Telangana High Court

Indian Oil Corporation Limited vs Hrb Hotels Ltd. on 19 February, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                    TR.C.M.A.NO.464 OF 2023

ORDER:

This Transfer Civil Miscellaneous Petition is filed under

Section 24 of the CPC, 1908, by the petitioner, who is defendant

in O.S.No.321 of 2022, seeking to withdraw O.S.No.321 of 2022

on the file of the learned XI Additional Chief Judge, City Civil

Court at Hyderabad and transfer the same to any other

Additional Chief Judge in City Civil Court, Hyderabad.

2. The petitioner herein is the defendant and the respondent

herein is the plaintiff in the suit. For the convenience, the

parties are referred to as they are arrayed before the trial Court.

3. Heard Sri T. Jayant Jaisoorya, learned counsel for the

petitioner and Sri V. Seetharama Avadhani, learned counsel for

the respondent.

4. The brief facts leading to filing of the present petition are

that the plaintiff filed the suit vide O.S.No.2849 of 2018 on the

file of the learned XXI Junior Civil Judge, City Civil Court, at

Hyderabad, for ejection against the defendant. Further, one

Sri Pandu Ranga Rao also filed a suit for recovery of possession

vide O.S.No.775 of 2016 on the file of the learned XI Additional LNA, J

Chief Judge, City Civil Court at Hyderabad with respect to same

schedule of property, which is the subject matter of

O.S.No.2849 of 2018 on the file of the learned XXI Junior Civil

Judge, City Civil Court at Hyderabad. Thereafter, the defendant

filed an application under Section 24 of C.P.C vide Tr.O.P.No.34

of 2020 on the file of the learned Chief Judge, City Civil Court at

Hyderabad, seeking to transfer of O.S.No.2849 of 2018 on the

file of the learned XXI Junior Civil Judge, City Civil Court at

Hyderabad to the file of the learned XI Additional Chief Judge,

City Civil Court, Hyderabad to be tried along with O.S.No.775 of

2016, which is pending before the same Court. The said

Tr.O.P.No.34 of 2020 was allowed by order, dated 09.06.2022,

which reads as under:-

"In the result, the petition is allowed withdrawing O.S.No.2849 of 2018 on the file of the XXI Junior Civil Judge, City Civil Court at Hyderabad and transferring the same to the file of the XI Additional Chief Judge, City Civil Court, Hyderabad to be tried along with O.S.No.775 of 2016 either jointly or separately. The XXI Junior Civil Judge, City Civil Court, Hyderabad is directed to transmit the entire record in O.S.No.2849 of 2018 pending on the file of her Court to the Court of the XI Additional Chief Judge, City Civil Court, Hyderabad duly indexed within 10 days from the date of receipt of copy of this order under intimation to this Court."

5. Subsequently, the said O.S.No.2849 of 2018 was

transferred and renumbered as O.S.No.321 of 2022 on the file of

the learned XI Additional Chief Judge, City Civil Court at

Hyderabad. The said matter was coming up for evidence of the LNA, J

defendant. On 22.06.2023, the learned XI Additional Chief

Judge, City Civil Court at Hyderabad closed the evidence of the

defendant. The defendant filed an application to reopen and

recall of defendant evidence. On 03.10.2023, learned counsel for

plaintiff did not appear and the junior counsel on behalf of the

defendant sought time and matter was adjourned to 11.10.2023

for further evidence of the defendant. However, without any

reason and without any intimation to the counsel for the

defendant, the matter was preponed to 06.10.2023 and on

06.10.2023, the learned Court has passed the following order,

which reads as under:-

"Defendant called absent. No representation during call work. Passed over till 04:00 p.m. Plaintiff counsel present and reported that this suit is of 2018 and transferred to this Court as connected suit is pending on the file of this Court. However, defendant did not turn up till 04:00 p.m. Hence, further evidence of defendant closed. For hearing arguments, posted to 13.10.2023."

6. From there, the matter was posted from time to time for

arguments and in the meanwhile, the defendant filed this

present petition on 25.11.2023. This Court, by order dated

05.01.2024, passed an interim order staying of all proceedings

and the same is being extended from time to time.

7. Further, learned counsel for the defendant submitted that

the defendant filed Memo, dated 17.10.2023, for clubbing LNA, J

O.S.No.321 of 2022 with O.S.No.775 of 2016 on the file of the

learned XI Additional Chief Judge, City Civil Court at Hyderabad

and vide Docket order, dated 31.10.2023, the memo filed by the

defendant to club the suits was not considered stating that the

cause of action and the reliefs sought are different. The parties

are the same in O.S.Nos.321 of 2022 and 775 of 2016. The

evidence in O.S.No.321 of 2022 was completed and it was

coming up for arguments, whereas O.S.No.775 of 2016 is at the

stage of filing written statement. Learned counsel appearing for

the defendant did not take steps to challenge the Docket order,

dated 31.10.2023.

8. A perusal of the record shows that O.S.No.775 of 2016

was filed by one Sri Pandu Ranga Rao against the petitioner

herein for recovery of possession, mesne profits and

consequential relief of injunction, whereas O.S.No.321 of 2022

was filed by the respondent for eviction. The relief sought in

both the suits is also different. Further, the learned trial Court

vide order dated 31.10.2023 rejected the Memo filed by the

petitioner herein stating that the cause of action and the reliefs

sought are different, though, the parties are the same and

further, the evidence in O.S.No.321 of 2022 is completed and it

is coming up for arguments, where as O.S.No.775 of 2016 is at LNA, J

written statement stage. It is relevant to note that the decreetal

order dated 31.10.2023 passed by the trial Court order has not

been challenged by the defendant and the same has become

final.

9. The contentions raised in the present petition are that the

trial Court had not granted sufficient opportunities to the

defendant and that there were sixteen (16) adjournments in the

span of two (02) months and despite presence of the defendant

in the month of August, 2023, no adjournment was granted to

the new counsel on record. It is further contended that the

defendant has appeared itself and submitted that they will not

get justice from this trial Court. The learned counsel for the

defendant placed reliance on the judgment of the Hon'ble Apex

Court in the cases of Mangali Satukuri Anjaiah v. Nethi

Rajaiah 1, Kulwinder kaur v. Kandi Friends Education Trust 2

and A V Boys Senior Secondary School v. DAV College

Managing Committe 3.

10. Further, learned counsel for the petitioner, to support his

case, has placed on record the following judgments:

(2003) 2 ALT 665

(2008) 3 SCC 659

(2010) 8 SCC 401 LNA, J

(i) State of West Bengal and others Vs. Shivananda Pathak and Others 4;

(ii) Government of Tamil Nadu Vs. Munuswamy Mudaliar and another 5;

(iii) Abraham Thomas Puthooran Vs. Manju Abraham and another 6; and

(iv) Kinri Dhir Vs. Veer Singh 7

11. In the case of State of West Bengal (supra), the Hon'ble

Supreme Court held at paragraph Nos.25, 26 and 28 as follows:

"25. Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case.

26. Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. In the instant case, we are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of judicial obstinacy conviction.

XxxX

28. If a judgment is overruled by the higher court, judicial discipline requires that the judge whose judgment is overruled must submit to that judgment. He cannot, in the same

(1998) 5 SCC 513

1988 (Supp) SCC 651

2022 SCC OnLine Ker 77 : (2022) 1 KLT 317 : (2022) 1 KLJ 813

2022 SCC OnLine Del 1096 : (2022) 291 DLT 250 LNA, J

proceeding or in collateral proceeding between the same parties, rewrite the overruled judgment. Even if it was a decision on a pure question of law which came to be overruled, it cannot be reiterated in the same proceedings at the subsequent stage by reason of the fact that judgment of the higher court which has overruled that judgment, not only binds the parties to the proceedings, but also the judge who had earlier rendered that decision. That judge may have his occasion to reiterate his dogmatic views on a particular question of common law or constitutional law in some other case but not in the same case, If it is done, it would be exhibitive of his bias in his own favour to satisfy his egoistic judicial obstinacy."

12. In the case of Government of Tamil Nadu v.

Munuswamy Mudaliar (supra), the Hon'ble Supreme Court in

paragraph Nos.11, 12 and 13 has held as follows:

"11. Unless there is an allegation against the named arbitrator either against his honesty or capacity or malafide or interest in the subject matter or reasonable apprehension of the bias, a named and agreed arbitrator cannot and should not be removed in exercise of a discretion vested in the Court under Section 5 of the Act.

12. Reasonable apprehension of bias in the mind of a reasonable man can be a ground for removal of arbitrator. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials....

LNA, J

13. This Court in International Authority of India v. K.D. Bali 8 held that there must be reasonable evidence to satisfy that there was a real likelihood of bias. Vague suspicions of whimsical, capricious and unreasonable people should not be made the standard to regulate normal human conduct. In this country in numerous contracts with the government, clauses requiring the Superintending Engineer or some official of the Government to be the arbitrator are there. It cannot be said that the Superintending Engineer, as such, cannot be entrusted with the work of arbitration and that an apprehension, simpliciter in the mind of the contractor without any tangible ground, would be a justification for removal. No other ground for the alleged apprehension was indicated in the pleadings before the learned Judge or the decision of the learned Judge. There was, in our opinion, no ground for removal of the arbitrator. Mere imagination of a ground cannot be an excuse for apprehending bias in the mind of the chosen arbitrator."

13. In the case of Abraham Thomas Puthooran (supra), the

Hon'ble High Court of Kerala in paragraph No.32 held as

follows:

"When a 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

(1988) 2 SCC 360 LNA, J

who alleges bias to substantiate that his apprehensions are reasonable genuine and justifiable."

14. In the case of Kinri Dhir (supra), the Hon'ble Delhi High

Court in paragraph No.44 placed reliance on Union of India v.

Sanjay Sethi [(2013) 16 SCC 116], wherein the Hon'ble Supreme

Court observed that "in order to uphold a challenge to a

judgment on the ground of bias, it must be found on the facts of

that case that the apprehension be established and not to be

based on mere imagination but on a reasonable doubt that the

decision was affected by bias."

14.1. Further, in paragraph No.45, it was held as follows:

"bias is not an issue which is required to be proved as existing in fact. What is important is to consider whether the facts could give rise to an apprehension of bias. That apprehension can neither be founded on imagination nor can it rest merely on the fact that an adverse decision was rendered. The apprehension would have to be tested from the viewpoint of an ordinary person and whether the material would legitimately give rise to a doubt of whether the judge or the adjudicator would have the ability to decide impartially and fairly."

15. In view of the about judgments, it is clear that a case

cannot be transferred on the basis of frivolous allegations made

against the presiding officer without there being any

substantial, material and grounds.

LNA, J

16. In the present case, except alleging that sufficient

opportunity was not granted to the defendant and that there

were sixteen adjournments in a span of two months, no

substantial grounds have been raised by the petitioner. Insofar

as clubbing of two suits is concerned, as rightly observed by the

trial Court in docket order dated 31.10.2023, the cause of

action and the reliefs sought in O.S.No.321 of 2022 and