Andhra Pradesh High Court - Amravati
David Vijay Cole vs Kandi on 4 July, 2024
1
APHC010216332024
IN THE HIGH COURT OF ANDHRA
PRADESH
[3366]
AT AMARAVATI
(Special Original Jurisdiction)
THURSDAY, THE FOURTH DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE B SYAMSUNDER
TRANS. CIVIL MISC.PETITION NO: 147/2024
Between:
David Vijay Cole ...PETITIONER
AND
Jupalli Rupa Sylvia Mounica Cole ...RESPONDENT
Counsel for the Petitioner:
1. T V S KUMAR
Counsel for the Respondent:
1. A SYAM SUNDAR REDDY
The Court made the following:
2
THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
TRANSFER CIVIL MISCELLANEOUS PETITION
No.147 of 2024
O R D E R:
I have heard learned Counsel for the petitioner
Mr.T.V.S.Kumar. Heard learned Counsel for the respondent
Mr.A.Syam Sundar Reddy through virtual hearing.
2. This petition is filed by the petitioner/defendant under
Section 24 of the Code of Civil Procedure (in short "CPC"),
seeking transfer of OS No.2 of 2017 on the file of VI Additional
District Court-cum-Family Court, Kadapa to any Court of equal
jurisdiction in Kadapa District Court Head Quarters, by setting
aside the Orders passed by the Principal District Judge,
Kadapa in Tr.OP.No.61 of 2023, dated 02.04.2024.
3. The case of the petitioner in brief is that the learned
Principal District Judge failed to see that there is reasonable
apprehension in the mind of the petitioner and the learned
Principal District Judge in all fairness ought to have transferred
OS No.2 of 2017 from VI Additional District Court, Kadapa to
any other equal jurisdiction in Kadapa District Court Head
Quarters. The petitioner submits that the learned Principal
District Judge failed to see that parties are governed by
adversarial system and every party is entitled for fair play and
any amount of apprehension cause much irreparable loss and
arbitrariness. The main contention of the petitioner is that the
apprehension of propaganda as narrated by the respondent
that everything has been managed, and using high influence
and other back stage methods and the respondent/plaintiff is
openly claiming that the Judgment would be in favour of him
and said situation absolutely creates insecurity, due to that he
is seeking transfer of the case from VI Additional District Court
which failed to consider by the learned Principal District Judge.
He prays to allow the petition.
4. The respondent filed counter-affidavit, denying the
averments in the affidavit of the petitioner. It is the contention
of the respondent that reasons assigned in the grounds are
not sufficient for granting extra-ordinary relief of transfer of the
case from one Court to another Court. The respondent
submits that the petitioner made baseless allegations only
when the Court insisted to comply each and every Docket
Order and refused to grant adjournment in view of long
pendency of the matter. The respondent also stated that it is
settled law that mere such false and frivolous allegations, the
transfer of the case cannot be granted, and if this kind of
transfers are entertained, every person who anticipated defeat
in the legal battle will approach the Hon'ble High Court leveling
false and frivolous allegations against the Presiding Officers,
and if these kind of allegations are entertained and allowed,
that would derogate the dignity of judiciary in the society, more
particularly such act would affect the enthusiasm of the
Presiding Officer in disposal of the cases placed before him.
He prays to dismiss the petition.
5. The learned Counsel for the petitioner would submit
that when the trial is in progress and after reasonable
apprehension, the petitioner sought time for adducing
evidence, but no sufficient opportunity has been given to him,
due to pressure of the Court, the Counsel whom the petitioner
previously engaged withdrew vakalat and no reasonable time
has been given to engage another Counsel, and insisted the
Counsel whom the petitioner engaged to proceed with the
case. He would further submit that no reasonable opportunity
has been given to the petitioner to proceed with the trial, due
to that the petitioner reasonably believe that justice may not be
done to him in the particular Court, if the case is continued
there. He prays to allow the petition.
6. The learned Counsel, representing the respondent
would submit that mere not granting adjournment is not a
ground to transfer the case. He would further submit that as
suit is of the year 2017, the trial Court insisted for speedy
disposal of the case, due to that the petitioner came-up with
frivolous petition, seeking for transfer of the case, which rightly
dismissed by the learned Principal District Judge, and there
are no grounds to transfer the case, and if such petitions are
entertained and allowed, it will thanish the image of the
judiciary. He prays to dismiss the petition.
7. Now the point that emerges for consideration of this
Court is:-
"Whether there are grounds to transfer OS No.2 of
2017 on the file of VI Additional District Court-cum-
Family Court, Kadapa to any other Court of
equivalent jurisdiction in Kadapa District Head
Quarters?"
8. Before going to the merits of the case, it would be
beneficial to quote Section 24 of CPC, which reads as under:
"24. General power of transfer and withdrawal:-
(1) On the application of any of the 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) retransfer 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 purpose 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".
9. A perusal of above referred provision, which makes it
clear that if interest of justice demands, this Court can invoke
jurisdiction under Section 24 of CPC. The Hon'ble Apex Court
in Kulwinder Kaur @ Kulwinder Gurcharan Singh Vs. Kandi
Friends Education Trust and others1, held that "Section 24 of
CPC confers comprehensive power on the Court to transfer
suits, appeals or other proceedings "at any stage" either on an
application by any party or suo motu. Although the
discretionary power of transfer of cases cannot be imprisoned
within a straitjacket of any cast-iron formula unanimously
applicable to all situations, it cannot be gainsaid that the power
to transfer a case must be exercised with due care, caution
and circumspection. It is true that normally while making an
order of transfer, the Court may not enter into merits of the
matter as it may affect the final outcome of the proceedings or
cause prejudice to one or the other side. At the same time,
however, an order of transfer must reflect application of mind
by the Court and the circumstances which weighed in taking
the action. Powers under Section 24 of CPC cannot be
exercised ipse dixit in the manner in which it has been done in
the present case".
10. It is further held by the Hon'ble Supreme Court that the
following factors have to be taken into consideration in a
(2008) 3 SCC 659
situation in which it is the duty of the Court to transfer the
case.
i) balance of convenience or inconvenience to the plaintiff or
defendant or witnesses;
ii) convenience or inconvenience of a particular place of trial
having regard to the nature of evidence on the points
involved in the suit;
iii) issues raised by the parties;
iv) reasonable apprehension in the mind of the litigant that he
might not get justice in the court in which the suit is pending;
v) important questions of law involved or a considerable section
of public interest in the litigation;
vi) interest of justice demanding for transfer of suit, appeal or
other proceeding, etc.
11. For considering the request of the petitioner to transfer
the cases from one Court to another Court on the ground of
judicial bias, there must be reasonable apprehension, which
also laid down in catena of decisions by the Hon'ble Apex
Court.
12. The apprehension of the petitioner in the present case
as set out in Tr.OP No.61 of 2023 filed by him, before the
learned Principal District Judge, Kadapa is at para Nos.3 and
4, which are extracted as under:
"3.It is submitted that the respondent/plaintiff herein filed
OS No.2 of 2017 on the file of Hon'ble VI Additional
District Judge-cum-Family Court, Kadapa, against the
petitioner/defendant herein, seeking partition of the
plaint schedule property therein into two equal shares
and for separate possession of one such share. The
petitioner herein engaged Counsel, filed written
statement and contesting the suit vigorously. Trial of the
suit commenced. PWs.1 and 2 were examined on behalf
of the plaintiff. The suit was posted on 14.12.2023 for
defendant's evidence. On that day, time was sought for
filing evidence affidavit of the defendant. The learned
Presiding Officer of the trial Court posted the suit to
21.12.2023 by imposing costs of Rs.100/-. On
21.12.2023 the petitioner herein, who is defendant, in
the suit, engaged new Advocate by obtaining N.O.C.
from the existing Advocate. Accordingly, on 21.12.2023
vakalat filed and sought time to adduce evidence. The
learned Presiding Officer insisted for adducing evidence
on the same day itself stating that the suit is of 2017
year. However, based on adjournment petition and on
paying cost of Rs.100/- to other side, the suit was
posted to 29.12.2023.
4. It is further submitted that in the meantime, the
respondent herein, who is plaintiff, in the suit and her
men, started making propaganda in and around the suit
schedule property, during first week of December, 2023
onwards, during family get-togethers, occasions and
events, stating that they have managed everything by
exerting high level influence, wielding backstairs
methods, extraneous considerations and well-to-do
means, so much so, that the Judgment in the suit is
going to be pronounced in their favour and that
adducing evidence by the petitioner herein and
consequent arguments in the suit are nothing, but empty
formality only. The suit schedule property involved in the
suit is worth of crores of rupees. Given the propaganda
made by the plaintiff and her men, it gives rise to a
reasonable apprehension in the mind of the petitioner
that he will not get justice fairly in the event the suit is
going to be disposed off by the learned Presiding Officer
of the trial Court. That apart, the insistence and giving
hardly shorter adjournments by the learned Presiding
Officer, for defendant evidence, is adding fuel to the
apprehensions of the petitioner that he will not get
justice impartially in the event of the suit being disposed
off by the learned Presiding Officer of the trial Court. In
view of the above facts and circumstances, the
petitioner has no other option except to seek withdrawal
and transfer of the suit, from the trial Court to any other
equivalent Court, for continuation of trial, arguments and
disposal of the suit in accordance with law and in the
interest of justice, equity and fair play. Hence, this
petition".
13. A perusal of above referred paragraphs with regard to
apprehension of the petitioner, which makes it clear that the
learned trial Judge commenced the trial of the suit, wherein
PW.1 and PW.2 were examined, the plaintiff's side evidence
was closed, and the matter was posted for petitioner/
defendant's evidence, by that time by granting one week time,
and the petitioner herein engaged another Counsel, whom the
learned trial Judge insisted to conduct cross-examination,
which was granted by imposing costs, and adjourned the case
by one week.
14. The first contention of the petitioner is that the trial Court
is insisting for speedy disposal of the case without giving
reasonable opportunity for him to proceed with trial of the
case. A perusal of contents in Para No.3 of the petition in
Tr.OP No.61 of 2023, which itself shows that reasonable time
has been granted for the petitioner to adduce evidence,
though Advocate whom he engaged sought time, which was
granted by imposing costs by adjourning the case for one
week. The another contention of the petitioner is that the
respondent/plaintiff is making propaganda in and around suit
schedule property during first week of December, 2023
onwards with regard to their manage everything to get
favourable Orders from the Court.
15. The said allegations appear to be bald allegations, not
showing any specific incident or the person to whom the
respondent/plaintiff uttered that he managed everything to get
favourable Orders of the Court. As rightly contended by the
learned Counsel for the respondent/plaintiff that as suit is of
the year 2017, which is five years old, the learned trial Judge
is insisting for speedy disposal of the case that appears to be
made the petitioner to file transfer petition without proceeding
with the trial by adducing evidence being a defendant in the
suit. The learned Principal District Judge also discussed the
ratio laid down by the Hon'ble Single Judge of this Court in
Voruganti Prabhakar vs. M/s.Vijaya Laxmi Auto Finance,
Kodad2, which reads as under:
"In the recent past, instances, wherein the parties are
trying to dictate terms to the Courts, are increasing. The
proceedings in a Court are guided by the Code of Civil
Procedure and the Civil Rules of Practice. Many a time,
the trial Court is required to express its opinion on
several aspects, before the proceedings reach finality.
By their very nature, the orders passed, or observations
made during the course of the proceedings may not be
to the expectation or acceptance of both the parties. An
2009 (6) ALT 434
aggrieved party can always agitate his grievance in an
appeal or revision.
Normally, even where the contentions advanced by the
parties, seeking transfer of the proceedings are found to
be untenable, this Court would order transfer of the
proceedings, lest any doubt is left in the mind of the
parties, as to the dispassionate adjudication of the
matter. Over a period of time, some parties are getting
encouraged to make baseless allegations, being
confident that even if they are not substantiated, the
High Court would certainly transfer the suit to another
Court. It is felt that the curtain must be withdrawn to
such practice so that the Courts are not made
vulnerable to unethical practices resorted, to by the
parties and in some cases, their Advocates".
16. The Hon'ble High Court of Telangana in Pooja
Tipirneni - Petitioner Vs. Tipirneni Harsha - Respondent3,
held at paras 6 to 14, which reads as under:
"6. The basic principle governing the grant of relief
under Section 24 of C.P.C. is that it should not be granted readily,
according to the whims and fancies of a litigant, or on the ground
that it casts doubt on the integrity, competence and reputation of
the concerned Judge. Unless and until a sufficiently cogent
ground is shown for transfer of a case from one Court to another,
transfer should be not allowed as a matter of course. The High
2020(2) ALD 385 (TS)
Court has every power to transfer the matters pending in any
Tribunal or Court subordinate to it by exercising powers
under Section 24 of CPC either suo motu or at the request of
either of the parties. When it is at the request of either of the
parties, the High Court may transfer the matter only when there is
sufficient material to show that the party is not likely to get justice
before the Presiding Officer of a particular Court and it is essential
in the interest of justice to transfer such a matter to any other
Court. But unless there are specific instances of bias and unless
the Presiding Officer has personal interest in the subject matter of
the case, he cannot be branded as a biased Officer. This would
demoralize the officers in the eye of the public and it becomes
very difficult for such officers to work in a free and unbiased
atmosphere. The mere apprehension of the petitioners on
imaginary grounds cannot be accepted.
7. In Smt.Zohra Begum and others V. Additional
District Judge, Bareilly and others, 2001 AIHC 1310, it has
been held as follows:
"If every such apprehension is to be accepted, in that
event, all cases in which a lawyer is involved, have to be
transferred outside the Courts or districts in which he /she is
practising. This apprehension that has been expressed is a
subjective one. It cannot be substantiated objectively. Subjective
apprehension is a 2001 AIHC 1310 particular state of mind of a
particular person. Such ground of subjective satisfaction cannot
be accepted. It is settled principle of law that if there is sufficiently
reasonable suspicion, however little it may be, in the mind of the
litigant, in such circumstances, the same has to be taken into
account and weighed with, as a factor for the purpose of deciding
an application under Section 24 of C.P.C. But such suspicion must
have some nexus or some objectivity. If someone comes and says
that he has some suspicion and apprehension in his mind, in that
event, it will be too general a proposition and will destroy the
entire infrastructure of the judicial system. Defeat of a case in the
trial Court cannot be a ground for suspicion. If such a proposition
is accepted, whenever a litigant losses a case, then he will be
asking for transfer of his appeal, and in that event, all appeals are
to be transferred simply on the basis of subjective suspicion on
the part of the appellant. It will be too wide a proposition, which is
very difficult to accept. In view of the settled principle, a suspicion
should be accepted under the judicial norms and principles to be a
suspicion, which could be reasonably harbored by a litigant. The
Court has to find out the situation and the circumstances whether
the suspicion so harbored, could be harbored reasonably by a
sensible man.
8. In Chetak Construction Limited Vs. Om Prakash and
others (1998) 4 SCC 577), the Hon'ble Apex Court deprecated
the practice of making allegations against the Judges and
observed as under:
"Indeed, no lawyer or litigant can be permitted to browbeat
the court or malign the presiding officer with a view to get a
favourable order. Judges shall not be able to perform their duties
freely and fairly if such activities were permitted and in the result
administration of justice would become a casualty and (1998) 4
SCC 577 rule of law would receive a setback. The Judges are
obliged to decide cases impartially and without any fear or
favour. Lawyers and litigants cannot be allowed to "terrorize" or
"intimidate" Judges with a view to "secure" orders which they
want. This is basic and fundamental and no civilised system of
administration of justice can permit it........"
9. In Bhajan Lal, Chief Minister, Haryana Vs. M/s. Jindal
Strips Limited and others(1994) 6 SCC 19), the Hon'ble
Supreme Court of India observed that there may be some
consternation and apprehension in the mind of a party and
undoubtedly, he has a right to have fair trial, as guaranteed by the
Constitution. The apprehension of bias must be reasonable, i.e.
which a reasonable person can entertain. Even in that case, he
has no right to ask for a change of Bench, for the reason that such
an apprehension may be inadequate and he cannot be permitted
to have the Bench of his choice. The Court further held as under:-
"Bias is the second limb of natural justice. Prima facie no
one should be a judge in what is to be regarded as `sua
causa', whether or not he is named as a party. The decision-
maker should have no interest by way of gain or detriment in
the outcome of a proceeding. Interest may take many forms. It
may be direct, it may be indirect, it may arise from a personal
relationship or from a relationship with the subject- matter,
from a close relationship or from a tenuous one."
10. Casting aspersions upon the character, ability or
integrity of the judge/judicial officer/authority undermines the
dignity of (1994) 6 SCC 19 the court/authority and tends to create
distrust in the popular mind and shakes the confidence of the
people in the courts/tribunals, which is of prime importance to the
litigants in the protection of their rights and liberties.
11. In the instant case, the petitioner, in paragraph No.13
of the affidavit filed in support of this petition, averred as follows:
"I do not believe that my child has stated what the judge has
recorded. I have spoken to my son after reading the order of the
Hon'ble Court and he has denied telling the Judge what was
reflected in the order......the Court itself has made sweeping
remarks against me as if I have tutored my son......My son told
me that he was scared of disobeying the directions of the Judge
and he acted as per the directions of the Judge, he gave 'high
five' to his father and hugged him."
The petitioner further averred that the Presiding Officer of
the lower Court has exhibited her bias attitude against the petitioner
by making some observations and thereby pre-judged the case.
12. As seen from the material on record, except making
these bald allegations, the petitioner/wife could not substantiate
her apprehension. Every person has his own way of interacting
the others. The Presiding Officer of the Court below, in discharge
of her judicial functions, interacted with the child and recorded the
findings. There is no need for the presiding officer of the Court
below to record adverse/favourable findings against either of the
parties. Even otherwise, the petitioner/wife did not adduce even a
piece of evidence to substantiate her apprehension that she may
not get justice in the Court where the subject FCOP is pending. In
the cases of this nature, a party has to have a 'reasonable'
apprehension in his/her mind that he might not get justice in the
Court in which the case is pending. The petitioner has failed to
substantiate her apprehension, which seems to be more
imaginary than real. She has failed to mention a single instance
where the learned Judge has disclosed her biased mind or partial
outlook against the petitioner. The order which the learned Judge
has passed or the procedure which she has followed in dealing
with the petition for custody of the child do not suffer from any
short falling or suffer from little lack of power of expression and by
no means constitute any act or conduct, which is indicative of bias
or which may lead to a reasonable apprehension that the
petitioner may receive injustice at the hand of the Presiding
Officer. Mere suspicions and presumptions prevalent in the mind
of the petitioner/wife that she would not get fair trial are baseless.
13. Be it noted that if there is a deliberate attempt to
scandalize a judicial Officer of subordinate Court, it is bound to
shake confidence of the litigating public in the system and has to
be tackled strictly. The damage is caused not only to the
reputation of the concerned Judge, but, also to the fair name of
judiciary. Veiled threats, abrasive behaviour and use of
disrespectful language are often designedly employed with a view
to tame a Judge into submission to secure a desired order. The
foundation of our system is based on the independence and
impartiality of the men having responsibility to impart justice i.e.
Judicial Officers. If their confidence, impartiality and reputation is
shaken, it is bound to affect the very independence of judiciary.
Any person, if allowed to make disparaging and derogatory
remarks against a Judicial Officer, with impunity, is bound to result
in breaking down the majesty of justice.
14. Under these circumstances, this Court finds that the
apprehension in the mind of the petitioner/wife cannot be termed
as a reasonable apprehension and therefore, the ground on which
the subject F.C.O.P. is sought to be transferred cannot be
acceded to. The Transfer Civil Miscellaneous Petition is devoid of
merit and is liable to be dismissed."
17. As rightly pointed out by the learned Principal District
Judge, Kadapa that when the Presiding Officer insisted for
speedy disposal of the case, the petitioner has sought for
transfer of the case, on the ground that no reasonable
opportunity has been given to him to proceed with the trial,
and the respondent/plaintiff is propaganding that she will get
favourable Orders from the Court. These two contentions of
the petitioner cannot be accepted in view of the fact that suit
which is pending before the Court is of the year 2017, which is
seven years old, and this Court and also the Hon'ble Apex
Court are insisting for speedy disposal of the cases of five
years old, due to that the trial Court might have insisted for
proceeding with the trial that made the petitioner to come up
with this petition, seeking for transfer without proceeding with
the trial. With regard to propaganda said to be made by the
respondent, unless any specific instance or the person to
whom the respondent said to be uttered, that itself is not a
ground to transfer the case. Mere allegation that the
respondent said to be proclaiming that she will succeed in the
case without any specific instance or details also cannot be a
ground to consider the request of the petitioner to transfer the
case from one Court to another Court. If the request of the
petitioner is considered to transfer the case, it would
demoralize the Officer, which is not permissible under law.
The apprehension which the petitioner expressed in this
petition in the given circumstances of the case is not a
reasonable apprehension to consider his request to transfer
the case, though the petitioner is seeking for transfer of the
case to the Court situated within the same premises.
18. As discussed supra, for considering the request of the
petitioner to transfer the case from one Court to another Court
on the ground of judicial bias, there must be reasonable
apprehension, and when reasonable apprehension is not
existed, the relief which sought by the petitioner cannot be
granted. This Court did not find any illegality or irregularity in
the findings arrived by the learned Principal District Judge,
Kadapa while dismissing the Tr.OP No.61 of 2023.
19. In the result, this Transfer Miscellaneous Petition is
dismissed. No order as to costs. Consequently,
miscellaneous petitions, if any, shall stand closed. Interim Stay
if any, granted shall stand vacated.
_______________________________
JUSTICE BANDARU SYAMSUNDER
Date: 04.07.2024
Bsv
THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
Date : 04.07.2024
Bsv
