Abraham Thomas Puthooran vs Manju Abraham
2022 Latest Caselaw 1 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                 &
           THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
    MONDAY, THE 3RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943
                  TR.APPEAL(C) NO. 10 OF 2021
 AGAINST THE ORDER DATED 23.09.2021 IN Tr.P(C) 402/2021 OF HIGH
                          COURT OF KERALA
APPELLANT/PETITIONER:

          ABRAHAM THOMAS PUTHOORAN, AGED 50 YEARS
          S/O. LATE A. THOMAS, PUTHOOR ACKAMPARAMBIL,
          MULAKKULAM SOUTH, KOTTAYAM DISTRICT, PIN-686 610
          BY ADVS.
          N.J.MATHEWS
          K.PAUL KURIAKOSE
          ELDO KURIAKOSE
          K.HABEEBULLA

RESPONDENT/RESPONDENTS:

    1     MANJU ABRAHAM,
          D/O. CHACKO THOMAS, 4D, HYMNS OF LIFE, KAKKANAD,
          ERNAKULAM-682 030. (NOW RESIDING AT 23A, DOOR NO.
          X/218-173, NEPTUNE TOWER, TRINITY WORLD,
          CHITTETHUKARA, KAKKANAD, ERNAKULAM 682 037).
    2     RHYEA ABRAHAM,
          D/O. ABRAHAM THOMAS PUTHOORAN, 4D, HYMNS OF LIFE,
          KAKKANAD, ERNAKULAM-682 030. (NOW RESIDING AT 23A,
          DOOR NO. X/218-173, NEPTUNE TOWER, TRINITY WORLD,
          CHITTETHUKARA, KAKKANAD, ERNAKULAM-682 037.

OTHER PRESENT:

          SRI S SREEKUMAR (SR)- RESPONDENTS ;
          SMT R LEELA - RESPONDENTS
     THIS TRANSFER APPEAL(CIVIL) HAVING BEEN FINALLY HEARD
ON 10.11.2021, THE COURT ON 03.01.2022 DELIVERED THE
FOLLOWING:
 Tr. Appeal (C)No. 10 of 2021
                                      2

                                                               "CR"
                                 JUDGMENT

Anil K. Narendran, J.

The appellant is the petitioner in Tr.P.(C)No.402 of 2021,

a petition filed under Section 24 of the Code of Civil Procedure,

1908, seeking transfer of O.P.No.2364 of 2017 pending before

the Family Court, Ernakulam, either to Family Court,

Muvattupuzha or any other Family Court, as this Court may

deem fit, for trial and disposal on merits. The 1 st respondent is

the wife and the 2nd respondent is the daughter of the

appellant. They filed O.P.No.2364 of 2017 against the

appellant, under Section 7(1)(c) of the Family Courts Act,

1984, seeking a decree directing the appellant to return gold

ornaments weighing 70 sovereigns given at the time of

marriage to the 1st respondent or its present value with

interest from the date of marriage till realisation. In the said

original petition they sought various reliefs, including payment

of a sum of Rs.50,00,000/- towards the marriage expenses of

the 2nd respondent. In Tr.P.(C)No.402 of 2021, it is alleged

that, on 07.07.2021, when O.P.No.2364 of 2017 came up for

consideration, the Presiding Officer of the Family Court made

certain observations against the appellant, as stated in Tr. Appeal (C)No. 10 of 2021

paragraph 7 of the Transfer Petition. The learned Single Judge

called for a report from the Presiding Officer of the Family

Court. Pursuant to that direction, the Presiding Officer

submitted a report dated 03.09.2021. After considering the

rival contentions, the learned Single Judge by the order dated

23.09.2021 dismissed Tr.P.(C)No.402 of 2021 with a cost of

Rs.15,000/- and the appellant was directed to deposit cost

before the Family Court, Ernakulam, within a period of two

weeks from the date of the order, for payment to the

respondents. Feeling aggrieved by the order dated 23.09.2021

of the learned Single Judge in Tr.P.(C).No.402 of 2021, the

appellant is before this Court in this Transfer Appeal filed under

Section 5 of the Kerala High Court Act, 1958.

2. On 21.10.2021, when this Transfer Appeal came up

for admission, after hearing the arguments of learned counsel

on both sides, this Court called for the records in O.P.No.2364

of 2017 pending before the Family Court, Ernakulam, including

the memo filed by the Advocate Commissioner with the

request to surrender warrant. The Presiding Officer of the

Family Court has submitted a report dated 01.11.2021,

wherein it is stated that, an Advocate Commissioner was Tr. Appeal (C)No. 10 of 2021

appointed in I.A.No.2700 of 2021 filed by the appellant herein

to call upon the Manager, State Bank of India, M.G. Road

Branch, Ernakulam, to produce certain documents relating to

the safe deposit locker in the joint name of the appellant and

the 1st respondent. The appellant was directed to pay the

Commissioner's Batta and to file memo on 07.07.2021 and the

case was posted to 12.07.2021 awaiting Commissioner's

report. The appellant failed to pay the Commissioner's Batta

and hence warrant could not be issued to the Commissioner.

On 12.07.2021, I.A.No.2700 of 2021 was dismissed since the

appellant failed to pay the Commissioner's Batta.

3. Heard the learned counsel for the appellant and also

the learned Senior Counsel for the respondents.

4. The learned counsel for the appellant would contend

that the conduct of the Presiding Officer of the Family Court,

Ernakulam, referred to in paragraphs 7 to 10 of the statement

of facts of the Transfer Petition has created a fear in the mind

of the appellant that the court below is prejudiced against the

appellant. The conduct of the Presiding Officer in meeting the

1st respondent in Chamber, in the absence of the appellant,

made the appellant to believe that something seriously Tr. Appeal (C)No. 10 of 2021

prejudiced to the appellant dehors the merits of the case had

happened. In the impugned order, while dismissing the

Transfer Petition the learned Single Judge failed to appreciate

the case of the appellant in the right perspective. The learned

Single Judge traverse beyond the scope of a Transfer petition

filed under Section 24 of the Code of Civil Procedure and

entered an arena to which he was never invited or requested.

5. Per contra, the learned Senior Counsel for the

respondents would contend that the order of the learned Single

Judge dismissing the Transfer Petition filed by the appellant,

for the reasons stated in the impugned order dated 23.09.2021

is neither perverse nor patently illegal warranting interference

in this appeal. Since the appellant has not made out a case of

bias on the part of the Presiding Officer, in order to seek an

order of transfer under Section 24 of the Code, the learned

Single Judge cannot be found fault with in rejecting the

Transfer Petition by the impugned order dated 23.09.2021.

6. Section 24 of the Civil Procedure Code, 1908, deals

with general power of transfer and withdrawal and Section 25

deals with the power of the Supreme Court to transfer suits,

etc. As per sub-section (1) of Section 24, on the application of Tr. Appeal (C)No. 10 of 2021

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) re-transfer the same for trial or disposal to the court

from which it was withdrawn.

7. As per sub-section (2) of Section 24 of the Code,

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. As per sub-section (3) of Section 24, for the

purposes of this section, (a) courts of Additional and Assistant

Judges shall be deemed to be subordinate to the District Tr. Appeal (C)No. 10 of 2021

Court; (b) 'proceeding' includes a proceeding for the execution

of a decree or order. As per sub-section (4) of Section 24, 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. As per

sub-section (5) of Section 24, a suit or proceeding may be

transferred under this section from a court which has no

jurisdiction to try it.

8. In Indian Overseas Bank v. Chemical

Construction Co. [(1979) 4 SCC 358], the Apex Court held

that the principle governing the general power of transfer and

withdrawal under Section 24 of the Code of Civil Procedure is

that the court should not lightly change the forum and compel

the plaintiff go to another court, with consequent increase in

inconvenience and expense of prosecuting the suit. A mere

balance of convenience in favour of proceedings in another

court, albeit a material consideration, may not always be a

sure criterion justifying transfer. As compared with Section 24,

the power of transfer of civil proceedings to another court,

conferred on the Apex Court under Section 25 is far wider and

so the amplitude of expression 'expedient in the interest of Tr. Appeal (C)No. 10 of 2021

justice' which furnishes a general guideline for the exercise of

the power. Whether it is expedient or desirable in the interest

of justice to transfer a proceedings to another court, is a

question which depends on the circumstances of the particular

case.

9. In Kulwinder Kaur @ Kulwinder Gurcharan

Singh v. Kandi Friends Education Trust [(2008) 3 SCC

659] the Apex Court held that, Section 24 of the Code of Civil

Procedure empowers a High Court or a District Court to

transfer inter alia any suit, appeal or other proceeding pending

before it or in any court subordinate to it to any other court for

trial and disposal. The said provision 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. On a

reading of Sections 24 and 25 of the Code together and

keeping in view various judicial pronouncements, certain broad Tr. Appeal (C)No. 10 of 2021

propositions as to what may constitute a ground for transfer

have been laid down by courts. They are balance of

convenience or inconvenience to the plaintiff or the defendant

or witnesses; convenience or inconvenience of a particular

place of trial having regard to the nature of evidence on the

points involved in the suit; issues raised by the parties;

reasonable apprehension in the mind of the litigant that he

might not get justice in the court in which the suit is pending;

important questions of law involved or a considerable section

of public interested in the litigation; 'interest of justice'

demanding for transfer of suit, appeal or other proceeding, etc.

Above are some of the instances which are germane in

considering the question of transfer of a suit, appeal or other

proceedings. They are, however, illustrative in nature and by

no means be treated as exhaustive. If on the above or other

relevant considerations, the court feels that the plaintiff or the

defendant is not likely to have a 'fair trial' in the court from

which he seeks to transfer a case, it is not only the power, but

the duty of the court to make such order.

10. In Jitendra Singh v. Bhanu Kumari [(2009) 1

SCC 130] the Apex Court observed that, the purpose of Tr. Appeal (C)No. 10 of 2021

Section 24 of the Code is merely to confer on the court a

discretionary power. A court acting under Section 24 of the

Code may or may not in its judicial discretion transfer a

particular case. Section 24 does not prescribe any ground for

ordering the transfer of a case. In certain cases it may be

ordered suo motu and it may be done for administrative

reasons. But when an application for transfer is made by a

party, the court is required to issue notice to the other side and

hear the party before directing transfer. To put it differently,

the court must act judicially in ordering a transfer on the

application of a party.

11. In Nahar Industrial Enterprises Ltd. v. Hong

Kong and Shanghai Banking Corporation [(2009) 8 SCC

646] the Apex court reiterated that the power under Section

24 of the Code of Civil Procedure cannot be exercised to be ipsi

dixit in the matter in which it has been done. The power to

transfer a case must be exercised with due care, caution and

circumstances.

12. In Kumaon Mandal Vikas Nigam Ltd. v. Girja

Shankar Pant [(2001) 1 SCC 182 : AIR 2001 SC 24], a

decision relied on by the learned counsel for the appellant, the Tr. Appeal (C)No. 10 of 2021

Apex Court held that, the word 'bias' in popular English

parlance stands included within the attributes and broader

purview of the word 'malice', which in common acceptation

means and implies 'spite' or 'ill-will' [Stroud's Judicial

Dictionary, 5th Edn., Vol.3] and it is now well settled that mere

general statements will not be sufficient for the purposes of

indication of ill-will. There must be cogent evidence available

on record to come to the conclusion as to the existence of any

element of bias which has resulted in the miscarriage of

justice. In Locabail (U.K.) Ltd. v. Bayfield Properties Ltd.

[2000 QB 451] the Court of Appeal stated that it would be

rather dangerous and futile to attempt to define or list the

factors which may or may not give rise to a real danger of

bias. Everything will depend upon facts which may include the

nature of the issue to be decided.

13. In Kumaon Mandal Vikas Nigam Ltd. the Apex

Court held that, the test, therefore, is as to whether a mere

apprehension of bias or there being a real danger of bias and it

is on this score that the surrounding circumstances must and

ought to be collated and necessary conclusion drawn therefrom

- in the event however the conclusion is otherwise inescapable Tr. Appeal (C)No. 10 of 2021

that there is existing a real danger of bias, the administrative

action cannot be sustained. If on the other hand, the

allegations pertaining to bias is rather fanciful and otherwise to

avoid a particular court, tribunal or authority, question of

declaring them to be unsustainable would not arise. The

requirement is availability of positive and cogent evidence and

in that context the Apex Court recorded its concurrence with

the view expressed by the Court of Appeal in Locabail (U.K.)

Ltd. [2000 QB 451].

14. In Lalita Rajya Lakshmi v. State of Bihar [AIR

1957 Pat 198] a decision relied on by the learned counsel for

the appellant, a learned Single Judge of the Patna High Court

held that the grounds of transfer under Section 24 of the Code

of Civil Procedure is well established when the superior court is

satisfied that the proceedings in one court constitute an abuse

of the process of the courts; when it is clear that some

prejudice has been created, and that a fair hearing, and an

impartial adjudication, could not be reasonably expected, even

though such a state of things has been brought about by the

conduct of the very party applying for the transfer; where

there is any reasonable ground for supposing that a prejudice Tr. Appeal (C)No. 10 of 2021

against a party's pleader has in any manner or measure

affected the judicial attitude of the court towards the

petitioner, or his case; and if a party feels that he is not likely

to have a fair trial before a particular court. In such a case,

however, it is true that the reasonable apprehension on the

part of the litigant should receive consideration, but at the

same time the apprehension must be such as a reasonable

man might reasonably be expected to have. Therefore, if there

are circumstances in a case, which raise a reasonable

apprehension in the mind of the person applying for transfer,

that he would not receive fair dealings at his trial, or, in other

words, that he may not have a fair and impartial trial, and may

not get justice in the court, where the suit is pending, the case

should be transferred. In such a case, in order to decide

whether the facts and circumstances are sufficient to raise

such a reasonable apprehension in the mind of the party

applying for transfer, the court should put himself in such a

party's armchair; and then alone the court is at liberty to place

himself in the position of, and, the same situation in which, the

party himself stood, with the knowledge of all the facts with

which the party was acquainted, and, then only the court can Tr. Appeal (C)No. 10 of 2021

see and judge for himself how these facts would have affected

the party's mind, and, if they are reasonable and sufficient to

raise the reasonable apprehension complained of in the mind

of even a reasonable person.

15. In Lalita Rajya Lakshmi the learned Single Judge

noticed that, as held in Rex v. Sussex Justices' [(1924) 1

KB 256] it is not merely of some importance, but is of

fundamental importance that justice should not only be done,

but should manifestly and undoubtedly seem to be done. The

learned Single Judge observed that, the pure fountain of

justice must not only remain unsullied from within, but it must

also, even on the surface and outside, appear and actually

remain unpolluted, so that the confidence of the citizens of the

country in the judicial administration of the country may

remain unshaken. Confidence in the court administering justice

on the part of both parties and of the public is a vital element

in the administration of justice. If the admitted facts are apt or

at least are capable of being used, to destroy this confidence,

the supreme needs of justice are clearly such as not to allow

the ordinary course of justice to be left untouched, but to

transfer the cases from such court. It is, as such, not only Tr. Appeal (C)No. 10 of 2021

necessary that justice should be done; it is also necessary that

it should be plain to all including those proceeded against that

it is being done. See: Ram Prasad Mandal v. The King [AIR

1949 Pat 435].

16. In State of Punjab v. Davinder Pal Singh

Bhullar [(2011) 14 SCC 770], on the scope of judicial bias

the Apex Court observed that, there may be a case where

allegations may be made against a Judge of having

bias/prejudice at any stage of the proceedings or after the

proceedings are over. There may be some substance in it or it

may be made for ulterior purpose or in a pending case to avoid

the Bench if a party apprehends that judgment may be

delivered against him. Suspicion or bias disables an official

from acting as an adjudicator. Further, if such allegation is

made without any substance, it would be disastrous to the

system as a whole, for the reason, that it casts doubt upon a

Judge who has no personal interest in the outcome of the

controversy. In Bhajan Lal v. Jindal Strips Ltd. [(1994) 6

SCC 19] the Apex Court 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 Tr. Appeal (C)No. 10 of 2021

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.

17. Section 9 of the Family Courts Act, 1984 deals with

duty of the Family Court to make efforts for settlement. As per

sub-section (2) of Section 9, if, any suit or proceeding, at any

stage, it appears to the Family Court that there is a reasonable

possibility of a settlement between the parties, the Family

Court may adjourn the proceedings for such period as it think

fit to enable attempts to be made to effect such a settlement.

18. In Jain Paul Kuriakose v. Asha Babu [2012 (4)

KLJ 651 : ILR 2012 (4) Ker 839], in the context of Section

9 of the Family Courts Act, a learned Single Judge of this Court

held that, since the family matters are sensitive in character

the Judges of the Family Court have to play a greater

participatory role. Parties will have to be called to the

Chambers at times and this is only to achieve the object

contemplated by the statute. Attempts to settle the matter by

the court or mediators could only be taken as a part of Tr. Appeal (C)No. 10 of 2021

business of the court. Such sincere efforts by the Presiding

Officer cannot be branded as prejudicial by the parties. As

observed by this Court in Balachandran v. Meena [1999 (1)

KLT 769], Family Courts Act constitutes the Judge to some

extent also a conciliator of the dispute. In that process the

Judge is forced to talk to the parties and try to bring them

together. There is nothing wrong in the respondent's request to

have the conciliation talk in the Chambers of the Judge. The

very request of the respondent to advance the case and to

post the same for counselling reveals her wish to have an early

verdict, that too, through the path of peace and harmony.

19. In Anu Bhandari v. Pradip Bhandari [(2018) 6

SCC 389] in the context of Section 9 of the Family Courts Act,

the Apex Court observed that under Section 9 of the Act, the

court has a duty to make an endeavour to assist and persuade

the parties in arriving at a settlement. Unlike many other

legislations, the Legislature has cast a duty on the court in that

regard. The jurisdiction is not just to decide a dispute, on the

contrary, the court also has to involve itself in the process of

conciliation/mediation between the parties for assisting them

not only to settle the disputes but also to secure speedy Tr. Appeal (C)No. 10 of 2021

settlement of disputes. Such timely intervention of the court

will not only resolve the disputes and settle the parties

peacefully but also prevent sporadic litigations between the

parties.

20. In Vishal G.Nair v. Sreedevi P.S. [2019 (5) KHC

323] a learned Single Judge of this Court reiterated the law

laid down in Jain Paul Kuriakose, by holding that Section 9

of the Family Courts Act imposes a solemn duty on the Family

Court to make efforts for settlement of matrimonial disputes,

which are very sensitive and affects not only the parties to the

matrimonial dispute, but the family members, relatives and the

children. Attempt for settlement is definitely for an amicable

settlement of disputes by way of reunion at the first instance

and only in case of failure, for separation on mutually accepted

terms. Though Section 9 imposes an onerous duty on the court

to initiate process of settlement, the law does not prescribe the

extent to which such efforts can be taken forward by the court.

It only says that, the Judge can do so, consistent with the

"nature and circumstances of the case" and for that, he can

follow such procedure as he may think fit and proper. When

the Judge deals with the dispute as a conciliator, he will have Tr. Appeal (C)No. 10 of 2021

to directly interact with both parties in the chamber. In the

course of such attempt, definitely the Judge may have to

express some views, may persuade the parties to express their

respective opinion and in the course of such discussion it is

very likely that factual scenario may be disclosed and the

underlying interest of the parties may also be exposed

unintentionaly. There is a further possibility that he may have

to open up and make few bona fide comments or observations,

which may be closely linked to the facts of the dispute, but are

likely to be misunderstood by the parties, if the settlement

does not take place. In case the attempt for settlement

initiated by the learned Judge fails, that may tend to create an

unwarranted impression in the minds of some parties as it

happened in this case. This calls for striking a perfect balance

between the obligation of the Judge to be an effective settler of

dispute and to maintain the impartiality of an eventual

adjudicator. Hence, it may be advisable that the Judge, while

exercising his duties under Section 9 impress upon both

parties the advantages of settlement and disadvantages of

long drawn litigation and try to assist the parties and persuade

the parties in arriving at a settlement of the dispute. If parties Tr. Appeal (C)No. 10 of 2021

arrive at a settlement, the settlement can be accepted by the

learned Judge. Wherever Judge feels that highly contentious

emotional issues are involved, or he feels that he may have to

delve more into the depth of dispute, touching on the merits, it

will always be better to refer parties to the mediation at that

stage, rather than he himself further adorning the role of

conciliator/mediator. Hence, duty cast on the Judge under

Section 9, reconciled with the duty of the Judge to refer for

mediation as held by the Apex Court, implies that the Judge

shall initiate the parties into a settlement mood and his role

shall not be one involving resolution of contentious facts, in the

process of reconciliation or settlement.

21. In Buvan Mohan Singh v. Meena [(2015) 6 SCC

353] the Apex Court held that the Family Court Judge is

expected to be sensitive to the issues, for he is dealing with

extremely delicate and sensitive issues pertaining to the

marriage and issues ancillary thereto. A Family Court Judge

should remember that the procrastination is the greatest

assassin of the lis before it. It not only gives rise to more

family problems but also gradually builds unthinkable and

everestine bitterness. It leads to the cold refrigeration of the Tr. Appeal (C)No. 10 of 2021

hidden feelings, if still left. The delineation of the lis by the

Family Court Judge must reveal the awareness and balance.

Dilatory tactics by any of the parties has to be sternly dealt

with, for the Family Court Judge has to be alive to the fact that

the lis before him pertains to emotional fragmentation and

delay can feed it to grow. The Family Court Judges shall remain

alert to this and decide the matters as expeditiously as

possible keeping in view the objects and reasons of the Act and

the scheme of various provisions pertaining to grant of

maintenance, divorce, custody of child, property disputes, etc.

22. In the Transfer Petition the case put forward by the

appellant was that he has lost faith, trust and confidence in the

court because the Presiding Officer is prejudiced. The Presiding

Officer was not ready either to hear the submissions or look

into the precedents pointed out by his counsel. The appellant

apprehended that there will be no meritorious disposal of the

cases. On 7.7.2021, when the counsel for the respondents

insisted for a consideration of an application through the

virtual court, the Presiding Officer directed the counsel and the

parties to be present in the physical court on the same day at

1.00 p.m. Then the Presiding Officer pressurised the appellant Tr. Appeal (C)No. 10 of 2021

to pay the arrears of maintenance. When his counsel tried to

oppose the direction, the Presiding Officer adjourned the cases

to 12.07.2021 but observed that "if you are sticking onto your

earlier stand even now, I will show you". The said observation

was unwarranted, which reveals that the Presiding Officer is

biased. After the sitting was over, an office staff made

enquiries about the 1st respondent. The appellant told the staff

that the 1st respondent had left. The staff said that the

Presiding Officer wanted to meet the 1 st respondent in the

chambers, which surprised the appellant, since meeting a

party to a dispute in the chambers, without notice to the other

side, was unfair. Therefore, the appellant was constrained to

believe that something seriously prejudicial to him dehors the

merits of the case is bound to happen. In Rajnesh v. Neha

[(2021) 2 SCC 324] the Apex Court has observed that in

maintenance cases the applicants should file a concise affidavit

disclosing their assets, which has not been complied with by

the respondents. The court is not paying heed to the non-

compliance of the above direction. On 12.7.2021, when the

cases were called in the virtual court, the Presiding Officer

again directed both parties to be present in the physical court. Tr. Appeal (C)No. 10 of 2021

The Presiding Officer was reluctant to hear the submission of

the appellant and insisted him to bring his counsel who was

laid up. The Presiding Officer declared in the open court that

she had not called the 1st respondent to meet her in the

chambers, but later in the virtual court she admitted that she

had enquired about the 1st respondent to explore the possibility

of a settlement. The observations, acts and omissions of the

Presiding Officer are neither judicial nor judicious. Hence the

appellant seeks transfer of O.P.No.2364 of 2017 to the Family

Court, Muvattupuzha or any other Family Court.

23. The learned Single Judge called for a report from

the Presiding Officer of the Family Court, Ernakulam, who has

submitted a report dated 03.09.2021, wherein it is stated as

follows:

"When the matters came up for hearing on 07.07.2021 specific orders were passed by this Court in M.P.No.355 of 2021 filed by the respondent for summoning a witness and an Advocate Commissioner was appointed to inspect the joint bank locker of the couple. On that day, submissions were made from both sides to further explore the possibility of an amicable settlement in the matter and both sides requested the matter to be considered in Chamber counselling on a further date.

That time regular pre-adalath talks were being chaired by Tr. Appeal (C)No. 10 of 2021

Smt.N.Leelamani, former Judge, Family Court, in respect of family court cases. Due to pressure of work, a chamber counselling on a near date was found impossible and instead, I thought it better to refer the parties for pre-adalath talks. So after retiring to chamber and on ascertaining that Smt.Leelamani was still conducting pre- adalath talk session, I sent my staff attached to pre- adalath matters to verify whether the parties left the premises so as to send them for pre-settlement talk on that day itself. As I was told that one of the parties has left the court premises, the matter could not be referred for pre-adalath talks on that day. This is what actually happened on 07.07.2021. The enquiry made by my staff about the presence of parties for enabling settlement talk by the Judicial member is twisted and misinterpreted by the respondent in such a way that I have called his wife, the petitioner to my chamber. There was no occasion for me to call any of the parties to my chamber and it is not needed at all. I did not do any act or omission either non- judicious or non-judiciary as alleged. In fact, it was the respondent/complainant who once sought permission to meet me in chamber when I very specifically directed the Commissioner to complete the recording of evidence and to submit report. Since he is a party litigant in the given case, permission was not accorded to him."

24. In the impugned order the learned Single Judge

noticed that the trial in O.P.No.2364 of 2017 commenced on

13.02.2019 and the respondents' evidence was closed on

18.01.2020. RW2 was examined on 11.01.2021. Although the Tr. Appeal (C)No. 10 of 2021

appellant was cross examined on four postings, recording of

his evidence was not completed. The appellant's evidence was

closed on 06.07.2021. On 07.07.2021, that the appellant filed

Annexure A10 application to summon additional documents

and recall RW2. On the same day, the Court appointed an

Advocate Commissioner to obtain the documents and directed

the appellant to deposit commission batta. But the appellant

failed to comply with that condition. Therefore, the Family

Court dismissed that application on 12.07.2021. The appellant

has not challenged that order.

25. In Shiju Joy A. v. Nisha [2021 (2) KHC 462], a

decision relied on by the learned Senior Counsel for the

respondents, a Division Bench of this Court issued various

directions to the Family Courts for expeditious disposal of

pending matters. As per the said decision, the Presiding

Officers shall take immediate steps to refer all pending cases

to mediation, if not referred so far.

26. In the impugned order, the learned Single Judge

noticed that, the trial in O.P.No.2364 of 2017 commenced on

13.02.2019, i.e., 2½ years back, but the cases have not

reached anywhere. Therefore, this is a fit case in which the Tr. Appeal (C)No. 10 of 2021

Family Court has to follow the special list system, as directed

by this Court in Shiju Joy. A. The learned Single Judge

noticed that, in Annexure A6 judgment dated 31.08.2016 in

O.P.(Crl.)No.443 of 2016 this Court specifically directed the

Family Court to refer the parties to mediation, in the event of

both sides making a request for the same.

27. In Sini v. Suresh Jyothi [(1996) 1 KLT (SN)

13 : AIR 1996 Ker 160] a Division Bench of this Court

observed that mere apprehension of the petitioner-appellant is

not sufficient to transfer a case from the file of the court to

another. A reading of the said decision would show that, in that

case the ground raised for transfer of O.P. (HMA) No.395 of

1995 from the Family Court, Thiruvananthapuram to the Family

Court, Kollam, was that the Presiding Officer of the Family

Court, Thiruvananthapuram made certain comments adverse

to the interest of the appellant and she apprehends that she

will not get justice from that court. The learned Single Judge

held that no personal bias or ill will is attributed against the

Presiding Officer of the Family Court and on the basis of flimsy

ground the case cannot be transferred to another court. Before

the Division Bench, the learned counsel for the appellant Tr. Appeal (C)No. 10 of 2021

contended that the opposite party had telephoned to the

appellant's father that the husband would secure favourable

orders from the Family Court. The Division Bench noticed that

the appellant had no case that the Presiding Officer of the

Family Court passed any adverse order. Mere apprehension of

the appellant is not sufficient to transfer a case from the file of

the court to another. Before the Division Bench, the learned

counsel for the appellant further contended that the Presiding

Officer of the Family Court is pressurising the appellant to

settle the criminal case pending between the parties and

persuading her to stay with her husband. The Division Bench

observed that, if any persuasion to settle the matter was made

by the court, that could only be taken as a part of the business

of the court. As regards every proceedings before the Family

Court, it is the duty of the Presiding Officer to make earnest

endeavour to settle the matter. If any such sincere effort is

made by the Presiding Officer, parties shall not interpret it as a

coercive step to come to some terms, and on that basis, the

case pending before one court cannot be transferred to

another court, especially when the parties on either side reside

in the same city and the court is nearby to their residence. Tr. Appeal (C)No. 10 of 2021

28. In the impugned order, the learned Single Judge

noticed that, on 07.07.2021, both parties made a request to

the Presiding Officer to hold a chamber counselling. The

Presiding Officer thought it fit to refer the parties to a former

Judge, who holds pre-adalath talks within the court complex.

After confirming the availability of the former Judge, the staff

enquired whether the 1st respondent was present in court. In

the impugned order, the learned Single Judge found nothing

wrong in the procedure adopted by the court to refer the

parties for conciliation, since Section 9 of the Family Courts Act

and the law on the point mandate that the Presiding Officer of

the Family Court shall at any time of the proceeding explore

the possibilities of a settlement. The learned Single Judge

noticed that, it is the above enquiry that has irked the

appellant and been blown out of proportion. The appellant has

not substantiated whether the Presiding Officer has actually

spoken to the 1st respondent in her chambers between

07.07.2021 to 12.07.2021. Even otherwise, as held by this

Court Sini [(1996) 1 KLT (SN) 13] and Jain Paul

Kuriakose [2012 (4) KLJ 651], talking to a party in the

chamber by the Presiding Officers of the Family Courts is part Tr. Appeal (C)No. 10 of 2021

of the business of that court.

29. The learned counsel for the appellant would contend

that the observation by the Presiding Officer after hearing

Annexure A7 petition in part, without reference to the

decisions referred to in Pathumma v. Cholamarakkar [2008

(3) KLT 887], Yousuff v. Nafeesakutty [2020 (1) KLT

369] and Abhilasha v. Parkash [2020 (6) KLT 341 (SC)]

in the context of Section 125(1)(c) of the Code of Criminal

Procedure, 1973 was quite unwarranted and clearly reveals

bias of the Presiding Officer of the Family Court, either in

respect of the subject matter involved or in favour of the

respondents herein.

30. The appellant has no case that the Family Court has

passed any orders contrary to the law on the point. Passing of

an erroneous order by a court is not a ground for transfer

under Section 24 of the Code and it is for the aggrieved party

to challenge that order before the appellate or revisional court

by filing an appeal or revision or by invoking the supervisory

jurisdiction under Article 227 of the Constitution of India.

31. In paragraph 30 of the impugned order, the learned

Single Judge observed that, though for the last five years the Tr. Appeal (C)No. 10 of 2021

appellant had reposed faith and trust in the court it was only

due to the alleged two incidents on 07.07.2021 and

12.07.2021 he cries out the foul of bias. The learned counsel

for the appellant would point out that the present Presiding

Officer of the Family Court took charge much after the filing of

O.P.No.2364 of 2017. In paragraph 26 of the impugned order,

the learned Single Judge observed that, despite this Court

passing Annexure A6 judgment dated 31.08.2016, directing

the appellant to pay interim maintenance to the respondents at

the rate of Rs.25,000/- per mensum, not a single Rupee has

been till the date of the impugned order. Instead the appellant

has raised untenable objections to Annexure A7 execution

petition filed by the respondents to realise an amount of

Rs.4,80,000/- due towards arrears of interim maintenance.

The learned counsel would further point out the observation

made by the learned Single Judge in paragraph 32 of

impugned order as to the antecedents of the appellant and

non-compliance of Annexure A6 judgment, etc. As rightly

pointed out by the learned counsel for the appellant, the 1 st

respondent in Annexure A7 petition has admitted that she had

received Rs.7,70,000/- after Annexure A6 order. The appellant Tr. Appeal (C)No. 10 of 2021

has stated in Annexure A8 counter affidavit that he had paid

Rs.8,84,910/- as on 12.10.2020. Therefore, Annexure A8

would reveal substantial payments made by the appellant to

the 1st respondent. Therefore, we find that the above

observations made by the learned Single Judge in the

impugned order dated 23.09.2021 are unwarranted.

32. When transfer of a case is sought on the allegation

of bias of the Presiding Officer of a court or on the ground of

fear of not getting justice, it becomes the bounden duty of the

court to ascertain as to whether the ground of transfer has

been substantiated by the litigant or not, since transfer of a

case on such grounds casts aspersion upon integrity and

competence of the Presiding Officer. A petition filed under

Section 24 of the Code seeking transfer of case shall not be

based on conjectures and mystic maybes. The onus is on the

person who alleges bias to substantiate that his apprehensions

are reasonable genuine and justifiable.

33. In the instant case, the appellant filed the Transfer

Petition invoking the provisions under Section 24 of the Code,

without a reasonable apprehension of bias. The learned Single

Judge, in the impugned order dated 23.09.2021, found that Tr. Appeal (C)No. 10 of 2021

the aspirations are without bona fides or substantial materials,

which are only a ruse to further protract the proceedings.

Therefore, the learned Single Judge dismissed the transfer

petition with cost of Rs.15,000/-.

34. In Balan v. Sivagiri Sree Narayana Dharma

Sanghom Trust [(2005) 4 KLT 865] a Full Bench of this

Court held that, when an application for transfer or withdrawal

of a suit from one court is made under Section 24 of the Code

of Civil Procedure, the court has to adjudicate that matter

regarding transfer or withdrawal after issuing notice to the

parties interested and after giving an opportunity of hearing.

An order passed after such an adjudication is certainly

appealable under Section 5(i) of the Kerala High Court Act. The

Full Bench held further that, even though an order passed at

the instance of one party to the suit by the single Judge under

Section 24 of the Code is appealable under S.5(i) of the Kerala

High Court Act, a word of caution is also necessary. When an

appeal is filed under Section 5(i) of the Kerala High Court Act

against the order passed under Section 24 of the Code of Civil

Procedure by a learned Single Judge, the Division Bench must

be reluctant to interfere in the matter unless it is manifestly Tr. Appeal (C)No. 10 of 2021

illegal and erroneous or carrying grave or substantial injustice.

35. Viewed in the light of the law laid down in the

decision referred to supra, we find no reason to interfere with

the impugned order of the learned Single Judge, since the

appellant has not made out a case warranting interference in

exercise of the appellate jurisdiction of this Court under

Section 5 of the Kerala High Court Act.

In the result the appeal fails and the same is accordingly

dismissed, subject to the observation in paragraph 31. No

order as to costs. Registry to return the LCR.

Sd/-

ANIL K. NARENDRAN, Judge

Sd/-

P.G. AJITHKUMAR, Judge

bkn/-