Jayaprakashan Nair G. v. Shyma and Anandharajan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 22[ND] DAY OF FEBRUARY 2022 / 3RD PHALGUNA, 1943** **OP(C) NO. 77 OF 2022** **AGAINST THE ORDER DATED 30.11.2021 IN TP(O.P) NO.35/2021 OF DISTRICT COURT, KOLLAM AND AS 31/2020 PENDING BEFORE THE SECOND ADDITIONAL DISTRICT COURT, KOLLAM** ## **PETITIONER/PETITIONER/APPELLANT:** JAYAPRAKASHAN NAIR G. AGED 71 YEARS S/O.GOPALA PILLAI, J.V.BHAVAN, ULIYACOVIL P.O., KOLLAM - 19 PROPRIETOR, M/S.J.V.BOOK STALL, SAT BUILDING, CUTCHERRY, KOLLAM - 691 019. BY ADVS. S.SREEKUMAR (KOLLAM) K.VIJAYAN PRIYA SHANAVAS R.RAJESH KUMAR ## **RESPONDENTS/RESPONDENTS/RESPONDENTS:** 1 SHYMA AGED 60 YEARS W/O.ANANDARAJAN, RESIDING AT PATTATHUVILA ANANDABHAVANAM, PATTATHANAM CHERRY, KADAPPAKKADA P.O., KOLLAM - 691 008. 2 ANANDHARAJAN AGED 62 YEARS RESIDING AT PATTATHUVILA, ANANDHABHAVANAM, PATTATHANAM CHERRY, KADAPPAKKADA P.O., KOLLAM - 691 008. BY ADVS. PRATHEESH.P ANJANA KANNATH T.S.SREEKUTTY THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 10.02.2022, THE COURT ON 22.02.2022 DELIVERED THE FOLLOWING: O.P(C).No.77/2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C). No.77 of 2022_ ================================ _Dated this the 22[nd] day of February, 2022_ ## _**J U D G M E N T**_ The seminal question arises in this Original Petition filed under Article 227 of the Constitution of India is; whether dismissal of an appeal by a Judge on the premise of hearing the appeal itself when the appellant urges that appeal was not heard on merits instead interim stay application alone was heard on merits and, thereafter, the review petition was allowed and the appeal readmitted for hearing in detail is a reason to find bias on the part of the judge and to stimulate apprehension on the part of the appellant regarding denial of justice from the court. 2. Heard Adv. S.Sreekumar, learned counsel appearing for the petitioner and Adv.Pratheesh, learned counsel appearing for the respondents. 3. Shorn facts necessary for discussion of the case are as O.P(C).No.77/2022 3 under: Appellant urged that When appeal, A.S.No.31/2020 was considered by the learned Additional District Judge, Kollam on 25.11.2020, the learned Judge under the premise of dismissal of I.A.No.3/2020 dismissed the appeal itself without hearing the appellant. Later on, a Review Petition was filed. The same was allowed and the appeal re-admitted for hearing in detail. According to the petitioner/appellant, the Judge declared in open court that there was no scope in the appeal and, therefore, the petitioner believes that he would not get justice from the said court. 4. Alleging the above grounds, the petitioner filed T.P. (O.P) No.35/2021 before the Principal District Court and as per order dated 30.11.2021, the learned District Judge dismissed the petition holding that transfer could only be ordered when the party had reasonable apprehension that justice would be denied to him. The said order is under challenge in this Original Petition. 5. The learned counsel for the petitioner reiterated the contentions raised in the Original Petition as well as the O.P(C).No.77/2022 4 contentions raised before the learned Principal District Judge. The learned counsel pointed out that, if the Additional District Judge, Kollam, hear and dispose of the appeal, the petitioner/ appellant would not get justice. 6. Per contra, the learned counsel for the respondents would urge that the intention behind this Original Petition is to tarnish the morale of the Judge. It is submitted further that though the learned Additional District Judge dismissed the appeal earlier, immediately on filing the Review Petition, he understood the mistake and re-admitted the appeal. In such circumstances, the apprehension at the instance of the petitioner herein is of no avail. 7. This is the context in which the transfer sought for by the petitioner is liable to be addressed. As early in 1957 in the decision reported in [AIR 1957 SC 425], _**Manak Lal v. Dr.Prem Chand Singhyi**_ , the Apex Court while dealing with bias observed as under: _In such cases the test is not whether in fact a bias has affected the judgment; the lest always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the_ O.P(C).No.77/2022 5 _tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done._ 8. In the decision reported in [1963 KHC 360 : 1963 KLJ 781], _**Rev. Fr.Punnen Thomas & anr. v. Moran Mar Bassalios & Ors.**_ , this Court considered the scope of Section 24 of the Code of Civil Procedure within the ambit of reasonable apprehension in the mind of the petitioner, who seeks transfer and it was held that court should be put in the position and in the same situation in which the party himself stood with the knowledge of the facts which the party was acquainted in such a situation. 9. Here I have called for remarks of the learned District Judge, who dealt with the matter. He sent reply with the following remarks: _"xxxx xxxx xxxx xxxx_ _On 15-10-2020, the appellant filed a petition for Temporary/Interim Prohibitory Injunction as I.A.No.3/2020. Ad-interim injunction granted by an ex-parte order dated 20.10.2020 in this I.A.No.3/2020 and notice issued to respondents to appear on 05.11.2020. The respondents appeared, filed objection along with documents and this petition posted for hearing to 09-11-2020. The counsels for petitioner as well as respondents were heard on 09-112020. The appeal was still posted on 25-11-2020 and the above_ O.P(C).No.77/2022 6 _proceedings were done only on the interim injunction petition._ _Since the lower court records already received on 17-09-2020 and the arguments were on merits of the original case matter, the appeal as such was heard instead of the interim injunction application. Hence the appeal advanced suo moto and after hearing both sides this appeal posted for judgment to 25-11-2020. This appeal dismissed as per judgment dated 25-11-2020._ _Thereafter, the appellant filed a review petition as I.A.No.19/2020 stating that on 09-11-2020 the learned counsel for the appellant was arguing only on the interim injunction application. On 24-11-2020 the learned counsel for the appellant produced a copy of judgment passed by the Tribunal for Local Government Institutions. According to him, sufficient opportunities not given for arguing on the merits of the appeal._ _xxxx xxxx xxxx xxxx"_ 10. The learned Additional District Judge also reported that thereafter the review petition was allowed and the matter is pending for hearing on 26.5.2022. He also placed the judgment rendered by him on 25.11.2020 containing 8 pages whereby the learned Judge elaborately discussed the matter and finally dismissed the appeal. In such a case, how the learned District Judge allowed the review petition by a short order: viz., "Heard both sides. Allowed." Thus it appears that the learned District Judge already dismissed the appeal on merits and thereafter allowed the review petition, when the petitioner herein submitted O.P(C).No.77/2022 7 that the appeal was not heard and injunction application alone was heard. 11. I am dissatisfied with the manner in which the learned District Judge dealt with this matter. Why the learned District Judge himself not aware whether he heard the appeal itself or the interim injunction application. If the learned District Judge is sure that he heard the parties for disposing the appeal on merits, he ought not have allowed the review petition, that too, by a nonspeaking order without referring the prayer of allowing a review petition. That shows, by allowing the review petition by a non speaking order, the Judge himself is not sure as to whether he heard the appeal or the interim injunction application before dismissing the appeal itself on merits. As per the report sent by the learned District Judge coupled with the manner in which the review petition was allowed, it is discernible that the District Judge is not sure that he heard the appeal itself on merits, though he dismissed the appeal itself on merits by rendering a judgent having 8 pages. The facts as espoused would go to show that the apprehension of O.P(C).No.77/2022 8 the petitioner in the matter of getting A.S.31/2020 disposed of on merits, in deviation from the earlier judgment dated 25.11.2020 is having force. 12. Going through the facts in this case, I am of the view that, though generally transfer sought on the ground of bias cannot be allowed, a deviation from the general rule is necessary in this particular case since the District Judge already dismissed the appeal on merits without hearing the appeal on merits. In view of the matter, I am inclined to allow this Original Petition. In consequence thereof, the order impugned is set aside. Resultantly, A.S.31/2020 stands transferred to the Principal District Court, Kollam. Accordingly, it is ordered that the learned District JudgeII, Kollam shall transmit the entire case records in A.S.31/2020 pending before that Court to the Principal District Judge, Kollam for hearing and disposing of the matter on merits, untramelled by the observations in the judgment dated 25.11.2020 passed by the IInd Additional District Judge, Kollam. The learned Principal District Judge, Kollam, is directed to dispose of the matter, at any O.P(C).No.77/2022 9 rate, on or before the close of summer vacation. 13. The Original Petition is allowed as above. It is ordered that the IInd Additional District Judge shall be more vigilant, in future in dealing with cases before him to avoid allegation of this nature which have some sort of truth, while recording dissatisfaction the manner in which the learned IInd Additional District Judge dealt with this appeal. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.77/2022 10 ## **APPENDIX OF OP(C) 77/2022** PETITIONER’S EXHIBITS Exhibit P1 Exhibit P1 THE TRUE COPY OF THE APPEAL MEMORANDUM IN AS NO.31/2020 DATED 12/12/2019 OF 2ND ADDITIONAL DISTRICT COURT, KOLLAM. Exhibit P2 THE TRUE COPY OF THE ORDER IN REVIEW PETITION NO.19/2020 DATED 28/01/2021 OF THE 2ND ADDL. DISTRICT COURT, KOLLAM. Exhibit P3 THE TRUE COPY OF THE ORDER DATED 30/11/2021 IN TP(OP) NO.35/2021 OF THE DISTRICT COURT, KOLLAM.