Tr.P(C).No. 788 of 2017 (O.S. No. 17/2015, Sub Court, Kasaragod)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 10TH DAY OF JANUARY 2018 / 20TH POUSHA, 1939** **Tr.P(C).No. 788 of 2017** **OS 17/2015 of SUB COURT, KASARAGOD** **PETITIONERS/PLAINTIFFS EXCEPT 8,11 & 12:** **1 MADHAVAN NAMBIAR, AGED 77 YEARS, S/O KUNHAMBU NAIR AND MELOTH LAKSHMI AMMA, RESIDING AT KODOTH HOUSE, KUNDAMKUZHI, BEDADUKKA VILLAGE OF KASARGOD TALUK-671542.** **2 M. GANGADHARAN NAMBIAR, AGED 74 YEARS, S/O KUNHAMBU NAIR AND MELOTH LAKSHMI AMMA, RESIDING AT NEELAGIRI, KOOTHUPARAMBA, KANNUR DISTRICT-671320.** **3 ANANTHAN NAMBIAR, AGED 69 YEARS, S/O KUNHAMBU NAIR AND MELOTH LAKSHMI AMMA, RESIDING AT KOTTRAKKARA BHAVAN, P.O. KANATHUR, MULIYAR VILLAGE OF KASARGOD TALUK.** **4 M. VIJAYAN NAMBIAR, AGED 68 YEARS, S/O KUNHAMBU NAIR AND MELOTH LAKSHMI AMMA, RESIDING AT SURABHI, NEAR G. H. S. PAYYANNUR, P.O. PAYYANNUR, TALIPARAMBA TALUK-670307.** **5 M. INDIRA, AGED 63 YEARS, W/O LATE JANADHANAN NAMBIAR, RESIDING AT KOTTARAKARA BHAVAN, P.O. KANATHUR, MULIYAR VILLAGE OF KASARGOD TALUK-671542.** **6 M. PAVITHRAN NAMBIAR, AGED 61 YEARS, S/O KUNHAMBU NAIR AND MELOTH LAKSHMI AMMA, RESIDING AT PUDUKAI, NILESHWAR, PUDUKAI VILLAGE OF HOSDRUG TALUK-671314.** **Tr.P(C).No. 788 of 2017** **7 M. JANANDHANAN NAMBIAR, AGED 80 YEARS, S/O KUNHAMBU NAIR AND MELOTH LAKSHMI AMMA, RESIDING AT RAMNAGAR, ANANDASRAMAM P.O., AJANUR VILLAGE OF HOSDURG TALUK WITHIN.-671543.** **8 BHARGAVI AMMA, AGED 75 YEARS, W/O LATE KUNHIRAMAN NAMBIAR, RESIDING AT MEPUGIRI, KASARGOD 671121.** **9 JESSI NAMBIAR, AGED 36 YEARS, D/O LATE M. KUNHIRAMAN NAMBIAR, RESIDING AT MEPUGIRI, KASARGOD-671121.** **10 MEERA K. NAMBIAR, AGED 57 YEARS, W/O LATE KUNHAMBU NAMBIAR, RESIDING AT ANUPAMA, KUNIYAL THAZHAZTH, MALAPARAMBA POST, KOZHIKODE-673009.** **11 AMAL KUNHAMBU,** **AGED 34 YEARS, S/O LATE KUNHAMBU NAMBIAR, RESIDING AT ANUPAMA, KUNIYAL THAZHAZTH, MALAPARAMBA POST, KOZHIKODE-673009.** **12 AMRITA K. NAMBIAR,** **AGED 29 YEARS, D/O LATE KUNHAMBU NAMBIAR, RESIDING AT ANUPAMA, KUNIYAL THAZHAZTH, MALAPARAMBA POST, KOZHIKODE-673009.** **BY ADV.SRI.SHEEJO CHACKO** ## **RESPONDENTS/SOLE DEFENDANT & PLAINTIFFS 8, 11 & 12:** **1. M. DAKSHAYANI AMMA, AGED 86 YEARS, W/O N. KUNHAMBU NAMBIAR (LATE), D/O GOPALAKRISHNAN, RESIDING AT PAZHINHATTAMKOZHUVIL, NILESHWAR P.O., NILESHWAR VILLAGE OF HOSDURG TALUK-671314.** **2. M. GEETHA, AGED 59 YEARS, W/O. RAVEENDRAN, RESIDING AT KOTTARAKKARA BHAVAN, P.O. KANATHUR, MULIYAR VILLAGE OF KASARGOD TALUK-671542.** **3. ANILKUMAR, AGED 40 YEARS, LATE M. KUNHIRAMAN NAMBIAR, RESIDING AT MEPUGIRI, KASARGOD-671121.** **Tr.P(C).No. 788 of 2017** **4. AMBIKA, AGED 38 YEARS, LATE M. KUNHIRAMAN NAMBIAR, RESIDING AT MEPUGIRI, KASARGOD-671121.** **R1 BY ADV. SRI.JAWAHAR JOSE** **THIS TRANSFER PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-01-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** **Tr.P(C).No. 788 of 2017** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES** |**A1**|**THE TRUE COPY OF THE PLAINT IN O.S. NO.17/2015 ON THE FILE OF SUB**| |---|---| ||**COURT AT KASARGOD**| |**A2**|**THE COPY OF THE WRITTEN STATEMENT**| |**A3**|**THE TRUE COPY OF THE ORDER IN O.P.NO.22/2017 (TRANSFER) DATED**| ||**10.10.2017 OF DISTRICT COURT, KASARGAD**| ## **RESPONDENT(S)' ANNEXURE** **NIL** **TRUE COPY P.S. TO JUDGE** **EL** ## **ALEXANDER THOMAS, J.** ================== Tr.P(C).No. 788 of 2017 ================== Dated this the 13[th] day of January, 2018 ## **O R D E R** The prayer in this Transfer Petition (Civil) is as follows: _“... to withdraw and transfer O.S.No.17/2015 on the files of the Sub Court at Kasargod to any other Court having jurisdiction in the interest of justice.”_ 2. Heard Sri.Sheejo Chacko, learned counsel appearing for the petitioner and the Sri.Jawahar Jose, learned counsel appearing for the respondents. 3. The 12 petitioners herein are plaintiffs 1 to 7, 9 & 10 and 13 to 15 in O.S.No.17/2015 on the file of the Sub Court, Kasargod, in which, the 1[st] the respondent is the sole defendant therein. The suit for for partition. The plaintiffs 8, 11 and 12 are respondents 2 to 4. The petitioners would aver that the son of the 1[st] respondent herein (sole defendant), is one Sri.Ravindran Nambiar, who is an influential member of Kasargod Bar and that the petitioners have a reasonable apprehension that the suit is being protracted upon matters, which are not relevant in the suit and that this has been done presumably at the instance of the abovesaid son of the 1[st] respondent herein, etc. 4. The 1[st] respondent has entered appearance and has filed a counter affidavit vehemently denying the said allegations. It is stated by the 1[st] respondent therein that his son is not in any manner using influence so Tr.P(C)788/17 - : 2 :- as to in any manner interfere with the due process of litigative proceedings pending in the abovesaid suit and that adjournments have not been in any manner given due to the intervention of the son of the 1[st] respondent, etc. Para 4 of the said counter affidavit also deals with some of the facts and circumstances leading to some of the adjournments. 5. On a perusal of the averments in the petition filed by the petitioners as well as in the counter affidavit filed by the 1[st] respondent, this Court is of the considered opinion that no cogent legal ground has been disclosed in this petition so as to make out the case of either actual bias or reasonable likelihood of bias that the 1[st] respondent's son has in any manner interfered with the due judicial process in relation to the above litigative proceedings. That apart, it has also to be noted that this Court in the decision in _**Jain Paul Kuriakose v. Asha Babu**_ , reported in 2012 (4) KLJ 651, has held that Transfer Petition on the ground of bias on the judge by alleging that the party to a proceedings is an Advocate, who is practising before that court is not valid ground ground to attribute bias against the presiding officer, etc. Sri.Sheejo Chacko, learned counsel appearing for the petitioners has made available for the perusal of the court a print out of the proceedings sheet in relation to the abovesaid suit and it is seen that more than 44 postings have occurred in this case for the period from 20.8.2015 uptl 30.11.2017. The petitioner has raised an apprehension Tr.P(C)788/17 - : 3 :- that the matter may be unnecessarily protracted even further. Sri.Jawahar Jose, learned counsel appearing for the 1[st] respondent would submit that the 1[st] respondent is now aged 86 years old and she is more interested than the plaintiffs to ensure that the ordeal of the litigative proceedings is completed without any further delay and this Court may pass appropriate orders to ensure that the main matter in the suit itself is disposed of by the civil court within one month. 6. There is yet another contention raised by the petitioners in the previous round of litigation in Anx. 3 judgment, wherein the plea made was for a intra district transfer, the 1[st] respondent had opposed the said application stating that her son is practising before the Hosdurg courts as well and the remedy of the petitioners is to seek the transfer of the suit to the competent court outside the District Court and that the District Court concerned as per Anx.3 judgment had specifically held in para 7 thereof that the said petition is dismissed without prejudice to right of the petitioners to seek transfer of the suit to a court situated outside the judicial district of Kasargod. True that the 1[st] respondent herein has taken up such a plea in the previous round of litigative proceedings in Anx.3 and the District Court concerned had also held that the dismissal of the said application is without prejudice to right of the petitioners to seek transfer of the suit to a court outside the judicial district of Kasargod. Those aspects Tr.P(C)788/17 - : 4 :- in Anx. 3 judgment will not by itself lead to a situation that the 1[st] respondent has conceded that the petitioners have a right to seek transfer of the suit to a competent outside the District Court. The said plea taken up the 1[st] respondent herein as reflected in para 2 was mainly for opposing the plea made by the petitioners for the said intra district transfer and therefore in any proceedings like the present one initiated by the petitioners seeking an inter district transfer, the petitioners have to legally make out a ground justifying the grant of transfer as envisaged in Sec. 24 of the C.P.C. As held herein above, the petitioners have not been able to disclose such a ground successfully so as to invoke the statutory power conferred on this Court under Sec. 24 of the C.P.C. 7. In the light of these aspects, this Court is of the considered opinion that the prayer made by the petitioners for transfer of the case cannot be acceded to by this Court. However, it is ordered in the interest of justice that the Sub Court, Kasargod, will take all reasonable measures possible under the circumstances to ensure that O.S.No. 17/2105 is disposed of without much delay preferably within a period of 3 months from the date of production of a certified copy of this judgment. The trial court will also ensure as to whether the suggestion made on behalf of the 1[st] respondent that the suit itself could be disposed of within one month is feasible and if it is found to be so feasible, earnest efforts in that regard Tr.P(C)788/17 - : 5 :- should also be endeavoured by the Sub Court to dispose of the suit either within one month or within a time limit shorter than the above stipulated time limit of 3 months. 8. Before parting with this judgment, this Court would certainly call upon the trial court concerned to ensure that all reasonable measures are taken by the said court to ensure that the litigants like the present petitioners do have even have remotest apprehension about the fair process of adjudication and that this Court would certainly hope and expect that the said confidence reposed by this Court on the trial court would be duly discharged by the said court to ensure that the litigants like the petitioners have full faith in the efficacy and fairness of the adjudicatory process. With these observations and directions, the abovesaid Transfer Petition (Civil) stands finally disposed of. ## sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge