T. v. Eachara Warrier VS State of Kerala — 1984 DIGILAW 2 (KER)

ORDER Sukumaran, J. 1. The plaintiffs in O.S. No. 133 of 1979 before the Sub Court, Badagara have filed this petition under S.24, Civil Procedure Code for a transfer of the suit "to some other courts in Ernakulam". 2. The plaintiffs claim Rs. 7 lakhs as damages "for the death of the plaintiff's son in the custody of the State of Kerala as a result of the tortures inflicted on him by defendants 2 to 6". They had commenced the proceedings as early as on 13th August 1978, seeking to institute the suit as indigent persons. The suit was instituted in the Sub Court, Badagara on the basis of an averment in the plaint that the "wrongful arrest and death occurred within the jurisdiction of that court in Kakkayam". 3. The trial was to commence on 23rd October 1982, The present petition was filed on 13th October 1982. The grounds relied on for the transfer are: (i) the residence of the plaintiffs is at Ernakulam, that of defendants 1 to 4 at Trivandrum and of the 5th defendant at Palghat; the 6th defendant was then serving in the Cannanore District, (a) most of the witnesses to be examined are from Ernakulam and nearby areas and (iii) the documents to be produced are either in Trivandrum or in Ernakulam. According to the petitioners, some of the witnesses to be examined had informed the 1st plaintiff that they would prefer to go to Ernakulam for various reasons including health; and some of the witnesses even expressed apprehension about their personal safety, if they had to go to Badagara to give evidence. That the expenses would be higher if the trail is to take place at Badagara and that the plaintiffs engaging advocates from Ernakulam and the plaintiffs understanding about the defendants having engaged counsel in Ernakulam, had been put forward as additional reasons. 4. On behalf of the 1st respondent a counter affidavit was filed on 1st February 1983. It was pointed out therein that the plaintiffs had not furnished any list of witnesses. The allegation about the witnesses expressing apprehension about their personal safety in the event of their being examined at Badagara was pointed out to be "without any basis" and as "unwarranted". The other allegations were also denied in the counter affidavit. It was pointed out therein that the plaintiffs had not furnished any list of witnesses. The allegation about the witnesses expressing apprehension about their personal safety in the event of their being examined at Badagara was pointed out to be "without any basis" and as "unwarranted". The other allegations were also denied in the counter affidavit. The fact that the State had engaged a counsel at Calicut and that it would be inconvenient for him to go to Ernakulam and attend to the civil cases which were ''likely to prolong", was also put forward as a reason for opposing the application for transfer. 5. Service in the petition for transfer was complete by 22nd March 1983. The petition was not, however, heard though it had been posted for hearing over a dozen times thereafter. 6. On 12th October 1983 an additional affidavit was filed by the 1st plaintiff. This contains some grave allegations against the judicial officer at Badagara. It was alleged that he "had earlier dealt with the case and on several occasions had indicated his decision to dismiss the suit on a preliminary ground" and that it was only on the representation of his counsel at Badagara that the suit had not been dismissed earlier. The affidavit further stated: "That Judge.......... had openly announced in court that there is no merit in the suit and the same has only to be dismissed and for disposal he had already posted the matter once. It was in the mean time that a stay was obtained from this Hon'ble Court. The trial of the Suit by that Judge therefore I apprehend will not be conducive to the interest of justice as besides the aforesaid announcement I also understand that the said judge is on very friendly terms with some of the defendants. I have therefore that feeling justified and strengthened by the open declaration by that Judge that there are no merits in the case to be resolved. Therefore in any event, the case has to be transferred from Badagara to some other courts." (emphasis supplied) 7. Having regard to these and other averments contained in the additional affidavit it was felt necessary to have the comments of the Judge. The comments were given by letter, dated 29th November 1983. Therefore in any event, the case has to be transferred from Badagara to some other courts." (emphasis supplied) 7. Having regard to these and other averments contained in the additional affidavit it was felt necessary to have the comments of the Judge. The comments were given by letter, dated 29th November 1983. It is necessary to set out paragraph 2 thereof to indicate the version of the learned Judge: "I submit that I deny all the allegations made against me in the affidavit of the petitioner filed before the High Court. It is false to state that I indicated that I will dismiss the suit on preliminary ground. It is false to state that but for the representation of the plaintiff's counsel at Badagara the suit would have dismissed by me. It is utter falsehood to say that I openly announced in court that there is no merit in the suit and the suit is to be dismissed. The suit was posted in the special list for evidence only because the suit was one of the oldest suits as it was filed in 1979 and it was ripe for trial. The learned counsel for the plaintiff in this court Sri P. K. Dinesh Chandran, advocate who was representing the plaintiff in this court was called to my chambers today. I ascertained as to whether he holds the view that I have stated that I will dismiss the suit and whether I openly announced in court that there is no merit in the suit. The said learned counsel submitted that I did not said anything of that sort as alleged in the affidavit of the petitioner. I beg to submit that if I said as alleged now in the affidavit, the plaintiff would have stated that fact in the first affidavit filed by him before the High Court, But I do not find any such allegation in the said affidavit. It is also false to say that I am on very friendly terms with some of the defendants." In tune with the attitude of any member of the judiciary placed in such a situation, the learned Judge also stated that he had no objection in transferring the suit. It is also false to say that I am on very friendly terms with some of the defendants." In tune with the attitude of any member of the judiciary placed in such a situation, the learned Judge also stated that he had no objection in transferring the suit. He even pleaded that "in view of the expression of lack of confidence by the plaintiffs" the suit (which at that time was pending before the Additional Sub Court, Badagara) need not be transferred to him. 8. The letter was made available for perusal by counsel for the petitioners. 9. An additional counter affidavit was filed on behalf of the 1st defendant State on 5th November, 1983. The allegations contained in the additional affidavit of the petitioners were denied therein. The fact that even at that late stage, the list of witnesses had not been filed by the plaintiffs was pointed out therein. The affidavit further pointed out that the State Government had, by order, dated 17th April 1980, appointed a special counsel to defend the suit. That counsel was from Calicut. If the suit was transferred to Ernakulam it would cause hardship and heavy loss to it, according to the State. The belated filing of the transfer petition after more than four years of the initiation of the proceedings, was also emphasised on behalf of the State as a reason for declining the prayer for transfer. 10. In the light of the comments made by the learned Subordinate judge, an additional affidavit was filed by the 1st petitioner on 13th December 1983. An explanation was put forward therein for not making the personal allegations against the Judge in the earlier case: the reason was that he wanted a transfer of the suit to a different place altogether and not from one court to another in the same place. According to the second affidavit, what had been stated in the earlier affidavit was based on information conveyed by counsel at Badagara "and also through some of the other counsel who were present there". The names or particulars of such counsel are not indicated in the affidavit. The affidavit continues: "In fact on the 4th December, 1982 the case had been posted and the learned Judge made observations complained by me in the earlier affidavit. The names or particulars of such counsel are not indicated in the affidavit. The affidavit continues: "In fact on the 4th December, 1982 the case had been posted and the learned Judge made observations complained by me in the earlier affidavit. It may be stated that he openly declared in the court that he will dismiss the suit if the certified copy of the order of stay from the High Court is not produced before 10th December 1982. It was represented by my counsel that the High Court has been pleased to order a stay which fact appears to have been doubted and suspected by the learned Judge. It was in that context that the learned Judge made the observations. The letter from my counsel there states. 'Today the Judge is very stiff.' In another portion of the letter he says there is every likelihood of the case being disposed of for default. The counsel has also used the word that the Judge has become 'furious'. The letter itself is not produced as I apprehend it will not be conducive or expedient to produce the letter. I have not made any allegation in the affidavit filed earlier with a view to make derogatory comments about the learned Judge but whatever I have stated was on the information conveyed to me and on the bona fide belief and apprehension entertained by me that the learned Judge somehow is interested in dismissing the suit. I still maintain that the learned subordinate Judge, Badagara who openly announced his inclination may not keep an open mind in trying the suit of such a nature involving controversies of various sorts. I respectfully wish to make it very clear that there is absolutely no personnel reference to the learned Judge but it will be dishonest on my part not to express the apprehension entertained by me which I still continue to believe." 11. As regards the grounds originally mentioned in the petition for transfer, counsel for the petitioners relied on the decision of the Madras High Court in Sri Pamban Kumaragurubara Swami Temple v. K. Subramanya Mudaliar AIR 1977 Madras 27 and emphasised that convenience of the parties was a relevant factor for ordering a transfer under S.24, C.P.C. The observations contained therein have however, to be understood in the factual background of that case. The court made a positive finding in paragraph 4 of its judgment, reading : "Very strong ground has been made out on the basis of convenience to all the parties concerned to order the transfer as prayed for." (emphasis supplied) Such a situation does not exist in the present case, as regards the prayer for transfer to Ernakulam. The State strongly asserted that the transfer of the suit to Ernakulam would be highly inconvenient to it in view of the commitments already made by it for the conduct of the case. That submission is indeed forceful and acceptable. The 2nd respondent also disputes the petitioner's claim that Ernakulam is more convenient. It cannot therefore be said that the transfer to Ernakulam would be to the convenience of all the parties. 12. It was the petitioners as plaintiffs, and as dominus litis instituted the suit at Badagara. As early as in 1980 the State Government made arrangements for its defence by appointing a Special Counsel from Calicut. More than two years passed thereafter when the application for transfer was made. The pleadings were complete by that time. The issues had been settled and the trial itself was to commence soon. It was virtually a few days prior to the date of commencement of the trial, that the application for transfer was moved. When the State Government points out the serious inconvenience caused to it in the event of its being obliged to engage another counsel at Ernakulam, and to make arrangements for the defence, that cannot, in the circumstances, be lightly ignored. Even, according to the plaintiffs the suit is "of such a nature involving controversies of various sorts" (vide additional affidavit filed on 13th December, 1983). To make alternate arrangements for the defence of the suit involving a huge sum of Rs. 7 lakhs, and involving important factual and legal issues by changing a counsel who had been already, instructed in the matter for over two years, is not an easy work. The equipment of defence made out from two years of intense intellectual activity of a senior counsel is not an easily replaceable commodity readily available in the open market. Looked that way, the transfer will certainly be an inconvenience and even a serious handicap to the defendant - the Government. The equipment of defence made out from two years of intense intellectual activity of a senior counsel is not an easily replaceable commodity readily available in the open market. Looked that way, the transfer will certainly be an inconvenience and even a serious handicap to the defendant - the Government. No weight can be attached to the arguments based on the convenience of the witnesses, when the petitioners have not filed their list of witnesses in the suit so far. For the same reason, there is no force in the submission about a lower cost in the summoning of witnesses in the event of the venue being shifted to Ernakulam. 13. A transfer of the suit is not to be made in a light-hearted fashion. This is particularly so, when the party seeking the transfer is the very same person who opted one of the places available to him for instituting the suit, Convenience of other parties and the expenses likely to be incurred by them are also to be considered. (See the decision of the Supreme Court in Indian Overseas Bank, Madras v. Chemical Construction Co. and others AIR 1979 SC 1514 . The belated nature of the application for transfer and the fact that several proceedings have been gone through in a suit, were factors which weighed with the court for declining an application for transfer in Banarasi Prasad Sharma and others v, Bhagwan Choudhury and others AIR 1972 Calcutta 291. I am not, therefore, satisfied that the grounds originally mentioned in the petition are sufficient or valid for ordering a transfer of the case from Badagara to Ernakulam. 14. If there is a reasonable apprehension on the part of a litigant about his getting justice from a particular judicial officer, that would certainly be taken serious note of while considering an application for transfer. A transfer would not, however, be readily granted, for any fancied notion of a litigant. The allegations in the affidavit, dated 10th October 1983, as noted earlier, had been pointedly and strongly refuted by the learned Subordinate Judge. He has been emphatic that the allegations were 'false'. The second affidavit of the 1st petitioner seeks to base the events of 4th December 1982 as a reason for his apprehension. The allegations in the affidavit, dated 10th October 1983, as noted earlier, had been pointedly and strongly refuted by the learned Subordinate Judge. He has been emphatic that the allegations were 'false'. The second affidavit of the 1st petitioner seeks to base the events of 4th December 1982 as a reason for his apprehension. Those averments, however, only indicate that the learned Judge was insistant upon the production of a certified copy of order of stay from the High Court to enable him to stay further proceedings in the suit. He was justified in doing so. There would not have been any justifiable excuse for adjourning without any valid reason, a litigation of the year 1979. That act on the part of the court, would not justify the assertive accusation of the 1st petitioner that the Judge "openly announced in court that there is no merit in the suit and the same has to be dismissed." 15. Equally reckless is the further averment about the Judge being "on very friendly terms with some of the defendants". The specification of the defendants with whom the learned Judge was alleged to be on friendly terms had not been made even in the second affidavit. The learned judge had categorically refuted that allegation in his remarks. I have no hesitation in accepting as correct the statement of the Subordinate Judge. 16. Every effort would be made by this court to ensure that a litigant gets a fair trial and impartial justice. At the same time, let it be equally clearly be remembered that this court will not permit the litigants to make wanton and rash allegations against the subordinate judiciary, which discharges onerous duties in a very creditable manner, despite very many disadvantageous factors. 17. The explanation put forward by the 1st petitioner for not making the personal allegations earlier, is too artificial and too tanuous to be accepted. It is inconceivable that the petitioner would have kept quiet about such a serious matter, if, as a matter of fact, any such remarks had been made by the learned Judge. The long interval between the time of the alleged observation of the learned Subordinate Judge and the filing of the affidavit about the same by the petitioner is an important circumstance which would discredit his version. The long interval between the time of the alleged observation of the learned Subordinate Judge and the filing of the affidavit about the same by the petitioner is an important circumstance which would discredit his version. I have no hesitation to hold that the allegations made by the 1st petitioner against the learned Judge were thoroughly unfounded and totally unjustified. There was absolutely no basis for the 'apprehension' about getting justice, as sought to be made out by the 1st petitioner. It is extremely unfortunate that a person like the 1st petitioner should have chosen to make such remarks about a member of the judiciary of this State. 18. The duty of all concerned to be circumspect in making allegations about the presiding officers of a court, had been forcefully pointed out by the Supreme Court, way back in 1955 in N. V. 'Shareef v. Judges of Nagapur High Court AIR 1955 SC 19. A Division Bench of this court consisting of Raghavan, C. J. and Unnikrishna Kurup, J. referred to those observations in C. V. Xavier v. J. and J. De Chape AIR 1972 Ker. 263 . Reference was made on those observations again on a recent occasion, by another Division Bench consisting of Chandrasekhara Menon and M. P. Menon, JJ. (vide order in K. P. Retnakaran v. K. N. Krishnaraj and others C.M.P. No. 13058 of 1979 in O.P. No. 1473 of 1979. A Special Bench of the Patna High Court consisting of S. C. Misra, K. Sahai and S.N.P. Singh, JJ., observed in In re Shashi Bhusan Dutta AIR 1963 Patna 353 as follows: "It may be repeated once again for the guidance of the members of the Bar that the law in regard to the allegations in a petition for transfer is that the responsibility for the allegations does not lie exclusively upon litigant. It is the moral and professional duty of the lawyer engaged to be reasonably and generally satisfied about the fact that there may be some foundation for the allegation before he agrees to put it down on paper and sign it and file in Court. It is the moral and professional duty of the lawyer engaged to be reasonably and generally satisfied about the fact that there may be some foundation for the allegation before he agrees to put it down on paper and sign it and file in Court. It is a kind of dual responsibility although the manner in which it is to be discharged operates differently so far as the litigent and the lawyer engaged by him are concerned." And again: "It is for a lawyer to remain alert as to what statement he is making, and very much more so when the statement relates to allegations that would justify a petition for transfer." 19. The two affidavits of the 1st petitioner indicate the necessity to refer to the wise counsel. 20. When the matter came up for final arguments, counsel for the petitioners submitted that the petitioners would be satisfied with a transfer of the case to Calicut. To this course, the State also has no objection. A memo has been filed on behalf of the State, on 22nd December 1983, expressing its agreement. Counsel for the 2nd respondent, however, struck to his original stand and opposed the transfer. The 2nd respondent had, however, not chosen to file any counter affidavit in opposition to the application for transfer. One of the main reasons which has weighed with me for declining the transfer is the altered position of the State which had made arrangements for the conduct of the suit by engaging a counsel at Calicut. A transfer of the case to Calicut will not in any way cause any prejudice or hardship or inconvenience to the State. On the contrary, the venue at Calicut may be even more convenient for the special counsel engaged by the State, as he is stationed at Calicut. In these circumstances, I would transfer O.S. No. 133 of 1979 pending before the Sub Court, Badagara to the Sub Court, Kozhikode. 21. The petition will stand allowed in the manner indicated above. I direct the parties to suffer their respective costs in the petition.