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2010 DIGILAW 382 (KAR)

Syed Abdul Khader v. K. O. Verghese

2010-03-24

ARAVIND KUMAR

body2010
ORDER Aravind Kumar, J: The plaintiff in the Court below has questioned the correctness and the legality of the order passed in Miscellaneous Petition No. 43/2009 dated 02.01.2010 by the Principal District Judge, Hassan. 2. The facts in nutshell are as follows: The petitioner herein instituted a suit in O.S.No. 137/2000 on the file of the Civil Judge (Sr.Dn.). Hassan for recovery of money in a sum ofRs.2,40,808/- together with interest and cost. On account of establishment of Civil Judge (Sr.Dn.) Court at Sakaleshapura, the said suit came to be transferred to the Court or the Civil Judge (Sr.Dn), Sakaleshapura and the suit came to be renumbered as O.S.No.64/2007. During the pendency of the suit before the Civil Judge (Sr. Dn.), Sakaleshapura the defendant is said to have filed two applications, one for production of a photocopy of agreement dated 29.12.1997 which contained the original endorsement made by the Sub-Registrar, Sakaleshapura and another application to lead further evidence. The Trial Court allowed both the applications namely I.A.No 8 and 9 by order dated 01.07.2009 and the said order has admittedly became final. 3. After allowing these two applications in order to establish his defence, the defendant is said to have tendered evidence of one Sri.B. Parameshwara, Advocate as DW.2 and said Advocate was examined. It was stated by the petitioner plaintiff that certain questions were put to DW.2. Advocate and the Court below did not record those questions which were put to the Advocate and as such plaintiff presumed that he would not be able to get justice at the hands of the Civil Judge (Sr.Dn.,) Sakaleshapura and this apprehension in his mind made him to move a petition under Section 24 of Civil Procedure Code before the Principal District and Sessions Judge. Hassan in Miscellaneous Petition No. 43/2009 seeking for transfer of case from Sakaleshapura to any other Court in Hassan. The said petition was resisted by the respondent-defendant by filing a detail statement of objections denying the petition averments. 4. After hearing the arguments advanced by the learned Advocates for the parties, the Court below by its order dated 02.01.2010 dismissed the petition holding that there is no ground made out by the petitioner plaintiff for transferring the suit from the Civil Judge (Sr. Dn.), Sakaleshapura to the Civil Judge (Sr.Dn.), Hassan or to any other Court at Hassan. 4. After hearing the arguments advanced by the learned Advocates for the parties, the Court below by its order dated 02.01.2010 dismissed the petition holding that there is no ground made out by the petitioner plaintiff for transferring the suit from the Civil Judge (Sr. Dn.), Sakaleshapura to the Civil Judge (Sr.Dn.), Hassan or to any other Court at Hassan. It is this order which is now assailed in the present revision petition by the petitioner-plaintiff. 5. I have heard Sri. Vishwanath R.Hegde learned Counsel appearing for the petitioner and Sri. B.M. Krishna Bhat, learned Counsel appearing for the respondent. 6. Sri.Vishwanath Hegde would contend that learned District Judge has failed to exercise jurisdiction in accordance with law since no reasons have been assigned specifically in the order impugned in this revision petition as to why petition under Section 24 filed by the revision petitioner does not merit consideration. Accordingly he submits that on account of reasons having not been assigned by the District Judge, the same requires to be remanded back for fresh consideration Dwelling upon merits of the case, he would contend that Civil Judge (Sr.Dn.), Sakaleshapura, while cross-examining the witness DW. 2 had been reluctant to record certain questions and had expressed opinion on merits of the ease and thus the plaintiff has a reasonable apprehension that he would not get fair justice at the hands of the said Court and seeks for transfer of case from Sakaleshpura to any other Court in Hassan and in support of his submission he relies upon the decision of the Hon'ble Supreme Court in the case of P.K. Ghosh, I.A.S. and Another Vs. J.G. Rajput reported in AIR 1996 SC 513 by drawing the attention of the Court to Paragraph 9. Accordingly he seeks for setting aside the order dated 02.01.2010 passed by the Principal arid District. Session Judge. Hassan and allowing this revision petition. 7. Per contra Sri. B.M. Krishna Bhat, learned Counsel appearing for the respondent would submit that DW.2-Advocate Sri. B. Parameshwara, who had been examined on behalf of respondent-defendant has c1earJy admitted certain facts in his cross-examination which was in favour of the application-plaintiff and the Civil judgment (Sr. Session Judge. Hassan and allowing this revision petition. 7. Per contra Sri. B.M. Krishna Bhat, learned Counsel appearing for the respondent would submit that DW.2-Advocate Sri. B. Parameshwara, who had been examined on behalf of respondent-defendant has c1earJy admitted certain facts in his cross-examination which was in favour of the application-plaintiff and the Civil judgment (Sr. Dn.), Sakaleshapura had not formed an opinion as contended by the revision petitioner and it is an attempt made by the revision petitioner-plaintiff to drag on the proceedings and as such seeks for dismissal of the revision petition. 8. Having heard the learned Counsel for the parties the following points arises for my consideration: 1) Whether the revision petitioner-plaintiff has made out a case for transferring O.S.No.64/2007 pending on the file of the Civil Judge (Sr.Dn.). Sakaleshapura to any other Court at Hassan for adjudication? 2) Whether the order passed by the Principal District Judge. Hassan in Misc. Petition No.43/2009 suffers from any infirmity either in law or on facts? 3) What order? The point Nos. 1 and 2 formulated hereinabove being inter linked and hence same are taken up for consideration jointly. Re: Point (i) & (ii): 9. A perusal of the petition filed in Misc. Petition No.43/2009 discloses that suit in O.S.No. 137/2000 was originally filed on the Civil Judge (Sr.Dn.), Hassan and on account of the establishment of Court of Civil Judge (Sr.Dn.) at Sakaleshapura, the said suit namely O.S.No.l37/2000 came to be transferred and renumbered as O.S.No.64/2007. The evidence that "has been recorded before the Court of Civil Judge (Sr.Dn.), Sakaleshapura is made available by the learned Counsel for the petitioner before this Court at the time of addressing the arguments. A perusal of the same would disclose that defendant in the said suit O.S.No.64/2007 was examined on 10.04.2008 i.e., subsequent to the transfer and he has been cross-examined in extenso. When the matter was posted for further evidence an application under Order 8, Rule 1(3) of Civil Procedure Code was filed by the defendant on 04.03.2009 seeking leave of the Court to produce an alleged agreement of sale which contained the endorsement made by the Sub-Registrar, Sakaleshapura and also application under Order 18, Rule 17 seeking for permission to lead further evidence. Both these applications had been allowed by the Court below by order dated 01.07.2009. Both these applications had been allowed by the Court below by order dated 01.07.2009. Admittedly the revision petitioner-plaintiff has not challenged this order and it has become final. 10. The principal contention of the petitioner- plaintiff is that these two I.A. Nos. 8 and 9 referred to supra was allowed without hearing the petitioner and it is against the principles of natural justice and thus by allowing these two applications, the learned Civil Judge (Sr. Dn.), Sakaleshapura had formed an opinion and this also was the contention of the petitioner in Misc. Petition. No.43/2009. The plea in Misc. Petition No.43/2009 in the words of the petitioner reads as under: "Allowing the I.As.8 and 9 without hearing the petitioner was one sided against to the natural justice, the learned Civil Judge (Sr.Dn.), Sakleshpur has formed an opinion prejudice to the interest of the petitioner" To supplement this contention it is further contended by the petitioner before the District and Session Court, Hassan that the Civil Judge (Sr.Dn.), Sakaleshapura failed to record certain material points which were in favour of the petitioner and was reluctant to record this question which were put to DW.2 namely Sri.B.Parameshwara, Advocate who was said to be the custodian of the documents in question. If this plea is to be appreciated it would be necessary to peruse and scrutinize the evidence of DW.2 which was made available to the Court at the time of arguments. A perusal of the same reveals that witness DW.2 has been cross-examined extensively and when certain documents were produced through this witness there has been no objection raised by the petitioner-plaintiff. Even during the course of the cross-examination, petitioner-plaintiff has not made any prayer to the Court below seeking for recording such objections which has been sought to be put forward In the Misc. Petition. There is no demur of this witness found in the cross-examination and as such the contention raised by the learned Counsel for the petitioner that several material points which were in favour of the petitioner has not been recorded by the Court below cannot be accepted. 11. It was further contended by Sri.Vishwanath Hegde, that the Civil Judge (Sr.Dn.), Sakaleshapura had expressed opinion during the course of hearing the matter on merits and as such the plaintiff had a reasonable apprehension that he may not get fair justice at the hands of the Civil Judge (Sr.Dn.), Sakaleshapura. 11. It was further contended by Sri.Vishwanath Hegde, that the Civil Judge (Sr.Dn.), Sakaleshapura had expressed opinion during the course of hearing the matter on merits and as such the plaintiff had a reasonable apprehension that he may not get fair justice at the hands of the Civil Judge (Sr.Dn.), Sakaleshapura. This apprehension which has been expressed by the plaintiff in Misc. Petition has been denied by the respondent-defendant in Misc. Petition No.43/2009 in the objections filed to the main petition. The Courts cannot read into the minds of the parties and ascertain from their minds as to what their apprehension is, while administering the justice. This Court would be going by the records as produced by the parties. The mere apprehension itself would not be sufficient to allay fear of such apprehension and something much more than this alleged apprehension that is required namely if this apprehension of the petitioner was there as contended by him before the Court below, nothing prevented the petitioner-plaintiff to pursue his remedy of questioning or assailing the orders passed in I.A.Nos. 8 and 9 which according to him was prejudicial particularly since there was violation of natural justice according to the petitioner-plaintiff. Having not done so and having acquiesced himself by participating in the proceedings and cross-examining witness DW.2 in extenso would now be estopped from contending contrary and that too expressing apprehension about getting fair justice at the hands of the Civil Judge (Sr.Dn.), Sakaleshpura. In view of the same, I am unable to accept the contention raised in the revision petition that petitioner-plaintiff would not get fair justice at the hands of the Civil Judge (Sr.Dn.), Sakaleshapura. 12. The learned Counsel for the petitioner-plaintiff has referred to the decision of P.K.QHOSH referred to supra and has brought to the notice of the Court para 9 at page 516 which reads as under: "A basic postulate of the rule of law is that justice should not only done but it must also be seen to be done. If there be a basis which cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular Judge and there is no compelling necessity, such as the absence of an alternative. It is appropriate that the learned Judge should rescue himself from the Bench hearing that matter. If there be a basis which cannot be treated as unreasonable for a litigant to expect that his matter should not be heard by a particular Judge and there is no compelling necessity, such as the absence of an alternative. It is appropriate that the learned Judge should rescue himself from the Bench hearing that matter. This step is required to be taken by the learned Judge not because he is likely to be influenced in any manner in doing justice in the cause, but because his hearing the matter is likely to give rise to a reasonable apprehension in the mind of the litigant that the mind of the learned Judge, may be subconsciously, has been influenced by some extraneous factor in making the decision, particularly if it happens to be in favour of the opposite party. Credibility in the functioning big of the justice delivery system and the reasonable perception of the affected parties are relevant considerations to ensure the continuance of public confidence in the credibility and impartiality of the judiciary. This is necessary not only for doing justice but also for ensuring that justice is seen to be done." 13. The principles enunciated in the said judgment cannot be disputed. However, it has to be examined to what extent the same is applicable to the facts of the present case. It is no doubt true that in the administration of justice, any apprehension expressed by a litigant about not getting justice at the hands of the Courts will have to be examined not as a matter of course but with circumspection and any apprehension expressed by a litigant merely because he has received an adverse order would not fortify his apprehension and apprehension should have got crystallized itself into a situation which may ultimately lead to a conclusion that such apprehension expressed by the litigant before the Court deserves merit. On examination of the facts of the present case as observed herein above, the consideration of the evidence on record does not disclose that apprehension of the plaintiff had crystallized itself into a situation where the possibility of such apprehension would have yielded in a negative result to the petitioner plaintiff. 14. In the circumstances. I am unable to accede to the request of the learned Counsel for the petitioner that the apprehension of the plaintiff deserves to be accepted. 14. In the circumstances. I am unable to accede to the request of the learned Counsel for the petitioner that the apprehension of the plaintiff deserves to be accepted. Accordingly, the same is rejected and it is held that the judgment relied upon by the learned Counsel for the petitioner is not applicable to the facts of the present case. Accordingly points No.1 and 2 are answered by holding that order passed by the Courts below does not suffer from any infirmity either in law or on facts and the petitioner has not made .any grounds whatsoever for transferring the suit O.S. 64/07 pending on the file of the Civil Judge (Sr.Dn.), Sakaleshapura to any other Court at Hassan. Re: Point (iii): In view of the above, the revision petition is devoid of merits and is accordingly rejected. No order as to costs.