Kuriakose v. General Manager, Telecommunications — 1991 DIGILAW 540 (KER)

Judgment :- 1. O.S. No. 54 of 1978 and O.S.No.108 of 1978 are being tried jointly in the court of the learned II Additional Subordinate Judge, Trivandrum. The petitioner herein is the plaintiff No.1 in O.S.No. 54 of 1978 and plaintiff No. 2 in O.S.108 of 1978. The other plaintiffs have not joined in this petition. The respondents are the defendants. This petition is for transfer of the suits from the court of the Second Additional Subordinate Judge, Trivandrum, to the court of the Principal Sub Judge, Trivandrum, or the I Additional Sub Judge, Trivandrum. 2. The learned District Judge, Trivandrum, before whom O.P.(T.P.) 117 of 1991 was filed in the first instance, dismissed the application for transfer. 3. The litigation between the plaintiffs who represent the Malankara Metropolitan of the Malankara Orthodox Syrian Church and the respondents who represent the St.George's Orthodox Church, has a long and chequered history, an elaborate reference to which is unnecessary. I will briefly set out in the next paragraph the events giving rise to this petition. The petitioner is hereinafter referred to as the plaintiff and the respondents as defendants. 4. The plaintiffs are represented in the suit by U.S. Sivasankara Pillai, a senior advocate of 36 years of standing. The plaintiffs' counsel Mr. Sivasankara Pillai conducted the trial from 1987 to 17-2-1988. After the conclusion of evidence, Mr.Pillai commenced his arguments on 28-11-1989 and concluded them in April, 1990. On 5-9-1991 counsel for the defendants 13,14,17 to 23 in O.S.No. 54 of 1978 commenced his argument. Ext. B3 on the record of suits is a petition filed by a former Asst. Vicar and Kaikaran of the St. George's Orthodox Church, before the District Court, Kottayam, in O.S.No.111/1113 M.E. Counsel for the defendants during the course of his arguments referred toExt.B3 and submitted that it was signed by the Vicar, although it was allegedly signed by the Asst. Vicar. According to the plaintiffs, the Asst. Vicar is not competent to represent the parish or the church as long as there is a Vicar and that consequently Ext. B3 will not bind either the parish or the metropolitan. Counsel for the defendants repeatedly submitted before the court that Ext. B3 was signed by the vicar of the St.George's Orthodox Church, Trivandrum, Mr.Sivasankara Pillai after seeking court's permission pointed out that Ext. B3 will not bind either the parish or the metropolitan. Counsel for the defendants repeatedly submitted before the court that Ext. B3 was signed by the vicar of the St.George's Orthodox Church, Trivandrum, Mr.Sivasankara Pillai after seeking court's permission pointed out that Ext. B3 was not signed by the Vicar but was signed by the Assistant Vicar who was not competent to represent the parish in legal proceedings. In other words, he sought to correct a factual error committed by the defendants' counsel during the course of his arguments. The repetition of the factual error by defendant's counsel was followed by repeated interruption by Mr. Sivasankara Pillai. The court did not ascertain whether Ext. B3 was in feet executed by the Vicar. The defendants' counsel requested the court to ensure that Mr.Sivasankara Pillai did not continue to interrupt his arguments. Counsel for the plaintiffs explained that he was merely trying to correct a factual error repeatedly made by counsel for the defendant. The learned judge in reply to the request by defendant's counsel said: "I assure you that there will be no such interruptions hereafter. It is the habit of some persons to make interruption." It is the case of the plaintiffs that the sentence "it is the habit of some persons to make interruption" was aimed at their counsel Sivasankara Pillai. 5. For the purpose of this petition the following facts may be assumed to be correct: (i) The document Ext.B3 is signed by the Asst.Vicar and not the Vicar of the St.George's Church. (ii) The Asst. Vicar has no authority to execute Ext. B3 or to represent the church or the Parish in legal proceedings. (iii) The learned judge made the statement quoted above in the circumstances set out in paragraph 4 above. (iv) The statement referred to in (iii) above was aimed at Mr.Sivasankara pillai. 6. Learned counsel for the plaintiffs urged that the facts set out in paragraph 5 above gave rise to a reasonable apprehension that the plaintiffs will not receive justice from the learned trial judge. His arguments are these: (i) Having regard to the stature of Mr. Sivasankara Pillai, the remarks in question have so hurt him that Mr. Pillai will not be able to discharge his professional obligation to his client and also to the court. His arguments are these: (i) Having regard to the stature of Mr. Sivasankara Pillai, the remarks in question have so hurt him that Mr. Pillai will not be able to discharge his professional obligation to his client and also to the court. (ii) Having regard to the magnitude of the record of the case and the industry it demands, the plaintiffs are not, at this stage, in a position to engage another lawyer. This factor together with the stature of Mr. Sivasankara Pillai is likely to result in denial to the plaintiff a lawyer of his choice. (iii) There is, on the profession of lawyers, the special responsibility not only to plead the client's cause but perform the duty as an officer of the court with courage and dignity. Since the plaintiffs counsel who was characterised as an interrupter of legitimate proceedings, is not in a position to go with the case before the learned judge there is denial of the lawyer's right to protect his client's interest. (iv) The remarks of the learned judge which characterised the plaintiffs' counsel as a person accustomed to making interruptions has created a reasonable apprehension in the mind of the petitioner that he will not get a fair trial from the learned trial judge. 7. Before examining whether the facts of this case constitute bias and raise reasonable apprehension in the. mind of the plaintiffs that he will not receive justice from the trial judge few general principles on the subject need to be noted. 8. It must be remembered that transfer of suit from one judge to another should not be readily granted for a fancied notion of a litigant. The reason is that the transfer of a case from one judge to another casts indirectly, doubt on the integrity or competence of the judge (Rajkot Cancer Society v. Municipal Corporation Rajkot, AIR 1988 Guj. 63) from whom the matter is transferred. It is, therefore, a serious matter which calls for great circumspection. Mere presumption or possible apprehension cannot be made the basis of transferring the case from the court to another. The need to exercise great care and caution springs from the fact that a lighthearted transfer may impute an improper or unjustifiable, stigma or slur against the court. 9. It is, therefore, a serious matter which calls for great circumspection. Mere presumption or possible apprehension cannot be made the basis of transferring the case from the court to another. The need to exercise great care and caution springs from the fact that a lighthearted transfer may impute an improper or unjustifiable, stigma or slur against the court. 9. In Dr.Subramaniam Swamy, (Dr.Subramaniam Swamy v Ramakrishna Hedge, AIR 1990 SC 113), the Supreme Court laid down the following fundamental principles, (a) Assurance of a fair trial is the first imperative of dispensation of justice. (b) The central criterion for the court to consider is that the application for transfer has not proceeded from hypersensitivity or relative convenience of a party or easy availability of legal services. There must exist something more than these grounds, something more compelling from the point of view of public justice and not the attitude of a sensitive litigant, (c) The paramount consideration for transfer is the cause of justice. In Eachara Warrier (TV. Eachara Warrierv. State of Kerala & Ors. (1984 KLTSN44, Case N6.74) this Court emphasised that transfer of suit is not to be made in a lighthearted fashion. While the existence of a reasonable apprehension on the part of a litigant that he may not receive justice has to be taken into account, a transfer should not be readily granted for any fancied notion of a litigant. Rev. Fr.Punnen Thomas (Rev.Fr. Punnen Thomas v. Moran Mar Bassalios, 1963 KLJ 781) held that the court should place itself in the complaining litigant's chair and in the light of the facts known to such litigant should decide whether reasonable man would entertain an apprehension that he would be denied justice. Expression of opinion by the judges during arguments in courts had also been the subject of application for transfer. C.V. Xavier (C.V. Xavier v. J.J. De Chane,1972 KLT 209) was a classic example of the not uncommon attempt, to have cases transferred, based on unreasonable and fanciful fear of bias proceeding from ignorance of judicial process. The allegation of bias, based on expression of opinion by judges after hearing the case for a day was held to be "mala fide if not presumptuous." The fact that the transfer was sought from one bench of the High Court to another, makes no difference to the principle laid down by the case. The allegation of bias, based on expression of opinion by judges after hearing the case for a day was held to be "mala fide if not presumptuous." The fact that the transfer was sought from one bench of the High Court to another, makes no difference to the principle laid down by the case. The expression of opinion on the merits of the case after hearing the case for a day gave rise to the allegation of bias. People subjectively attached to the results of their litigation tend to be obvious to the fact that expression of tentative opinions on the merits of a case which may be adverse to one and favourable to another is a part of the process of debate, and education. 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 a healthy system. Without such exchange, dialogue and debate, judicial decision making will be reduced to a mechanical lifeless exercise. The debate cannot be reduced to the vice of bias. This is the teaching of C.V. Xavier. 10. The effect of the facts on the mind of the plaintiffs, must be understood by putting myself in the plaintiffs armchair (Rev.Fr.Punnen Thomas v. Moran Mar Bassalios,1963 KLJ 781). When I place myself in the position of the plaintiffs against the background of the facts set out in paragraph 5 above I find that a) my advocate was misunderstood to have interrupted the proceedings. (b) The judge expressed that my advocate is one of those persons who interrupt proceedings. This is about all. Nothing beyond this has been done. Against the background of the facts stated in paragraph 5 consider the following circumstances. Firstly Mr. Sivasankara Pillai conducted the trial for about year and his arguments extended over a period of five months. During this period, the learned judge gave no cause for complaint. Secondly, the learned judge never expressed opinion on the merits of the case, although the arguments are at a concluding stage. 11. Placing myself in the position of the plaintiffs all that I find that an adverse view about the "interruption" by my advocate has been expressed. During this period, the learned judge gave no cause for complaint. Secondly, the learned judge never expressed opinion on the merits of the case, although the arguments are at a concluding stage. 11. Placing myself in the position of the plaintiffs all that I find that an adverse view about the "interruption" by my advocate has been expressed. The quality of my case, my right to fair trial or the merits of the case were always kept out of his speech by the learned trial judge. Therefore the learned trial judge has kept the litigant's cause out of his speech in the court but made a reference to the interruption by the advocate. Is there a nexus between the judge's comment about the interruption by the advocate and the state of mind of the litigant? What was said of Mr.Sivasankara Pillai, had nothing to do with the plaintiff cause. In a given case what is said about counsel may create an' apprehension in the mind of the litigant. But that may happen where counsel's conduct or performance are referred to in such a manner, as to suggest that counsel's performance or conduct has created adverse image of his client's case. In other words, the remarks about counsel must have nexus with the merits of his client's cause. Again expression of views about the merits by itself is not conclusive in deciding whether there exists bias or reasonable apprehension that the litigant may not get fair trial or justice. The occasion, context, and stage of the proceedings have to be considered in judging whether there is a cause for such apprehension. Exchange of ideas, debate and therefore expression of views by judges is inevitable in judicial proceedings. The question of bias has to be decided on the facts of each case. The remarks of the learned trial judge show a clear perception of the difference between counsel's behaviour, and the needs of a fair trial of his client's cause. That is why the learned judge referred only to the interruption by counsel, without even remotely touching the litigant's cause. There is no reason at all why the remarks of the judge should cause any apprehension in the mind of the plaintiffs. 12. Learned counsel for the plaintiffs drew my attention to Dr.Hardit Singh Jaswant Singh (Dr.Hardit Singh Jaswant Singh v. Bhagat Jaswant Singh & Ors. There is no reason at all why the remarks of the judge should cause any apprehension in the mind of the plaintiffs. 12. Learned counsel for the plaintiffs drew my attention to Dr.Hardit Singh Jaswant Singh (Dr.Hardit Singh Jaswant Singh v. Bhagat Jaswant Singh & Ors. AIR 1964 Punjab 277) and highlighted the importance of the members of the legal profession as officers of the courts. No doubt counsel must conduct themselves with courage, impartiality and dignity. Counsel undoubtedly has a duty to protect his client's interest and rights with courage and ability. The observations of the Punjab High Court were made in the context of the failure of counsel to urge before the court his client's cause in a firm but dignified manner. I do not see how the remarks of the learned judge about the interruption complained of cause reasonable apprehension justifying transfer ofthe case. As I understand, learned counsel for the plaintiffs means that if Mr.Sivasankara Pillai is driven to withdraw his appearance such withdrawal must be attributed to the remarks by the judge. It follows therefore that if Sivasankara Pillai cannot conduct the case ofthe plaintiffs, the plaintiffs are left without a lawyer, for, at this stage no other advocate would be able to take up the case. The learned judge has said nothing about the conduct, or quality ofthe case of the plaintiffs. If this is so, I do not see how withdrawal from the case by Mr.Sivasankara Pillai can create any apprehension that the plaintiffs may not get justice from the trial judge. Besides, this argument stems from ignorance of a striking fact. Mr. Sivasankara Pillai has already performed his duty to the court and to his client. Mr. Sivasankara Pillai concluded his arguments in April, 1990. The process of trial and arguments have been completed by Mr.Pillai in a manner which has satisfied the plaintiffs and the judge. No complaint was ever made. Now the defendants' counsel has nearly concluded his arguments. All that Mr.Pillai needs to do, is to argue in reply. 13. The affidavit in reply made by Thomas Varghese brings out telling facts. Mr. Sivasankara Pillai who is associated with the plaintiffs cause conducted the trial from 1987 to 17-2-1988. In fact it is he who commenced the arguments on 28-11-1989 and concluded them in April, 1990. All that Mr.Pillai needs to do, is to argue in reply. 13. The affidavit in reply made by Thomas Varghese brings out telling facts. Mr. Sivasankara Pillai who is associated with the plaintiffs cause conducted the trial from 1987 to 17-2-1988. In fact it is he who commenced the arguments on 28-11-1989 and concluded them in April, 1990. Thus the plaintiffs argument that without Mr.Sivasankara Pillai there would be denial of justice, is unfounded. If Mr.Sivasankara Pillai, has, in fact, argued the plaintiffs' case after the evidence was closed, there is no question of denial of his expertise. I understand that the plaintiffs counsel has concluded the arguments and counsel for the defendants is about to conclude them. 14. In his report sent to the- District Judge, Thiruvananthapuram, who heard the O.P.(T.P.) 117 of 1991 the learned trial judge has explained what exactly happened in the court. When the plaintiffs' counsel interrupted twice the defendant's counsel stopped his argument and sat down. The judge requested the defendants' counsel to resume and complete the argument. The learned judge who admitted that he did make the remarks against the plaintiffs counsel explained that there marks were casual and not intended to offend anyone. The learned judge hastened to add that after he made the remarks he told Mr.Sivasankara Pillai that he would have sufficient opportunity to meet the arguments of defendants' counsel. In the face of these events which occurred in the court, the apprehension about bias is reduced to a flight of plaintiffs' fancy. 15. My conclusions based on the consideration of the facts of this case and the law on the subject, are as under: (i) The petition is based on an adverse remark by the judge about interruption by the plaintiffs counsel. No reference to the quality of the plaintiffs evidence, or the merits of the case was made. There is nothing in the remarks of the judge about counsel's behaviour, which tends to create any impression about the fairness of the trial or the attitude of the judge to the merits of the case. (ii) When the litigant's cause is kept out his remarks by the judge, the litigant whose counsel has met with criticism by the judge, has no reason to apprehend that he may not get justice from the judge. (ii) When the litigant's cause is kept out his remarks by the judge, the litigant whose counsel has met with criticism by the judge, has no reason to apprehend that he may not get justice from the judge. (iii) Bearing in mind the distinction between counsel as an officer of the court and the litigant as a seeker of justice, the trial judge said nothing about the merits of the case. Nor was there any suggestion that counsel's performance has adversely affected merits of the case. In the absence of such nexus between the remarks about interruption by counsel and the merits of the plaintiffs case, there is nothing that should affect the litigant's mind so as to create apprehension of bias. (iv) The trial and arguments having concluded with the able assistance of counsel of the plaintiffs' choice, the apprehension that the plaintiffs may not get justice is not only fanciful but proceeds from a hypersensitive approach. (v) The assurance by the trial judge to the plaintiffs' counsel that he will have sufficient opportunity to reply the arguments of the defendants' counsel, is a complete and effective answer to the allegation of bias. 16. In view of conclusions I see no merit in this petition. The petition is dismissed with costs. All interim orders shall stand vacated forthwith.