SREEKUMAR R. MENON v. FRANCISA BABYCHAN and ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933** ## **Tr.P(C).No. 396 of 2011** **-------------------------------[OS.NO.606/2010 OF II ADDITIONALSUB COURT, ERNAKULAM]** **....................** ## **PETITIONER:** - **-------------------** **SREEKUMAR R.MENON, MEERAMADHAVAN, NEAR BHAVANS SCHOOL, ELAMAKKARA, ERNAKULAM.** ## **BY ADV. SRI.A.RAJASIMHAN.** ## **RESPONDENTS:** **------------------------** **1. FRANCISA BABYCHAN, REPRESENTED BY THE POWER OF ATTORNEY HOLDER, SUNNY M.D., S/O.M.L.DEVASSY, MEENAYIL PARAMBIL HOUSE, KARTHEDAM, MALIPURAM.** ## **2. FEDERAL BANK,** - **M.G.ROAD, ERNAKULAM, REPRESENTED BY ITS BRANCH MANAGER.** **3. BANK OF INDIA, ERNAKULAM BRANCH, KANNANKERI ESTATE, SHANMUGHOM ROAD, KOCHI-31.** **R1 BY ADV. SRI.BIJU ABRAHAM, R2 BY ADVS.SRI.A.ANTONY, SMT.LEELAMMA ANTONY, R3 BY ADV. SRI.K.K.JOHN.** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **TR.P.(C).NO.396/2011:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** |**ANX.A1**|**TRUE COPY OF THE PLAINT IN O.S. 606/2010**| |---|---| |**ANX.A2**|**TRUE COPY OF THE WRITTEN STATEMENT IN O.S. 606/2010**| |**ANX.A3**|**TRUE COPY OF THE AFFIDAVIT.**| |**ANX.A4**|**TRUE COPY OF THE PLAINT IN O.S. 619/2010.**| |**ANX.A5**|**TRUE COPY OF THE WRITTEN STATEMENT.**| |**ANX.A6**|**TRUE COPY OF THE I.A. NO.6113/2011.**| |**ANX.A7**|**TRUE COPY OF THE OBJECTION.**| |**ANX.A8**|**CERTIFIED COPY OF THE ORDER DATED 27-10-2011.**| |**ANX.A9**|**CERTIFIED COPY OF THE ORDER DATED 27-10-2011.**| ## **RESPONDENT'S ANNEXURES:NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** **Prv.** ## **THOMAS P. JOSEPH, J.** ## **----------------------------------------** **Tr.P(C).No.396 of 2011** **--------------------------------------Dated this 29[th] day of November, 2011** ## **ORDER** First defendant in O.S.No.606 of 2010 of the Court of learned third Additional Sub Judge, Ernakulam is the petitioner before me requesting for a transfer of the case to any other Sub Court at Ernakulam. 2. O.S.No.606 of 2010 is a suit filed by the first respondent through his power of attorney holder for various reliefs including a direction to the petitioner to clear the liability fastened over the suit property in favour of the second respondent for the sum of `.9,00,000/- as on the date of suit. There are other reliefs also prayed for in the suit. Petitioner filed Annexure-A2, written statement contending that all the transactions he had with the second respondent were known to the first respondent. The second respondent/bank filed written statement contending that having regard to the circumstances it is totally incomprehensible how the first respondent purchased the property without seeing the original document of title. After the parties filed written statement, the case was posted for trial in the list. The power of attorney holder of the first respondent Tr.P(C).No.396 of 2011 -: 2 :- was examined as PW1 disregarding the objection of petitioner. Later, petitioner contended that the power of attorney in favour of PW1 is forged and hence the suit is to be closed. In the meantime on the request of the first respondent (on I.A.No.6113 of 2011) he was examined on 14.11.2011. Petitioner filed I.A.No.6262 of 2011 to close the suit as the power of attorney is a forged document. In the meantime, learned Sub Judge passed Annexures-A8 and A9, orders. Feeling apprehensive about certain observations made by the learned Sub Judge in Annexures-A8 and A9, orders petitioner approached this Court with a request for transfer of the case. 3. Learned counsel for petitioner has contended that a reading of Annexures-A8 and A9 would show that learned Sub Judge has already taken a view as to the merit of the case pleaded by petitioner and that is sufficient to give reasonable apprehension in the mind of petitioner as to the fate of contention he has taken in the case. That justifies the request for transfer of the case, it is argued. 4. Learned counsel for first respondent contended that judicial orders passed by the learned Sub Judge cannot be the basis to order transfer. If aggrieved by Annexures-A8 and A9, Tr.P(C).No.396 of 2011 -: 3 :- orders remedy available to the petitioner is to challenge the said orders. Reliance is placed on the decisions in **Industrial C & D.S. Ltd. v. Andru (1991(1) KLT 234)** and **Narniat Pharmaceuticals & Chemicals (P) Ltd. v. Thomson Drugs and Chemicals Ltd. (1992(1) KLT 51)** . Learned counsel for the second respondent is not very much concerned as to the form of trial but is desirous of an expeditious disposal of the suit. 5. Under Sec.24 of the Code of Civil Procedure (for short, "the Code”) if it is found that the party has a genuine apprehension about the decision in the case that affords a ground for transfer of the case. Allegations and counter allegations made in the case concern the alleged suppression of material facts by petitioner while disposing of the property to the first respondent. In Annexure-A8, order dated 27.10.2011 on I.A.No.6113 of 2011 (filed by the first respondent seeking permission to examine himself as witness) learned Sub Judge has observed in paragraph 9 that “in this context, it is also to be noted that this suit originated because of the fraud played by the 1[st] defendant. 1[st] defendant sold the plaint schedule property to the plaintiff without disclosing the liability due to the 2[nd] defendant, bank”. I find that in Annexure-A9, order dated the same day on Tr.P(C).No.396 of 2011 -: 4 :- I.A.No.6262 of 2011 also, learned Sub Judge has observed in paragraph 7, “in this context, it is also to be noted that this suit was originated because of the fraud played by the 1[st] defendant. 1[st] defendant sold the plaint schedule property to the plaintiff without disclosing the liability due to the 2[nd] defendant bank.” 6. I shall advert to the decision which learned counsel for first respondent has referred. In **Industrial C & D.S. Ltd. Vs. Andru (supra)** it is held that merely because a Judge has decided one suit against petitioner that is not a ground for transfer of the other cases and if such a contention is accepted, it would pave way for never ending transfers. A case can be transferred only when the party has reasonable apprehension that justice will be denied to him. Mere suspicion in this regard will not be sufficient. In **Narniat Pharmaceuticals & Chemicals (P) Ltd. v. Thomson Drugs and Chemicals Ltd.** **(supra)** it is held that judicial orders cannot form the foundation of an application for transfer and expression of opinion on the merits during hearing cannot be reduced to the vice of bias. There, it is held that mere presumption or possible apprehension cannot be made the basis of transferring a case from one court to another and an adverse judicial order passed by a judge cannot Tr.P(C).No.396 of 2011 -: 5 :- be made the foundation of an application for transfer under S.24 of the Code of Civil Procedure. 7. Having gone through the above decisions I do not find room for any dispute as to the proposition - an adverse order cannot be a basis for request for transfer. But, as observed in **Industrial C & D.S. Ltd. v. Andru (supra)** if a party has reasonable apprehension that justice will be denied to him, that certainly affords a ground for transfer. That apprehension can arise from the observations made in the judicial orders as well. 8. In the present case, the question involved is as to the alleged suppression of facts made by petitioner and it is seen from Annexures-A8 and A9, orders that even before conclusion of trial, learned Sub Judge has made observations as if the suit is the result of the fraud (allegedly) played by petitioner/first defendant. I am inclined to think that the said observations are likely to cause apprehension in the mind of the litigant as to the ultimate result of the suit. Viewed in that line, I am inclined to think that it is not a mere apprehension but, petitioner has a genuine apprehension as to the possible decision in the case. In that view of the matter I am inclined to think that there is justification in the prayer made by the petitioner requesting for Tr.P(C).No.396 of 2011 -: 6 :- transfer. In the light of the above, request for transfer is allowed. Resultantly this petition is allowed. O.S.No.606 of 2010 is withdrawn from the Court of learned third Additional Sub Judge, Ernakulam and made over to Court of learned Principal Sub Judge for trial and disposal. The transferor court shall transmit records of the case to the transferee court with due intimation to the counsel on both sides as to the date of appearance in the transferee court. I make it clear that I have not expressed any opinion regarding the acceptability or otherwise of the contentions raised by the parties in the suit. Parties may request the learned Principal Sub Judge to dispose of the suit as early as possible. Parties shall appear before the learned Principal Sub Judge on 15.12.2011. **(THOMAS P. JOSEPH, JUDGE)** Sbna/-