Noushad Flourish v. Akhila

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G.AJITHKUMAR ``` ``` THURSDAY, THE 3[RD] DAY OF AUGUST 2023 / 12TH SRAVANA, 1945 TR.APPEAL(C)NO.9 OF 2023 ``` ``` AGAINST THE ORDER OF THE HON'BLE HIGH COURT DATED ``` ``` 31.05.2023 IN TR.P(C) NO.835 OF 2022 AND I.A NO.1 OF 2023 OF THE LEARNED SINGLE JUDGE OF THIS COURT APPELLANT/PETITIONER IN TR.P(C)NO.835OF 2022 AND PETITIONER IN I.A.NO.1 OF 2023: ``` ``` NOUSHAD FLOURISH ``` ``` AGED 47 YEARS S/O.MOHIYUDDIN FLOURISH HOUSE, NEAR MEPPAYUR HIGHER SECONDARY SCHOOL, MEPPAYUR POST, KOZHIKODE DIST, PIN - 673524 ``` ``` BY ADVS. SHAIJAN JOSEPH VARGHESE MUNDACKAL SURUMI SHAKEEL ``` ``` RESPONDENT/RESPONDENT IN TR.P.(C) NO.835OF 2022 AND ACCUSED IN I.A NO.1 OF 2023: ``` ``` AKHILA ``` ``` AGED 37 YEARS, D/O RAZIK, E.V , KALIMA HOUSE, PERINGADI POST, NEW MAHE KANNUR DIST, PIN - 673312 ``` ``` SRI T.ASAF ALI- RESPONDENT ``` ``` THIS TRANSFER APPEAL(CIVIL) HAVING COME UP FOR ADMISSION ON 03.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` 2 ``` Tr.Appeal(C)No.9 of 2023 ## **JUDGMENT** ## Anil K.Narendran, J. This appeal is one filed by the appellant under Section 5 of the Kerala High Court Act, 1958, challenging the final order of the learned Single Judge dated 31.05.2023 in Tr.P.(C)No.835 of 2022 and also the earlier order dated 10.04.2023 in that Tr.P.(C). 2. The appellant filed Tr.P.(C)No.835 of 2022 before the learned Single Judge, invoking the provisions under Section 24 of the Code of Civil Procedure, 1908, seeking transfer of O.P.Nos.367 of 2019 and 389 of 2019 from the Family Court, Thalassery to the Family Court, Vadakara, alleging bias against the Presiding Officer of the Family Court, Thalassery. In that Tr.P.(C), the appellant filed I.A.No.1 of 2023, invoking the provisions under Section 195 read with Section 340 of the Code of Criminal Procedure, 1973 and Section 209 of the Indian Penal Code, 1860 to take cognizance of perjury alleged to have been committed by the respondents and to award special damage of Rs.50 lakhs for defamation. In I.A.Nos.1 and 2 of 2022, the learned Single Judge granted an interim stay of the proceedings ``` 3 ``` Tr.Appeal(C)No.9 of 2023 in O.P.Nos.367 of 2019 and 389 of 2019 pending before the Family Court, Thalassery. That interim order was vacated by the order dated 10.04.2023 (Annexure A2) for the reasons stated therein and the Family Court, Thalassery was directed to proceed with the trail and disposal of O.P.Nos.367 of 2019 and 389 of 2019, in accordance with law, as expeditiously as possible. By Annexure A2 order, the learned Single Judge directed Registry to post the transfer petition and I.A.No.1 of 2023 for disposal, immediately after summer vacation. On 31.05.2023, when the transfer petition came up for consideration, the learned Single Judge dismissed the same for the reason that the Presiding Officer of the Family Court, Thalassery, against whom bias was alleged, has already been retired from service on attaining the age of superannuation and a new officer has already assumed charge of that court. By Annexure A3 order dated 31.05.2023, the learned Single Judge dismissed the transfer petition since the matter has become infructuous for the aforesaid reason. 3. Challenging Annexure A2 order dated 10.04.2023, the appellant filed a writ appeal, invoking the provisions under ``` 4 ``` Tr.Appeal(C)No.9 of 2023 Section 5 of the Kerala High Court Act. On 21.06.2023, when that writ appeal came up for consideration as unnumbered (Filing No.870 of 2023), a Division Bench of this Court passed the following order; “The court finds that there is no need to consider the office objection since the Transfer Petition was disposed of on 31.05.2023.” 4. Now, the appellant is before this Court in this appeal challenging Annexures A2 and A3 orders of the learned Single Judge in the transfer petition. 5. Heard the learned counsel for the appellantpetitioner. 6. As held by a Full Bench of this Court in **Balan v. Sivagiri Sree Narayana Dharma Sanghom Trust [(2005)** **4 KLT 865]** , 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 ``` 5 ``` Tr.Appeal(C)No.9 of 2023 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 illegal and erroneous or carrying grave or substantial injustice. 7. In the instant case, the appellant filed transfer petition before the learned Single Judge, invoking the provisions under Section 24 of the Code of Civil Procedure, 1908, seeking transfer of O.P.Nos.367 of 2019 and 389 of 2019 pending before the Family Court, Thalassery to Family Court, Vadakara, alleging bias against the Presiding Officer of the Family Court, Thalassery. 8. On 31.05.2023, when the transfer petition came up for consideration, the learned Single Judge noticed that the Presiding Officer of the Family Court, Thalassery, against whom bias was alleged, has already been retired from service on ``` 6 ``` Tr.Appeal(C)No.9 of 2023 attaining the age of superannuation and a new officer has assumed charge of that court. Therefore, in Annexure A3 order, while dismissing the transfer petition, the learned Single Judge found that the matter has become infructuous on account of the transfer of the Presiding Officer of the Family Court, Thalassery, against whom the bias was alleged. 9. In **M.S.Sheriff and another v. State of Madras and others [AIR 1954 SC 397]** , a decision relied on by the learned counsel for the appellant, the Apex Court was dealing with a case in which two persons were arrested by two Sub Inspectors of Police. Complaints arose that the arrest and custody of those persons were illegal. A report was submitted by the District Judge following the direction of the High Court. The District Judge reported that the Sub Inspectors did not do anything wrong. The High Court, after examination of the evidence in detail, concluded that the Sub Inspectors stated falsehood in court. In the meantime, one of the arrestees was released on bail and the other remanded to jail. Accordingly, the applications pending before the High Court were dismissed as infructuous. Thereafter, applications were filed seeking to ``` 7 ``` Tr.Appeal(C)No.9 of 2023 prosecute the Sub Inspectors for perjury. The High Court allowed the petitions and directed the Deputy Registrar to file a complaint. Simultaneously, two civil suits were filed against the Sub Inspectors claiming damages for wrongful confinement. In such a situation, the Apex Court held that as between the civil and criminal proceedings, criminal matters should be given precedence. In that case, complaints for prosecution of the Sub Inspectors were filed only after conclusion of the proceedings in which they allegedly had filed false statements. 10. In the instant case, by Annexure A2 order dated 10.04.2023, the learned Single Judge vacated the interim order of stay granted in I.A.Nos.1 and 2 of 2022, for the reasons stated therein and directed the Family Court, Thalassery to proceed with the trial of O.P.Nos.367 of 2019 and 389 of 2019. In paragraph 10 of Annexure A2 order, the learned Single Judge noticed that Presiding Officer against whom bias has been alleged has already retired from service on attaining the age of superannuation and that the petitioner has no right to dictate terms on the court and insist that the application that I.A.No.1 of 2023 to take cognizance for perjury alleged to have been ``` 8 ``` Tr.Appeal(C)No.9 of 2023 committed by the respondents should be heard first before the transfer petition. When the very basis of the transfer petition filed under Section 24 of the Code of Civil Procedure was lost on the retirement of the Presiding Officer against whom bias was alleged, the appellant-petitioner cannot insist that I.A.No.1 of 2023 should be heard first before the transfer petition. Since there was an order of stay in I.A.Nos.1 and 2 of 2022 staying further proceedings in O.P.Nos.367 of 2019 and 389 of 2019 pending before the Family Court, Thalassery, the learned Single Judge cannot be found fault with in vacating the order of stay by Annexure A2 order dated 10.04.2023 and posting the transfer petition and I.A.No.1 of 2023 for disposal immediately after vacation. We find no illegality in the said order of the learned Single Judge. 11. A reading of Annexure A3 order dated 31.05.2023 would not show that the learned Single Judge has already disposed of I.A.No.1 of 2023, which is one filed by the appellant-petitioner to take cognizance of the offence of perjury committed by the respondents. If that application is still pending consideration before the learned Single Judge, it is for ``` 9 ``` Tr.Appeal(C)No.9 of 2023 the appellant-petitioner to pursue that application further. On the other hand, if that application has already been disposed of or closed on 31.05.2023, by a separate order, the remedy open to the appellant is to challenge that order by invoking the provisions under Section 341 of the Code of Criminal Procedure. In the above circumstances, this appeal fails and the same is accordingly dismissed; however, with the observations contained hereinbefore. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- **P.G. AJITHKUMAR, JUDGE** PV ``` 10 ``` Tr.Appeal(C)No.9 of 2023 ## **APPENDIX** |**`Annexure A1`**|**`True copy of Perjury Petition`**|**`True copy of Perjury Petition`**| |---|---|---| |**`Annexure A2`**|**`True copy of the interim order dated 10th`**|| ||**`April 2023 in Tr.P.(C) 835/2022 of this`**|| ||**`Hon'ble Court`**|| |**`Annexure A3`**|**`True copy of the final order dated 31st`**|| ||**`May 2023 in Tr.P.(C) 835/2022`**|**`of this`**| ||**`Hon'ble Court`**|| |**`Annexure A4`**|**`True copy of Tr.P.(C) 835/2022`**||