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2002 DIGILAW 117 (CAL)

Sipra Roy v. Arun Kumar Roy

2002-02-21

Bhaskar Bhattacharya

body2002
JUDGMENT Bhaskar Bhattacharya, J.: By this revisional application, a wife/respondent in a suit for divorce has challenged an order passed by the learned District Judge, North 24 Parganas by which a pending suit for divorce was transferred from the 3rd Court of Additional District Judge, Barasat to the 4th Court of Additional District Judge of that station without issuing any notice to the present petitioner. 2. It is alleged in this application that the learned District Judge on the prayer of the opposite party transferred the suit from the 3rd Court of Additional District Judge to the 4th Court without giving the petitioner any opportunity of being heard. The petitioner after getting the know ledge of such transfer applied for certified copy of the order of transfer but the same was not furnished. She then filed an application before the learned District Judge for ascertaining the reason of such transfer but the learned District Judge refused to pass any order on such application. Subsequently from the 4th Court of Additional District Judge, the petitioner came to know that the learned District Judge by Order No. 45-G dated March 8, 2001 has transferred the suit from the 3rd Court to the 4th Court. 3. On June 25, 2001, P.K. Samanta, J entertained this application and fixed the matter for hearing as the opposite party entered appearance through his learned Advocate. His Lordship also stayed all further proceedings of the suit until further order. 4. On December 19, 2001 when the matter appeared before this Court, Mr. Roy, the learned advocate appearing on behalf of the husband submitted that on the basis of a letter written by his client, the learned District Judge transferred the suit; but he could not produce a copy of such letter. In view of such fact, this court called for the records. From the records, it appeared that on the basis of a "confidential letter" dated March 3, 2001 the learned District Judge by Order No. 45-G dated March 8, 2001 transferred the suit by virtue of his power under section 24 of the Code of Civil Procedure. But the "confidential letter" was not there. The contents of the said letter were also not available from the aforesaid order of the learned District Judge. 5. But the "confidential letter" was not there. The contents of the said letter were also not available from the aforesaid order of the learned District Judge. 5. This Court thereafter on January 14, 2002 directed the learned District Judge to send the confidential letter dated March 8, 2001 on the basis of which the Order No. 45-G dated March 8, 2001 was passed. This court further directed the learned District Judge to inform whether any enquiry was held on the basis of such letter. He was also asked to send all papers relating to the enquiry, if held. The matter was fixed for further hearing after arrival of the papers from the learned District Judge. 6. Pursuant to such direction, the learned District Judge sent the letter dated March 3, 2001 and also gave a report to this court. His report is quoted below:- "REPORT OF THE DISTRICT JUDGE, 24-PARGANASCN), BARASAT. Received a telephonic message on 14/01/2002 from the Registrar (Administration) of the Hon'ble High Court, Calcutta, conveying the order of the Hon'ble High Court, under C.O. No. 1486 of 2001 dated 14/01/2002 for sending the confidential letter dated 3rd March, 2001, on the basis of which Order No. 45-G dated 08/03/2001 was passed for transferring the Matrimonial Suit No. 33/97 from the 3rd Court of Add!. District Judge to the 4th Court of Addl. District Judge, Barasat. In compliance of the order of the Hon'ble High Court I am to state that the confidential letter of Dr. A. K. Roy dated 03/03/2001 (received by this Court on 05/03/2001) speaks by itself alleging the misconduct and immoral act of a Judicial Officer along with a lady who is a party of a divorce case and other cases of his Court. Besides, allegation of chatting with a lady party and taking tea with her inside the chamber of a presiding Judge appears to be highly immoral and undignified. Further, over the said allegation he expressed that 'I will not get justice if my suit as above is heard by the said Judge' and made a simple prayer for withdrawal of the case from the said Court to any other competent Court, 'If not otherwise inconvenience to a newly created 5th Court of Addl. District judge, Barasat'. No specific Misc. Case filed except a confidential letter. District judge, Barasat'. No specific Misc. Case filed except a confidential letter. The Court of the undersigned over the gravity of the allegation and simple prayer for transfer, took cognizance suo mota, avoided notice to other side and enquiry in this regard, only to avoid the scandal of a Judicial Officer in open Court or to set up enquiry lowering the prestige of the judiciary. District Judge, thus, suo mota, to avoid all future complications, scandal of a Judicial Officer, by invoking his administrative power simply withdrawn the case from his (Addl. Dist. Judge 3rd Court, Barasat) Court and transferred to another competent Court (Addl. Dist. Judge 4th Court, Barasat) so that neither of the party can be prejudiced and justice can well be done from all doubts and aspersion. No enquiry held in this connection." 7. On January 18, 2002 when the matter again appeared with the papers sent by the learned District Judge, Mr. Roy appearing for the husband submitted that his client had in the meantime found out the copy of the letter dated March 3, 2001. This Court on that day directed Mr. Roy to give a copy of the said letter to the learned advocate for the petitioner and the petitioner was given liberty to file affidavit disclosing whether the allegations made in the letter were true. The petitioner by filing the affidavit has denied the entire allegations of the opposite party. 8. After hearing the learned counsel for the parties and after going through the aforesaid materials on record, it is apparent that this is a case where a party to a litigation pending in a court approached the learned District Judge of that District thereby making some allegations against the Presiding Officer of that court by writing a confidential letter with a request to the learned District Judge to keep it secret and the learned District Judge has on the basis of such confidential letter taken action by transferring the suit to another court without giving either any opportunity of being heard to the other party of the litigation or even without making any inquiry whatsoever. 9. Now the question is whether such course is permissible. 10. 9. Now the question is whether such course is permissible. 10. Section 24 of the Code of Civil Procedure authorizes a District Judge to transfer any matter pending before any court subordinate to it to another court either suo motu or on the application of either of the parties. Once the matter has been transferred at the instance of a party, prior notice and opportunity of hearing must be given to the other side. In the present case, allegations of serious nature have been made against a party and also the Judicial Officer. The litigant who approached the learned District Judge had not the courage to assert such allegations openly and face trial. He intended to transfer the proceedings by stealth and that is why although he applied before the learned District Judge he requested him to keep the matter secret. It appears from the report given by the learned District Judge to this Court that he was impressed by the gravity of allegations but in the next line he described his action as a suo motu one to avoid "scandal of a Judicial Officer in open court" or " an enquiry lowering the prestige of the judiciary". 11. It is now settled law that if action under section 24 of the Code is taken by the learned District Judge at the instance of a party, prior notice must be given. [See Vivekananda Nidhi and Ors. vs. Asheema Goswami, 2000(10) SCC page 23]. In the instant case, it is apparent that the learned District Judge transferred the case at the request of the party. Therefore, his action cannot be described as 'suo motu' one. The learned District Judge further stated in his report that by invoking his 'administrative power' he withdrew the case. Administrative power of learned District Judge to transfer the case from one court to other also flows from section 24 of the Code but such administrative power can be exercised only under the circumstances mentioned in Rule 967(1) read With Rule 967(2) of the Civil Rules and Order. But, the present action cannot be said to be an 'administrative action' in terms of Rule 967 of the Civil Rules and Order. 12. But, the present action cannot be said to be an 'administrative action' in terms of Rule 967 of the Civil Rules and Order. 12. In my view, the learned District Judge acted illegally and with material irregularity of a serious nature in transferring the case on the basis of a letter written to him secretly without hearing the other side or even making any enquiry. I am unable to endorse the reason assigned by the learned District Judge in his report to this Court that to "avoid scandal of Judicial Officer in open court" or to avoid setting up "enquiry lowering the prestige of judiciary" he 'simply' transferred the case. If this type of allegations are made, it is the duty of the learned District Judge to verify it after giving opportunities to the parties concerned and ultimately if it is found that the allegations are correct, to take appropriate action by transferring the proceedings and also communicating his decision to the Administrative Committee of this Court for taking appropriate step; on the other hand, if it is established that the allegations are baseless, it is equally his duty not only to reject the prayer but also to take appropriate step under the provisions of Contempt of Courts Act by referring the matter to the High Court, so that such a dishonest litigant is severely punished. If the course adopted by the learned District Judge is approved, then the unscrupulous litigants will be encouraged to make this type of surreptitious allegations against Judicial Officer with a request to the learned District Judge to keep those secret and will be successful in transferring a case from a court competent to decide such case. In the instant case, the opposite party/wife in the affidavit before this court has disputed the allegations made in the said letter. 13. Under the aforesaid circumstances, I set aside the Order No. 45-G dated March 8, 2001 passed by the learned District Judge transferring the concerned suit from the 3rd Court of Additional District Judge to the 4th Court of that station and direct the learned District Judge to treat the said letter as an application under section 24 of the Code by starting a miscellaneous case and to decide the same in accordance with law. He is also free to take other administrative steps including holding of enquiry as he deems fit and proper. He is also free to take other administrative steps including holding of enquiry as he deems fit and proper. I make it clear that I have not gone into merit of the allegations and it is for the learned District Judge to consider on the basis of materials those will be placed before him whether a just case has been made out for transfer. 14. The revisional application is thus allowed with costs which I assess at 200 Gms. 15. In view of the serious nature of the irregularity committed by the learned District Judge, the learned Registrar General is directed to draw attention of the Administrative Committee of this Court as well as the learned Zonal Judge to this order. Revisional application allowed.