Lorence Joseph vs Marykutty George and Kerala State Pollution Control Board

K.M. Joseph, J.—These transfer appeals arise between the same parties and hence a common judgment is pronounced.

The Appellant challenges the judgment of the learned Single Judge in which the transfer petition filed by him for transferring the suits from Munsiff Court Earattupetta to the Munsiff Court of Pala or Thodupuzha was dismissed and hence these appeals.

The Appellant is the Defendant in all the suits filed. He is conducting a Crusher unit. The suits are filed by the Plaintiff claiming injunction against the Appellant herein, restraining him from conducting the unit. The reason for request for transfer of the suits is extracted in the order of the learned Single Judge. Three reasons are referred. It is stated that learned Munsiff, without any valid reason, refused to record certain answers elicited by the counsel for the Petitioner during the course of examination of witnesses which are very relevant, as far as the contentions of the Petitioner are concerned. Even though the counsel for the Petitioner insisted for recording those answers, the Munsiff said that he will not record the same. Further complaint is that when the witnesses gave answers in favour of the Petitioner to some questions put by the counsel for the Petitioner, the learned Munsiff clarified and explained the questions to the witnesses enabling them to retract from the earlier answers and give answers in accordance with their contentions. Various comments were made by the learned Munsiff during the course of examination making the Petitioner honestly believe that he has already pre-judged the matter, it is submitted.

A report was called for by the learned Single Judge from the learned Munsiff, which reads as follows:

The above suit was listed to 11.3.11 on 28.1.11. On 11.3.11, the Plaintiff was present and examined as PW1. Exts.A1 to A6 were marked and evidence of Plaintiff was closed on the very same day. The Plaintiff was cross examined in length by the counsel for D1 and it runs upto nine pages. All the questions put to the witness were recorded by me and I have not interfered in the cross examination in any way, as alleged by the Petitioner in the aforesaid Tr.P.C. The allegation is baseless and untrue. I have not made any comments during the course of examination of witnesses, as alleged by the Petitioner. This allegation is also false and are not correct. On 11.3.11 after closing the evidence for the Plaintiff, the case was posted to 18.3.11 for the evidence of Defendant. On that day, the Defendant was absent and filed an application stating that, the Defendant is hospitalized and requested for an adjournment. I allowed the request and adjourned the case to 1.4.11. On that day, it was submitted that, the counsel for the Defendant is hospitalized and requested further time for defence evidence. On that day also, the request was allowed and the case was posted to 28.5.2011. On 28.5.2011 the counsel for the Defendant submitted that, the petition is pending before the hon''ble High Court of Kerala and further proceedings of this case was stayed by the hon''ble High Court. These are the proceedings in the aforesaid case before this Court.

It is humbly submitted that, the allegations of the Petitioner are not correct. The Defendant never appeared before this Court for examination in this case, even though he was given several chances. I have no approached the case in a prejudiced manner. The allegations in the aforesaid petition in such a way, is baseless and is not correct. It is humbly submitted that, your lordship may take appropriate decision in the aforesaid petition."

In view of the report, the petitions were dismissed.

We heard learned senior counsel for the Appellant and the learned Counsel for the Respondents.

The learned senior counsel for the Appellants reiterated his contentions, in particular, he emphasized on first two aspects. He also relied on the decision of the learned Single Judge of this Court reported in Rev. Fr. Punnen Thomas and Anr. v. Moran Mar Bassalios and Ors. (1963 KHC 360).

No doubt, as far as the question by Court are concerned, the learned senior counsel for the Appellant would submit that though there is power for the Judge to put questions u/s 165 of the Indian Evidence Act, 1872, the questions which may be put up by the Court must be recorded as questioned by the Court.

Of course the Petitioner had a case that he was partly examined, where as the learned Munsiff has commented that the Appellant has not appeared for examination, even though he was given several chances.

Needless to say, we expect the Judicial Officer to act in a manner in which there will be no reason for any sort of complaint.

We would think that we need not interfere with the order of the learned Single Judge. We confirm the order of the learned Single Judge and dismiss the Transfer Appeals.