section 12 of the Hindu Marriage Act from
the Additional Principal Judge, Family
Court, Gautam Budh Nagar to any nearby
district.

2. Heard Mr. Prakhar Srivastava,
learned Counsel for the applicant and Mr.
Abhishek
Gupta,
learned
Counsel
appearing on behalf of the opposite party.

3. A perusal of the grounds of transfer
does not indicate that it is, in fact, a case
for an inter-district transfer on grounds
such as convenience of parties or other
germane grounds to move the case out of
the district. The transfer has been sought
primarily on the ground that doubt the
impartiality of the Judge. The reason, the
applicant does not expect the Judge to
decide fairly, is an inference drawn by the
applicant from certain events in the course
of proceedings. It is asserted in the affidavit
that the applicant, who is a respondent to
the petition for grant of a decree of nullity,
made an application under Order VII Rule
11 CPC asking the Court to reject the
petition.
The
ground
urged
in
the
application under Order VII Rule 11 CPC
is that the petition for a decree of nullity is
ex facie barred by the statutory limitation
inasmuch as a period of one year has
elapsed between the date of marriage and
presentation of the petition. The said
application was rejected by the Trial Judge
vide order dated 17.03.2021, which the
applicant says the Judge has done wrongly
and illegally.

4. It is asserted that the applicant had
cited authorities before the court in support
of his case for a rejection of the petition,
but the Trial Judge did not refer to any of
those authorities while writing the order
refusing to reject the petition under Order
VII Rule 11 CPC. It is then asserted that
the applicant moved an application on
18.03.2021 before the Trial Court to allow
him fifteen days' time to file an appeal to
this Court, but the learned Judge rejected
that application, fixing 19.03.2021 for
hearing. It is also asserted that on
19.03.2021, the learned Counsel for the
applicant moved another application before
the Trial Judge praying that he may be
allowed time to file an appeal from the
order dated 19.03.2021 to this Court, but
the Trial Judge appeared adamant to decide
the case. It is inferred from these facts that
148 INDIAN LAW REPORTS ALLAHABAD SERIES
the Court appeared to be "interested" to
decide the case.

5. It is averred in paragraph 11 that
from the attitude of the learned Trial Judge,
it is apparent that he was "very much
interesting in this case for deciding the
matter as early as possible". It is also
averred in paragraph 12 that the attitude of
the Trial Court clearly shows that the Court
was leaning in favour of the opposite party
and the applicant had no hope of justice
from the learned Judge.

6. A counter affidavit has been filed
on behalf of the opposite party, who has
denied these allegations. It is asserted in
paragraph no.8 of the counter affidavit that
the applicant is lingering on the petition
under Section 12 of the Hindu Marriage
Act, indulging in dilatory tactics. The
opposite party, therefore, moved a petition
under Article 227 being Matter under
Article 227 No.1461 of 2020 before this
Court seeking a direction to the Principal
Judge, Family Court, Gautam Budh Nagar
to decide the petition expeditiously and
within a specified time. This Court
disposed of the said petition by an order
dated 20.02.2020, reasoning and directing
in the following terms:

"The courts cannot be held to
ransom by the conduct of the parties or the
strikes of the counsels. The process of law
has to run its course unimpeded by any
such obstructions. The courts have to pass
appropriate orders in accordance with law
when the parties or counsels are not
cooperating with the trial proceedings. The
court proceedings cannot come to a stand
still under any circumstance.

In
view
of
the
preceding
discussion, the matter is remitted to the
learned trial court / learned Principal Judge,
Family Court, Gautam Budh Nagar before
whom the Original Suit No.589 of 2017
(Kshama Vs. Anuj Kumar) is pending. The
following measures shall facilitate the
learned trial court / learned Principal Judge,
Family Court, Gautam Budh Nagar, to
dispose
of
the
said
proceedings
expeditiously and in light of the statutory
mandate:

(I) The learned trial court /
learned Principal Judge, Family Court,
Gautam Budh Nagar is directed to decide
the Original Suit No.589 of 2017 (Kshama
Vs. Anuj Kumar) preferably within a
period of six months from the date of
receipt of a certified copy of this order.

(II) The learned trial court /
learned Principal Judge, Family Court,
Gautam Budh Nagar shall not grant any
unnecessary adjournment to the parties.

(III) In case any adjournment is
granted in the paramount interest of justice,
the learned trial court / learned Principal
Judge, Family Court, Gautam Budh Nagar
shall impose costs not below Rs. 5,000/- for
each adjournment.

III. In case the counsels abstain
from work on account of strike call, the
learned trial court / learned Principal Judge,
Family Court, Gautam Budh Nagar shall
proceed in the absence of such counsels
and pass appropriate orders.

IV. The learned trial court /
learned Principal Judge, Family Court,
Gautam Budh Nagar shall record the names
of counsels who abstain from work
pursuant to strike call and do not appear
before the learned trial court / learned
Principal Judge, Family Court, Gautam
Budh Nagar and shall not permit such
counsels to appear in this case on all future
dates of hearing.

(V) The learned trial court /
learned Principal Judge, Family Court,
Gautam Budh Nagar shall proceed with the
10 All. Anuj Kumar Vs. Kshama
149
trial on a day to day basis, if required, to
ensure that the all endeavours are made to
decide the suit preferably within a period of
six months."

7. It is averred in paragraph no.9 that
despite the order dated 20.02.2020 passed
by this Court, the applicant was lingering
on the matter by moving frivolous
applications
and
objections
to
delay
proceedings. It is pleaded in paragraph
no.10 that on 11.02.2021, the applicant
made an application under Order XIV Rule
5 CPC asking the Court to frame a new
issue to the effect: "whether the petition u/s
12 of Hindu Marriage Act is time barred as
it is given after 1 year of marriage". It is
pointed out that the Court did frame a new
issue vide order dated 13.03.2021 and fixed
08.03.2021 for address of arguments. At
this
stage,
the
applicant
moved
an
application under Order VII Rule 11 CPC
to reject the petition on the same ground,
where the Court had earlier acted on the
application under Order XIV Rule 5 and
framed an issue.

8. I have considered the rival
submissions of parties and perused the
record.

9. The allegations in the affidavit
imputing prejudice or bias to the Presiding
Officer of the Family Court on the ground
alone that the Judge was trying to expedite
hearing of the petition and turning down
dilatory motions, is ex facie without
substance. Here, the Court notices that
there is a very detailed order passed by this
Court directing the Family Court Judge on
20.02.2020 to expedite proceedings of the
petition for a decree of nullity, where the
Judge was expected to decide the petition
within six months from the date of receipt
of a copy of that order. There are directions
to impose costs in case of adjournment and
record names of counsel who abstain from
work pursuant to strike calls. This Court
has directed the Family Court Judge to
proceed with the trial on a day-to-day basis,
a time frame of six months being allowed
to conclude all proceedings.

10. In the circumstances, hardly any
fault can be found with the Trial Judge's
conduct in expediting proceedings and
turning down a motion under Order VII
Rule 11 CPC, particularly when the plea
involved in the said motion was already
subject matter of consideration as a
preliminary issue. Quite apart, the fact that
a Judge is enthusiastic or works with
dispatch to conclude a trial or other
proceedings, cannot be an index generally
about the Judge's bias. It would be very
unsafe to infer bias from the conduct of a
Judge, who proceeds with a case swiftly,
more so when he is doing so under
supervisory directions issued by this Court
to proceed and decide expeditiously within
a specified time. It is, indeed, ironical that
there is a complaint to be found amongst
the public in general and the litigants in
particular about unsavory Court delays and
liberal adjournment of causes. This case is
a classic illustration of how litigants
themselves contribute very often to delays
in Court. It is absolutely unacceptable
conduct for a litigant to raise a finger at a
Judge because the Judge endeavours to
proceed expeditiously with a cause. This
kind of conduct requires to be put down
with a heavy hand.

11. This Court does not find the
slightest of reason to accede to the
applicant's prayer for transfer. Also, this
Court is of firm opinion that given the
nature of allegations and the conduct of the
applicant, deterrent costs are required to be
150 INDIAN LAW REPORTS ALLAHABAD SERIES
imposed upon him so as to discourage such
irresponsible allegations being made that
deflect the smooth course of justice.

12. In the result, this application fails
and is dismissed with costs in the sum of
Rs.25,000/- payable by the applicant to the
opposite party. The costs shall be remitted
in the account of the opposite party within
a month by the applicant through an
appropriate instrument, bank transfer or
electronic transfer. In the event, costs are
not paid within a month, it shall be the duty
of the Collector, Gautam Budh Nagar to
ascertain the fact, whether costs have been
paid by the applicant to the opposite, and if
not, he will immediately recover the sum of
money due in costs as arrears of land
revenue from the applicant and remit the
same to the opposite party in account.

13. Let this order be communicated to
the Additional Principal Judge, Family
Court, Gautam Budh Nagar concerned
through the Principal Judge, Family Court,
Gautam Budh Nagar and to the Collector,
Gautam Budh Nagar by the Registrar
(Compliance).
----------
(2021)10ILR A150
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.09.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

U/S 378CR.P.C. No. 41 of 2021

State of U.P. ...Appellant
Versus
Iqbal Ansari ...Respondent

Counsel for the Appellant:
Sri Arunendra, AGA
Counsel for the Respondent:

(A) Criminal Law
- Appeal against
acquital
-
The
Code
of
criminal
procedure, 1973 - Section 378(3) - grant
of leave to appeal - Indian Penal Code,
1860 - Sections 498-A - Husband or
relative
of
husband
of
a
woman
subjecting her to cruelty, Sections 304-B
- Dowry death - Dowry prohibition
Act,1961 - Section 3/4 .

(B) Indian Evidence Act, 1872 - Section
113-B - Presumption as to dowry death -
The prosecution must at first establish
the
existence
of
the
necessary
ingredients for constituting an offence
under Section 304B, IPC - Once these
ingredients are satisfied, the rebuttable
presumption
of
causality,
provided
under
Section
113B,
Evidence
Act
operates against the accused.(Para - 13)

Marriage
of
deceased
solemnized
with
accused/respondent - 1-1/2 years ahead of
incident
-
accused/respondent
used
to
demand dowry - tortured and harassed
deceased for non fulfillment of dowry - left
deceased
outside
the
house
of
the
complainant (brother of the deceased) in an
unconscious state - complainant came out to
see the deceased - found dead - Trial Court
conclusion - major contradictions in the
statements of the witnesses of facts -
Prosecution
could
not
establish
charges
framed against the accused/respondent -
acquitted the accused/respondent - Stateappellant preferred the present appeal.

HELD:-No factual or legal error in the
appreciation of evidence by the Trial Court .
Material contradiction in the statements of the
witnesses of facts, who are the close relatives
of the deceased . Neither of them remained
stable in their cross-examinations nor they
supported the prosecution version in their
cross-examinations. View taken by the trial
Court is a possible view. Trial Court has given
valid, cogent, convincing and satisfactory
reasons while passing the impugned judgment
and order. (Para -15)