The Malankara Syrian Christian ... vs Mr.Cijoe M.P
2022 Latest Caselaw 856 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
       THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                             &
         THE HONOURABLE MRS. JUSTICE C.S. SUDHA
  FRIDAY, THE 21 ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943
                 TR.APPEAL(C) NO. 1 OF 2022
 (AGAINST THE ORDER DATED 10.01.2022 IN Tr.PC No.789/2021)


APPELLANTS/RESPONDENTS 1 TO 5:

   1      THE MALANKARA ORTHODOX SYRIAN CHURCH,
          CATHOLICATE PALACE, DEVALOKAM,
          MUTTAMBALAM VILLAGE,
          KOTTAYAM - 686 038, REPRESENTED BY ITS SABHA
          SECRETARY, ADV.BIJU OOMMEN, AGED 52,
          CATHOLICATE PALACE, DEVALOKAM,
          MUTTAMBALAM VILLAGE, KOTTAYAM- 686038
   2      THE MALANKARA SYRIAN CHRISTIAN ASSOCIATION
          MALANKARA ORTHODOX SYRIAN CHURCH,
          CATHOLICATE PALACE, DEVALOKAM,
          MUTTAMBALAM VILLAGE,
          KOTTAYAM - 686 038, REPRESENTED BY ITS
          SECRETARY,
          (PRESENTLY ADV.BIJU OOMMEN, AGED 52,
          S/O.OOMMEN

   3      THE MANAGING COMMITTEE,
          THE MALANKARA SYRIAN CHRISTIAN ASSOCIATION,
          MALANKARA ORTHODOX SYRIAN CHURCH,
          CATHOLICATE PALACE, DEVALOKAM,
          MUTTAMBALAM VILLAGE, KOTTAYAM - 686 038
          REPRESENTED BY ITS SECRETARY, ADV.BIJU
          OOMMEN
   4      THE HOLY EPISCOPAL SYNOD OF MALANKARA
          ORTHODOX SYRIAN CHURCH
          CATHOLICATE PALACE, DEVALOKAM,
                                2
Transfer Appeal(C) No.1/2022

            MUTTAMBALAM VILLAGE,
            KOTTAYAM - 686 038, REPRESENTED BY ITS
            SECRETARY,
            H.G.YOHANON MAR DIASCOROSE, AGED 65,
            CATHOLICATE PALACE,DEVALOKAM,
            MUTTAMBALAM VILLAGE, KOTTAYAM - 686038
     5      H.G. KURIAKOSE MAR CLEEMIS,
            AGED 70 YEARS, HOLY EPISCOPAL SYNOD OF
            MALANKARA ORTHODOX SYRIAN CHURCH,
            CATHOLICATE PALACE, DEVALOKAM,
            MUTTAMBALAM VILLAGE,KOTTAYAM - 686038
            BY ADVS.S.SREEKUMAR
            P.MARTIN JOSE
            P.PRIJITH
            THOMAS P.KURUVILLA
            AJAY BEN JOSE
            MANJUNATH MENON
            R.GITHESH
            SACHIN JACOB AMBAT
            HANI P.NAIR
            ANNA LINDA V.J
            HARIKRISHNAN S.


RESPONDENTS/PETITIONERS 1 & 2 AND RESPONDENTS 6 TO 8:

     1      MR.CIJOE M.P
            AGED 48 YEARS
            S/O.MATHEW P.V., PLAKUNNEL HOUSE,
            THODUPUZHA P.O., THODUPUZHA (TALUK VILLAGE),
            IDUKKI DISTRICT, PIN - 685584
     2      MR.AKHIL CHERIAN
            AGED 27 YEARS
            S/O.CHERIAN GEORGE, POOCHAKUZHIYIL HOUSE,
            MUTTOM P.O., THODUPUZHA,
            PIN - 685587
     3      MORAN MAR BASELIOS MARTHOMA MATHEWS III,
                                3
Transfer Appeal(C) No.1/2022

            AGED 65 YEARS
            THE MALANKARA ORTHODOX SYRIAN CHURCH,
            CATHOLICATE PALACE, DEVALOKAM,
            MUTTAMBALAM VILLAGE,
            KOTTAYAM - 686038
     4      ELDHO BASIL
            AGED 36 YEARS
            S/O.E.M.PAULOSE, ETTONNIL HOUSE,
            PIRAVOM, MUVATTUPUZHA, ERNAKULAM - 686664
     5      ELDHO THOMAS
            AGED 24 YEARS
            S/O.THOMAS, EARETHU HOUSE, PIRAVOM,
            MUVATTUPUZHA, ERNAKULAM - 686664
            BY ADV.SRI.DINESH R.SHENOY

      THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR
ADMISSION ON 17.01.2022, THE COURT ON 21.01.2022 DELIVERED
THE FOLLOWING:
                                       4
Transfer Appeal(C) No.1/2022

            P.B.SURESH KUMAR & C.S.SUDHA, JJ.
             --------------------------------------------------
                    Transfer Appeal(C) No.1/2022
                  -------------------------------------------
                 Dated this the 21 st day of January, 2022

                             JUDGMENT

C.S.Sudha, J.

This appeal filed under Section 5(1) of the Kerala High

Court Act is against the order dated 10.01.2022 in Transfer

Petition (C)No.789/2021. The appellants herein are the

respondents and the respondents herein, the petitioners in the

Transfer Petition. The parties will be referred to as described in

the Transfer Petition.

2. The Transfer Petition was filed seeking transfer of

O.P.No.16/2021 on the file of the Principal Sub Court, Kottayam.

The said O.P. initially filed before the District Court, Kottayam, is

one under Section 92 CPC seeking leave to institute a suit against

the respondents. The District Judge, Kottayam transferred

Transfer Appeal(C) No.1/2022

O.P.No.16/2021 to the Principal Sub Court on administrative

grounds. According to the petitioners, in spite of elaborate and

detailed arguments, running into hours being made on three

posting dates, no order was passed by the learned Sub Judge,

though it was brought to his notice that reliefs sought for are

urgent. Hence, they lost faith in the court and moved the petition

for transfer.

3. In the Transfer Petition though notice was served

on the respondents, they failed to appear and contest the matter.

By order dated 10.01.2022 the learned single Judge allowed the

prayer and directed transfer of O.P.No.16/2021 pending before the

Principal Sub Court, Kottayam, to the District Court, Kottayam,

with a direction to the latter court to dispose it within a period of

15 days from the date of receipt of or production of a copy of the

order. Aggrieved by the said order, the respondents in the Transfer

Petition are before this Court in the present appeal.

Transfer Appeal(C) No.1/2022

4. Heard Sri.S.Sreekumar, the learned Senior

counsel instructed by Adv. Martin Jose for the appellants and Sri.

Dinesh Shenoy, the learned counsel for the respondents.

5. The respondents in the Transfer Petition who are

the appellants herein contend that no case to transfer the case was

made out. The allegations raised against the presiding officer in

the Transfer Petition are baseless. A prayer for transfer of a case is

not to be entertained on the mere asking or on the basis of

unfounded allegations and mere apprehensions levelled against the

presiding officer. Though the report of the presiding officer

concerned was called for, the learned single Judge has not taken

the same into consideration. The impugned order is against the

settled principles of law on transfer of cases based on allegations

of bias of the presiding officer. The respondents in support of their

arguments rely on a Division Bench decision of this Court in

Transfer Appeal (C)No.10/2021 (Abraham Thomas Puthooran

Transfer Appeal(C) No.1/2022

vs. Manju Abraham) and also to the decision of the Apex court

in Gurcharan Dass Chadha vs. State of Rajasthan (1966

KHC 624).

6. Per contra, the petitioners contend that there is no

infirmity in the impugned order of the learned single Judge. They

rely on a Full Bench decision of this court in Balan vs. Sivagiri

Sree Narayana Dharma Sangham Trust (2005 KHC 1860) in

which it has been held that when an appeal is filed against the

order passed under Section 24 by a Single Judge of the High

Court, Division Bench must be reluctant to interfere in the matter

unless it is manifestly illegal and erroneous or carrying grave and

substantial injustice.

7. The petitioners in the Transfer Petition do not

seem to have a case that the presiding officer is prejudiced or

biased. Their only grievance seems to be that the officer is not

passing any orders in O.P.No.16/2021. According to them, though

Transfer Appeal(C) No.1/2022

detailed arguments were advanced on 11.10.2021, 12.10.2021 and

13.10.2021, no orders were passed by the court. In spite of the fact

that the petitioners had brought to the notice of the court that the

reliefs sought for were urgent and precedents had also been cited

in support of the prayers in the petition, the learned Sub Judge

without passing any orders, deliberately, negligently and in a

casual manner kept adjourning the case without even recording

what had transpired in the court. The additional documents that

were produced by the petitioners were not noted or recorded in the

proceedings sheet. The officer also failed to record the fact that the

petitioners had made detailed arguments running into several

hours. The refusal/failure of the presiding officer to pass orders,

raised apprehension in the mind of the petitioners that they would

not get justice from the said court and hence the reason why they

moved the Transfer Petition.

8. The learned single Judge had called for a report

Transfer Appeal(C) No.1/2022

from the Presiding officer of the Sub Court, Kottayam, who has

submitted a report dated 23.12.2021, which reads-

"OP No.16/2021 was made over from the Hon'ble District Court to

this court on 11/10/2021. OP is filed u/s 92 of Civil Procedure Code to grant leave to the petitioner to file a suit in connection with the election of Catholicose and Malankara Metropolitan to be held on 14/10/2021. Original Petition was taken in the Bench on the same day and petitioners were heard in part. Respondent's counsel was also present before the court and both sides were heard also heard on 12/10/2021. Respondents contended that petitioners except one petitioner is not having any interest in the trust and prayed for objection and OP was posted to 13/10/2021. On 13/10/2021, respondents 1 to 3 filed objection and the 4th respondent prayed one day's time for filing objection. OP was filed with prayer to grant permanent prohibitory injunction in the suit in connection with the election of Catholicose and Malankara Metropolitan which was to be held on 14/10/2021. As the OP was filed only three days prior to the date of election, no injunction was granted and the case was posted for return of notice of Respondent No.5 and for filing objection of Respondent No.4 to 21/10/2021.

Thereafter case was adjourned to 02/11/2021. Both sides did not

Transfer Appeal(C) No.1/2022

press for hearing of OP and prayer of the OP has became infructuous. Only on 16/12/2021 the petitioner in the OP filed a today moving petition with an advance petition which was heard on the same day and posted to 18/12/2021 as prayed by the petitioner. On 18/12/2021 both sides were present and OP was advanced to that date. Counsel for petitioner submitted that an amendment petition, impleading petition to implead the additional petitioners and to implead present Catholicose as additional respondents is also filed. Respondents prayed for filing objection. The impleading petitions and amendment petition are now posted to 04/01/2021 for hearing on the maintainability. It will take atleast a period of the two months for passing final order in Original Petition."

9. No reason(s) have been given in the impugned

order for allowing the prayer in the Transfer Petition. There is also

no reference in the impugned order to the aforesaid report. We

fully agree with the argument advanced by Sri.S.Sreekumar, the

learned Senior counsel to the effect that the impugned order has

been passed ignoring the precedents of the Hon'ble Supreme Court

on the point. The Division Bench decision referred to by the

Transfer Appeal(C) No.1/2022

respondents has referred to a number of decisions of the Apex

Court which deprecated the practice of transferring cases from one

court to another on the ground of unsubstantiated allegations

raised against the presiding officer. Here as noticed earlier, the

petitioners have no case that the officer is biased or prejudiced

against them. Their only grievance is that the officer is not passing

any orders. If that be so, they could have very well moved this

Court seeking a direction to the court concerned to dispose of the

matter within a specified time limit instead of moving for a

transfer of the case. As held in Gurcharan Dass Chadha (supra),

a party is entitled to transfer of a case if he shows circumstances

from which it can be inferred that he entertains an apprehension

that justice would not be done. This apprehension must be

reasonable in the circumstances alleged. A mere allegation that

there is apprehension that justice would not be done in a given

case will not suffice. The court which considers the request of

Transfer Appeal(C) No.1/2022

transfer has a further duty to see whether the apprehension is

reasonable or not. That being the position, we are of the opinion

that the learned Single Judge went wrong in allowing the transfer

petition, as no grounds for the same were made out nor are the

grounds referred to in the impugned order.

10. It is true that the learned Sub Judge ought to have

passed orders, as urgent reliefs had been sought for. In the report

the officer says that the relief of injunction as sought for by the

petitioners could not have been granted as the petition had been

filed just three days prior to the election. If that be so, he ought to

have passed orders to that effect instead of adjourning the matter,

which even according to him led to the reliefs sought for

becoming infructuous. Be that as it may, though the impugned

order is without any reason(s), we refrain from setting aside the

same in the light of the Full Bench decision in Balan (supra).

Pursuant to the impugned order, we are told that the learned Sub

Transfer Appeal(C) No.1/2022

Judge has already transmitted the case records in O.P.No.16/2021

to the District Court, Kottayam, and that the latter court has issued

notice to the parties and that the matter now stands posted for

hearing. That being the position, though we disagree with the

relief granted in the impugned order, we do not want the matter to

be delayed any further or to make a mockery of the proceedings

by again ordering re-transfer of the case to the Sub Court. The

District Court may dispose of the matter at the earliest.

The appeal is disposed of accordingly.

Pending applications, if any, shall stand disposed of.

Sd/-

P.B.SURESH KUMAR JUDGE

Sd/-

C.S.SUDHA JUDGE ami/