Final Order 3

Order Details: COPY OF ORDER
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T. P. Civil 14/25
RAKESH SETH Vs. RAJ KUMAR ALIAS RAJA BHATNAGER
AND ORS.
07.05.2025
Pr. Sh. Vikram Seth and Sh.Yuvraj Seth, Advocates for
petitioner.
Sh Kuldeep Mansukhani, Advocate for R-1 through VC.
Sh. Zafar Abbas, Advocate for R-3 through VC.
R-5 to R-7 with Sh. Sanjay Kathuria, Advocate.
Vakalatnama has been filed on behalf of R-3.
Arguments heard.
Briefly stated facts of the case are that one execution petition
no. 117/2023 titled “Rakesh Seth vs. Raj Kumar @ Raja Bhatnagar
& Ors.” is pending in the Court of Sh. Somitra Kumar, Ld. District
Judge-06. The sole ground for prayer of transfer of present case is
that in order dated 18.01.2025, Ld. District Judge-06 had passed a
detailed order giving his opinion on almost every aspect and
therefore he has pre-judged the case. In support of his submissions,
Ld. Counsel for petitioner has referred to a judgment titled “State
of W.B. and others vs. Shivananda Pathak & Ors.” (1998) 5 SCC
513 in which it was held that if a Judge is predisposed or suffers
from prejudices or is biased, he disqualifies himself to be acting as
a Judge.
Ld. Counsel for petitioner submits that petitioner is also
aggrieved from the fact that pursuant to order dated 18.01.2025, Ld.
District Judge-06 is proceeding further to take evidence of the
parties and it is submitted that it appears that Ld. Judge is biased as
he has prejudged the issue. Accordingly, it is prayed that the present
execution may be transferred.
The transfer petition has been strongly opposed by Ld.
Counsels for the respondents, who have submitted that petitioner
had challenged order dated 18.01.2025 before Hon’ble High
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Court, who have stayed impugned order only to the extent of
restoration of possession to certain respondents and not the whole
order.
I have considered rival submissions. Perusal of order dated
18.01.2025 reveals that Ld. District Judge-06 simply expressed his
opinion for the purpose of disposal of applications and same does
not affect merits of the case. It appears that Ld. District Judge-06
felt need to pass a detailed order because parties had hotly contested
these four applications and had even referred to large number of
judgments in support of their contentions. A Judge has a duty to
answer every argument and discuss each case law cited by the
parties. However, he has not finally disposed of the matter and
therefore, in para no. 122, he noted that he was of the view that
issues raised in the applications/ objections can be decided only
after evidence is led on behalf of the parties. Therefore, he framed
as many as six issues and directed the parties to lead their
respective evidence. Para 122 of the said order itself reveals that no
final opinion has been given by Ld. District Judge-06. In view of
the fact that he has framed issues and invited evidence, it is enough
to conclude that Ld. District Judge-06 has not prejudged the case. I
find no material on record to hold that Ld. District Judge-06 is
prejudiced. Further, as per Section 38 of CPC, a decree should be
executed by the Court which passed it. Therefore, I find no ground
for transferring execution petition.
Transfer petition is hereby dismissed.
Transfer petition be consigned to Record Room.
(Vinod Kumar)
Principal District & Sessions Judge,
East District, KKD Courts, Delhi/07.05.2025
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