Pallakkan AbdulSalam v. Thotten Savithri and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 3RD DAY OF JANUARY 2018 / 13TH POUSHA, 1939** **Tr.P(C).No. 646 of 2017** **TO TRANSFER O.S.NO.157 OF 2011 OF THE SUBORDINATE COURT, PAYYANNUR TO ANY OTHER NEARBY SUB COURT** **----------** ## **PETITIONER(S) :** - **PALLAKKAN ABDULSALAM, S/O.ABDULLA HAJI, AGED 45 YEARS, RESIDING AT KOLARI AMSOM, PARIYARAM DESOM, THALASSERY TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.SATHEESHAN ALAKKADAN** ## **RESPONDENT(S):** **1. THOTTEN SAVITHRI, D/O.JANAKI AMMA, AGED 61 YEARS,** - **PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **2. THOTTEN NIRMALA, D/O.JANAKI AMMA, AGED 57 YEARS,** - **PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **3. THOTTEN SARALA, D/O.JANAKI AMMA, AGED 53 YEARS,** - **PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **4. THOTTEN PRABHAVATHI,** - **D/O.JANAKI AMMA, AGED 50 YEARS,** - **PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **5. THOTTEN MEERABAAYI, D/O.JANAKI AMMA, AGED 42 YEARS,** - **PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **..2/-** **..2..** ## **Tr.P(C).No. 646 of 2017** **6. THOTTEN JYOTHILAKSHMI,** - **D/O.JANAKI AMMA, AGED 40 YEARS,** - **PAYYANNUR AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADV. SRI.PHILJO VARUGHESE PHILIPS** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Msd.** ## **Tr.P(C).No. 646 of 2017** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES :** **ANNEXURE A1: A TRUE COPY OF THE PLAINT IN O.S.NO. 157 OF 2011 ON THE FILE OF THE SUB COURT, PAYYANNUR. ANNEXURE AII: A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S.NO. 157 OF 2011. ANNEXURE AIII: A TRUE COPY OF THE LIST OF WITNESS DATED 26.09.2017 FILED BY THE PLAINTIFF. ANNEXURE AIV: A TRUE COPY OF THE AFFIDAVIT AND PETITION, I.A.NO. 826 OF 2017 IN O.S.NO. 157 OF 2011. ANNEXURE 5: TRUE COPY OF THE RETURNED PETITION WITH DOCKET SHEET OF THE PETITIONER WITH THE SEAL OF THE SUB COURT AND ENDORSEMENT OF THE SUB JUDGE.** ## **RESPONDENT(S)' ANNEXURES :** **ANNEXURE R1(A): TRUE COPY OF JUDGMENT DATED 29.08.2017 IN O.P.(C)NO.2634/17 PASSED BY THIS HON'BLE COURT.** **ANNEXURE R1(B): TRUE COPY OF SALE AGREEMENT DATED 11.01.2010.** **//TRUE COPY//** **P.S.TO JUDGE** ## **Msd.** ## ALEXANDER THOMAS, J. ----------------------------- Tr.P.(C).No.646 Of 2017 --------------------------------- Dated this the 3rd day of January, 2018. ## O R D E R The petitioner herein is the plaintiff and the respondents herein are the defendants in O.S.No.157/2011 on the file of the Sub Court, Payyannur. The suit was one for specific performance and in the alternative for return of money. It is further averred that the subject matter of the suit was in respect of 40.75 cents of land @ Rs.6,75,000/- per cent and the total amount involved in the sale transaction was about Rs.3 crores. That when the matter was posted for trial on 4.10.2017, the learned Sub Judge had said in a threatening manner that the petitioner/plaintiff should settle the matter by accepting Rs.25 lakhs and that when the petitioner was not willing for the said arrangement, the learned Sub Judge threatened the petitioner stating that he would not grant a decree for specific performance and that he has got discretionary power, etc., and that the learned Sub Judge also immediately appointed an Advocate Commissioner for taking evidence of the defence on 10.10.2017 and the matter was posted to 11.10.2017 for submitting report of the Advocate Commissioner. That none of the ::2:: Tr.P.(C).No.646 Of 2017 parties has got any difficulty in appearing before the court to adduce evidence and inspite of that without assigning any reason an Advoate Commissioner was appointed prescribing a time schedule and that there was no opportunity in the schedule for examining the witnesses cited by the petitioner in the witness list and no summons was issued, etc. It is further stated that the learned Sub Judge has acted in a biased manner and that the above said context had created serious doubts in the mind of the fairness of the learned Sub Judge, etc. It is in the light of these aspects that the petitioner has filed the present Transfer Petition (civil) with the following prayers: “i) to transfer O.S.No.157 of 2011 on the file of the Subordinate Court, Payyannut yo any other nearby Sub Court. ii) To issue any other order or direction as this hon'ble court may deed fit in the facts and circumstances of the case.” 2. Heard Sri.M.Sasindran, learned counsel appearing for the petitioner/plaintiff and Sri.Philjo Varughese Philips, learned counsel appearing for the respondents/defendants. 3. In the course of the submissions made by both sides, the learned Advocate appearing for the respondents has pointed out that there is major divergence in the very case set up by the petitioner. In furtherance of this submission, it is argued that the case set up by the petitioner in para 4 of the averments in this Transfer Petition is ::3:: Tr.P.(C).No.646 Of 2017 substantially divergent from the case projected in para 3 of Anx.A-4 petition dated 6.10.2017 filed by the petitioner before the court below. It is pointed out in para 4 of the present Transfer Petition that the case is projected as if the incidents in question had happened in the court on 4.10.2017. It is averred in para 4 of the Transfer Petition that the suit was listed on 4.10.2017 and the plaintiff was present with a proof affidavit and an application was filed for the defendants to adjourn the case to a date after 3 days and the said request was allowed. That earlier the matter was mediated between the parties as per the direction of the court through the mediation efforts of an Advocate (Sri.C.Narayanan Nair) and the matter was not settled and that on coming to know about that on 4.10.2017, on which day, the plaintiff was present in the court for adducing evidence, the learned Sub Judge called the plaintiff and directed in a threatening manner to accept the amount paid by the plaintiff and settle the matter and told the plaintiff that he would not grant a decree for specific performance stating that he has got discretionary power. When the learned Sub Judge exceeded his limit unbecoming of a judicial officer, the learned counsel for the petitioner/plaintiff had interfered and the counsel for the petitioner/plaintiff had pointed out that if the court takes a decision ::4:: Tr.P.(C).No.646 Of 2017 even before commencement of the evidence, there is no point in conducting the case before such a Judge and the counsel also stated that he and his party have lost faith with the Judge in view of the above said behaviour on the part of the Judge, etc. Whereas Anx.A-4 is the application filed by the petitioner/plaintiff on 6.10.2017, wherein he has requested the learned Sub Judge to transfer the case to another court as per the reasons stated in para 3 of the application dated 6.10.2017. It is stated in Anx.A-4 dated 6.10.2017 that “today” (viz, 6.10.2017) when the case had come up for consideration, the learned Sub Judge has called the plaintiff as well as the Advocate for the defendants and had discussed the case and had pointed out to the petitioner/plaintiff that he has no scope for succeeding the litigation and that this has led to his loss of faith in the fairness of the court and that the learned Sub Judge may refrain himself from the hearing of the case, etc. On that basis, it is argued by the learned counsel for the respondents/defendants that the very case projected by the petitioner is full of embellishments and contains untrue and incorrect factual versions and that the petitioner has not made out a credible case for urging the plea for transfer of the case. The learned counsel appearing for the respondents would also point out that even in para 3 of the reply ::5:: Tr.P.(C).No.646 Of 2017 affidavit filed by the petitioner, he has not chosen to specify as to whether the alleged incidents had happened in the court on 4.10.2017 as alleged in para 4 of the Transfer Petition or on 6.10.2017 as alleged in para 3 of Anx.A-4 application dated 6.10.2017, etc., and that the petitioner's version lacks credibility, etc. Whereas the learned counsel appearing for the petitioner would point out that even in para 8 of the counter affidavit filed by the respondents it is clearly admitted that the incident of that nature had happened in the court on 6.10.2017 and the counsel for the petitioner has taken the attention of this Court to the para 8 of the counter affidavit filed. In para 8 it is stated that the matter was successfully mediated on 4.10.2017 on which day the case was adjourned to 6.10.2017, that since the matter was not settled, the learned Sub Judge asked as to the reasons for not arriving a settlement in the suit quite casually and the respondents/defendants had then appraised that they were ready for reasonable settlement and even mentioned that the amount that they had offered to the petitioner instead of Rs.25 lakhs, which they have received as advance, etc., and that the petitioner/plaintiff was not prepared for any reasonable settlement for any amount below Rs.1.5 crores and that the counsel for the plaintiff had then responded by stating in the court that if the settlement is effected for any amount below Rs.1.5 crores the petitioner's counsel will lose his client and that ::6:: Tr.P.(C).No.646 Of 2017 respondents were not prepared to accept such unfair demand made on behalf of the plaintiff, etc. It is further stated in para 8 of the counter affidavit of the respondents that, while so, the petitioner without any provocation said that he lost confidence in court and wanted the suit to be transferred, etc. 4. The learned counsel for the respondents placed reliance on the judgment of this Court in Narniat Pharmaceuticals & Chemicals (P) Ltd. v. Thomson Drugs and Chemicals Ltd., reported in 1992 (1) KLT 51, wherein it has been held that the transfer of case from one court to another, casts, indirectly, doubt on the integrity or competence of the Judge from whom the matter is transferred and that it is a serious matter and calls for great circumspection and that mere presumption or possible apprehension cannot be made the basis of transferring a case from one court to another the need to exercise great care and caution springs from the fact that a light hearted transfer may impute an improper or unjustifiable stigma or slur against the court. Furthar that the expression of opinion on the merits of the case after hearing the case for a day gave rise to the allegation of bias and that people subjectively attached to the results of their litigation tend to be oblivious to the fact that expression of tentative opinions on the merits of a case ::7:: Tr.P.(C).No.646 Of 2017 which may be adverse to one and favourable to another is a part of the process of debate, and education and that reasoning is an essential component of judicial process. Therefore, arguments have to be tested by questions, answers, expression of ideas and exchange of thoughts. In this process, expression of views on the subject matter is not only inevitable but necessary for healthy system and without such exchange, dialogue and debate, judicial decision-making will be reduced to a mechanical lifeless exercise. This debate cannot be reduced to the vice of bias and expression of a particular view by a judge in a previous proceeding or in the same proceedings was held not to constitute bias and the reason is that subsequent arguments can persuade the judge to change his views and an adverse judicial order passed by a judge cannot be made the foundation of an application for transfer under Sec.24 of the Code of Civil Procedure. Different classes of people have different notions of bias. But the question cannot be decided on the basis of what sensitive people think about the matter and the fact that the plaintiffs are poor, or illiterate, cannot decide reasonableness of their apprehension and that the apprehension which justifies transfer has to be the apprehension of a reasonable man and not of men and women possessing exceptional sensitivity or susceptibility, etc. ::8:: Tr.P.(C).No.646 Of 2017 5. The learned counsel for the petitioner has placed reliance on certain judgments wherein it was held that ordinarily High Court should hesitate to ascribe any lack of judicial detachment to a subordinate judicial officer, because the officer has no opportunity to reply such observations. At the same time, in considering such matters this Court should put itself in the arm-chair of the party seeking the transfer and consider whether the grounds alleged by him are sufficient to create a reasonable apprehension in his mind that he will not get a fair trial before the particular judge. Reliance has been placed by the learned counsel for the petitioner on certain judgments which have been relied on by this Court in the case in Rev.Fr.Punnen Thomas & anr. v. Moran Mar Bassalios & ors ., reported in 1963 KHC 360 = 1963 KLJ 781 = ILR 1963 (2) Ker. 607, more particularly para 9 thereof, which reads as follows (see KHC report): ".........................I am fully aware that the High Court should hesitate to ascribe any lack of judicial detachment to a subordinate judicial officer, because the officer has no opportunity to reply such observations. At the same time, in considering such matters this Court should put itself in the arm-chair of the party seeking the transfer and consider whether the grounds alleged by him are sufficient to create a reasonable apprehension in his mind that he will not get a fair trial before the particular judge. In this connection I would refer to two decisions of the Patna High Court and an observation of the Supreme Court. In Ram Prasad Mandel v. The king (AIR 1949 Patna 435) a Division Bench of the Patna High Court held that in considering a transfer application, the question whether there was bias on the part of the Judge was not alone material and that it was equally material to consider whether anything happened which might create in the mind of the party an impression that the ::9:: Tr.P.(C).No.646 Of 2017 court was not wholly impartial and disinterested. In the next case Lalita Rajya Lakshmi v. State of Bihar (AIR 1957 Patna 198) the learned Judge observed: " _Therefore, if there are circumstances in a case, which raise a reasonable apprehension in the mind of the person applying for transfer that he would not receive fair dealings at his trial, or, in other words, that he may not have a fair and impartial trial, and may not get justice in the court, where the suit is pending, the case should be transferred. In such a case, in order to decide whether the facts and circumstances are sufficient to raise such a reasonable apprehension in the mind of the party applying for transfer, the court should put himself in such a party's arm chair; and then alone the court is at liberty to place himself in the position of, and the same situation in which, the party himself stood, with the knowledge of all the facts with which the party was acquainted, and, then only the court can see and judge for himself how these facts would have affected the party's mind, and, if they are reasonable and sufficient to raise the reasonable apprehension complained of in the mind of even a reasonable person". ..........................._ ................................." 6. Pursuant to the direction issued by this Court, a detailed report has been furnished by the learned Sub Judge, Payyannur. In para 3 of the said report, it is stated that no such incident as alleged in para 4 of statement of facts in Tr.P.C.No.646/2017 occurred and on 4.10.2017, as the counsel representing defendants requested adjournment and the case was adjourned as per order in I.A.No.813/2017 to 6.10.2017. That on 6.10.2017, when the matter was taken up, the Advocate appearing for the defendants stated that all the defendants are women including senior citizens and they are ready for settlement, but the plaintiff is not willing for any settlement and he even stated that as the defendants are not interested in litigation, they are ready to pay Rs.1 crore to the plaintiff for an amicable settlement though they have received Rs.25 lakhs only in 2010, etc. Further it is stated in the report that the learned Sub Judge acted judiciously as a referral judge as envisaged in Sec.89 of ::10:: Tr.P.(C).No.646 Of 2017 the Code of Civil Procedure, to explore the possibility of settling the disputes between the parties and that even if the parties are not inclined to agree for settlement, the referral judge may try to ascertain the reason for such disinclination in order to persuade and motivate them for settlement. It is accordingly stated that the referral judge explored the possibility of settlement through the parties and counsel in open court and at that time, the counsel for the plaintiff stated that he will relinquish his client's vakalath if the plaintiff accepts the offer of the defendants and he will settle only if defendants pay Rs.1.5 crores to the petitioner/plaintiff and the defendants were not willing for the demand made by the counsel for the plaintiff, so it was decided to take evidence. At that stage the counsel for the plaintiff stated that he has not confidence in the court and requested the transfer the case to which the learned Sub Judge had appraised that he has no powers under Sec.24 of the Code of Civil Procedure and an Advocate Commissioner was appointed to record the evidence of witnesses as the said court is tied up with heavy backlog of civil and criminal matters, etc. Thus, going through the pleadings of both parties as well as from the report furnished by the learned Sub Judge concerned, it is clear that on ::11:: Tr.P.(C).No.646 Of 2017 6.10.2017, the Advocate for the defendants had submitted that they were willing for a reasonable settlement which is rejected by the alleged unreasonable demand made by the plaintiff and that the defendants were even prepared to pay Rs.1 crore as compensation to the plaintiff but that the counsel for the plaintiff had insisted that the plaintiff cannot compromise for not less than Rs.1.5 crores, etc. From the report also it is evident that the learned Sub Judge has only tried his duties as a referral judge for promoting the mediation between the parties. 7. From the pleadings on record and as well as the report of the trial court it is evident that no such incident has happened on 4.10.2017 and even the counsel for the petitioner has stated that the incident has happened only on 6.10.2017 and this is referred to in the report of the trial court concerned. The referral judge only endeavoured to ascertain the possibility of settlement between the parties and it is in the light of these aspects that the entire matter which took place on 6.10.2017 should be viewed. It appears that the plaintiff was really “touchy” and “sensitive” about the compromise and the counsel for the plaintiff was insisting that the matter cannot be compromised for any amount not less than Rs.1.5 crores though the defendants offered to pay Rs.1 crore for settlement. Bona fide attempt made by the trial court ::12:: Tr.P.(C).No.646 Of 2017 concerned in exploring the possibility of settlement and his earnest efforts to explore the possibility of settlement as stated by him in his report would have “touched” the “nerves” of the plaintiff and his counsel which would have led to the scenario in question. Many a time, the responsibility of a referral judge, in order to explore the possibility of settlement, may not be to the liking of the one of the parties concerned. 8. The candid and forthright remarks made by the trial court judge as referral judge would have been misunderstood by the plaintiff and his counsel which led to the unfortunate incidents. The said forthright efforts taken by the referral judge for exploring the possibility of settlement between the parties would have been misunderstood by the parties since the plaintiff was insisting for a higher amount than offered by the defendants and those efforts in that regard could have led to the submission made by the counsel for the plaintiff about loss of confidence in the court, etc and the other unfortunate events that have transpired thereafter. In view of the nature of the unfortunate incident that has happened on 6.10.2017, this Court is of the view, that without getting into the merits of the controversy any further and without getting into the “blame game analysis” , to ensure transparency in the justice delivery system it would only be appropriate and fair to order transfer the case from the present court to the nearest Sub Court concerned. Even the trial court has ::13:: Tr.P.(C).No.646 Of 2017 very clearly submitted in the said report dated 10.10.2017 that the learned Judge has no objection in transferring the said suit to any other appropriate court, etc. Accordingly it is ordered in the interest of justice so as to ensure transparency in the justice delivery system, that O.S.No.157/2011 on the file of the Sub Court, Payyannur, will stand transferred to the Sub Court, Kannur. This order shall not in any manner be construed as an expression of opinion regarding the conduct the learned trial judge and the above directions are issued only for the aforesaid reasons. 9. The learned counsel for the petitioner submits that the petitioner/plaintiff has no objection in recording evidence through the Advocate Commissioner of the Sub Court, Kannur, so that no difficulty or hardship are caused to the defendants. However, the learned counsel for the respondents/defendants would submit that the defendants would prefer that the evidence is adduced before the transferee court itself. In this view of the matter, at the request of both sides, it is ordered that the order issued by the Sub Court, Payyannur appointing an Advocate Commissioner to record the evidence of parties will stand set aside and it is for the transferee court to ensure that expeditious action is taken for taking evidence of the parties and thereafter expeditiously dispose of the suit itself without any further delay. This Court as per Ext.R-1(a) ::14:: Tr.P.(C).No.646 Of 2017 judgment dated 29.8.2017 in O.P.No.2634/2017 filed by the respondents has already directed the trial court to dispose of the suit within three months therefrom. In the light of the said direction issued by this Court in Ext.R-1(a) judgment, the transferee court concerned (Sub Court, Kannur) will take reasonable measures possible under the circumstances to ensure that the suit is disposed of without much delay, at any rate, within a period of 2 months from the date of production of a certified copy of this order. The petitioner will produce a certified copy of this order before the Sub Court, Payyannur, upon which the said court will transfer and transmit the entire case papers and case records to the Sub Court, Kannur. Upon receipt of the case papers and case records, the Sub Court, Kannur, will issue notices to both parties and will thereafter proceed further with the case, in accordance with law. With these observations and directions, the Transfer Petition (Civil) stands finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.