Telangana High Court

Pusala Srikanth vs Shirisha Katkojwala on 18 March, 2024

HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                       Tr.C.M.P.No.11 OF 2024

ORDER:

This Transfer Civil Miscellaneous Petition is filed seeking to

transfer FCOP.No.1663 of 2022 on the file of the Principal District

Judge-cum-Family Court, Medchal-Malkajgiri District at

Malkajgiri to any other Court in the State of Telangana.

2. The said F.C.O.P. was filed by the respondent herein-wife

seeking to grant decree of divorce.

3. Heard Sri Anuj Raj, learned counsel for the petitioner and

Sri Kiran Palakurthi, learned counsel, representing Ms. N.Arthi,

learned counsel on record for the respondent.

4. In the affidavit, filed in support of the petition, it is inter alia

averred that the learned Judge has altogether ignored seven memos

filed by the petitioner and also refused to take additional counter on

record.

4.1. It is further averred that the Presiding Officer is taking up

the matter in a very fast pace and proceeding in the matter without

giving reasonable opportunity to the petitioner to defend his case LNA, J

and is also not conducting a fair trial in the subject O.P. Hence, he

sought to transfer the said O.P. from the file of the Principal

District Judge-cum-Family Court, Medchal-Malkajgiri District at

Malkajgiri to any other Court in the State of Telangana.

5. Learned counsel for the petitioner reiterated the averments

made in the affidavit and submitted that by seeing the manner in

which the Presiding Officer is proceeding with the subject O.P., the

petitioner apprehends that justice would not be done to him. Hence,

he prayed to allow this Petition.

6. Learned counsel for the petitioner relied upon the judgment

of the Hon'ble Apex Court in Mohd. Akhtar Vs. State of Jammu

and Kashmir 1, wherein at paras 10 and 11 it is observed as under:-

"10. Needless to say, a fair trial is a sacrosanct principle under Article 21 of the Constitution of India and a "fair trial" means fair to the accused persons, as well as to the victims of the crime. In the instant case, direct victims are the family members of the deceased, although ultimately collective is the victim of such crime. The fair trial commands that there has to be free atmosphere where the victims, the accused and the witnesses feel safe. They must not suffer from any kind of phobia while attending the

(2018) 5 SCC 499(3) LNA, J

court. Fear and fair trial are contradictory in terms and they cannot be allowed to co-exist.

11. Concept of "fair trial", needs no special emphasis and it takes within its sweep the conception of a speedy trial and the speedy trial meets its purpose when the trials are held without grant of adjournment as provided under the provisions contained in Section 309 Cr.P.C."

7. Learned counsel for the respondent submitted that the

present application is on baseless allegations and devoid of any

merits and is nothing but more attempt to protract the matter.

Hence, he prayed to dismiss the petition.

8. Learned counsel for the respondent relied upon the

decisions of the Hon'ble Apex Court in Vaishali Shridhar Jagtap

Vs. Shridhar Vishwanath Jagtap 2 and N.C.V.Aishwarya Vs.

A.S.Saravana Karthik Sha 3.

9. The said decisions relied upon by the learned counsel for the

respondent relates to transfer of cases on the ground of

convenience of the wife and hence, the said decisions are of no

relevance to the present case.

10. To verify the veracity in the version of the petitioner that

the trial Court is not giving him fair opportunity to defend his case

(2016) 14 SCC 356

2022 SCC Online SC 1199 LNA, J

and for the purpose of better appreciation of the case, this Court is

inclined to reproduce the docket orders of the trial Court on various

dates, which are as under:-

"Dated: 31-10-2023 Petitioner present. Respondent absent. Counsel for Petitioner is present. Sri L. Ramu Advocate filed vakalath for respondent with no objection from earlier Counsel on record. For cross of PW1 by respondent Counsel on cost of Rs.1000/- payable to DLSA call on 10-11-2023.

Dated: 17-11-2023 Petitioner present. Respondent absent. Counsels on record are present. There is a direction from the Hon'ble High Court to dispose of the matter expeditiously. Petitioner is examined as P.W-1 on 11.10.2023 and documents are marked on her side and thereafter adjourned to 27.10.2023, 31.10.2023. On 31.10.2023, condition is imposed for cross of PWI by respondent Counsel subject to payment of cost of Rs.1,000/- payable to DLSA. Conditions imposed on 31.10.2023 is not compiled Cross of P.W-1 by respondent counsel is recorded nil. For petitioner's further evidence, if any call on 01.12.2023.

Dated 01.12.2023 Both parties called absent. Counsel for Petitioner is present. Sri Rambabu Advocate filed Vakalat for respondent with consent from earlier counsel on record. Respondent LNA, J

Counsel has filed application under order 18 Rule 17 of CPC. Petitioner Counsel has filed affidavit of PW2. Call on 09 12-2023.

Dated: 18.12.2023 Petitioner absent. Respondent present. Counsel for respondent is present. Recall Petition filed by the respondent is allowed on condition. Application filed by the respondent seeking leave of the court to file additional counter is pending call on 03-01-2024. SR 6824/2023 Notice given memo filed 09-12-2023. For counter, call on 03-01-2024."

11. It is pertinent to note here that this Court, vide order dated

14.07.2023 in CRP.No.1946 of 2023, directed the trial Court to

dispose of the subject FCOP in accordance with law as

expeditiously as possible.

12. From a perusal of the above docket orders of the trial

Court, it is evident that P.W-1 was examined in chief on

11.10.2023 and the case was adjourned for cross-examination of

P.W-1 to 27.10.2023. It was further adjourned to 31.10.2023 and

17.11.2023 for cross-examination of P.W-1 on payment of costs.

The trial Court on 17.11.2023 recorded that the respondent called

absent and the conditional order of payment of costs is not LNA, J

complied with by the respondent. Hence, cross of P.W-1 by

counsel for respondent is recorded NIL.

13. From the above, it is obvious that the trial Court is

following the directions issued by this Court in the Civil Revision

Petition to dispose of the matter expeditiously.

14. Further, it is evident that the respondent was absent on

31.10.2023 and 17.11.2023 on which dates the case was posted for

cross-examination of P.W-1. Even he has not chosen to comply

with the condition of payment of costs. This reflects the attitude on

the part of the respondent in prosecuting the case.

15. With regard to the further contention of the petitioner that

the trial Court refused to take the additional counter filed by him,

as per the docket order dated 18.12.2023 of the trial Court, the

application filed by the petitioner seeking leave of the Court to file

additional counter is pending. Therefore, the said contention of the

petitioner is contrary to the record.

16. The further contention of the petitioner is that the certified

copies of exhibits were furnished to him on 01.12.2023 and the

trial Court recorded the cross-examination of P.W-1 as 'NIL' on

17.11.2023. Here, it is to be seen that the petitioner called absent LNA, J

on 17.11.2023 and he has not complied with the conditional order

of payment of costs imposed by the trial Court. If the petitioner

was not furnished with the certified copies of the required

documents, he should have been present before the trial Court on

17.11.2023 and brought the said fact to the notice of the trial Court.

But, he did not do so. On the other hand, he is attributing bias on

the Presiding Officer of the trial Court without any basis and to

overcome default on his part, which is untenable.

17. Further, it is pertinent to mention that the petitioner filed his

counter after 2 ½ years from the date of filing of the FCOP. One

more aspect worth-mentioning is that after cross-examination of

P.W-1 is recorded as 'NIL' and the chief-affidavit of P.W-2 is

filed, the petitioner filed an application seeking leave of the Court

to file additional counter, which per se reflects his intention to

protract the matter.

18. In the case of Abraham Thomas Puthooran Vs. Manju

Abraham and another 4, 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

2022 SCC Online Ker 77 LNA, J

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."

19. In the light of the above discussion and legal position and as

the allegations made by the petitioner against the Presiding Officer

are contrary to record, the present application filed by the petitioner

is misconceived and devoid of any merit. Further, it is clear that a

case cannot be transferred on the basis of false and frivolous

allegations made against the Presiding Officer without there being

any merit, substance and material.

20. In the present case, except alleging that sufficient

opportunity was not granted to the petitioner in putting forth his

case, no substantial grounds have been raised by him.

Further, it seems that the petitioner filed this Tr.C.M.P. only to

protract the FCOP.