Sudalaikannan and Sornakala vs Lakshmipriya and Others

K.B.K. Vasuki, J.—The Defendants 2 and 3 in O.S. No. 128 of 2008 are the Petitioners herein. The suit is filed by the Respondents 1 and 2 herein as the Plaintiffs 1 and 2 therein for the relief of partition and the suit was seriously contested by the Defendants 2 and 3. After pleading is completed and issues are framed, the suit stood adjourned for trial and after the examination of the Plaintiffs'' side witnesses, the second Defendant entered the witness box as D.W.1 and in the course of his chief-examination, he sought to produce one document and the same was objected to on the ground of payment of insufficient stamp duty. The Defendants 2 and 3 have also filed I.A. No. 211 of 2010 to receive the document as one of exhibits with 10 times stamp duty penalty and the said I.A was seriously contested by the Plaintiffs and the trial court has, after due contest, passed a detailed order on 13.09.2010 thereby directed the Petitioners/Defendants to pay a sum of Rs. 11,25,641/- as stamp duty penalty within one month. Aggrieved against the same, the Defendants preferred C.R.P. No. 2054 of 2010 before this Court and this Court by order, dated 07.01.2011, partly allowed the Civil Revision Petition by confirming the order of the trial Court with regard to the nature of the document with further direction issued to the trial Court to collect the stamp duty penalty on the basis of extent of right of executant of the document in question. The trial court has in compliance with the order of the High Court calculated the stamp duty penalty but wrongly at Rs. 6,95,819/- and the same was subsequently at the instance of the Plaintiffs and on the basis of the memo filed by the Plaintiffs, corrected as Rs. 10,07,063/-. The trial Court has also by order dated 17.02.2011 granted time till 24.02.2011 to comply with payment and thereafter extended the time upto 03.03.2011 to deposit the stamp duty penalty.

In the meanwhile, the Defendants have come forward with this Transfer Civil Miscellaneous Petition on 01.03.2011 on the ground that the stamp duty penalty calculated lesser on earlier occasion was enhanced by way of correction without calling upon the Petitioners to file their own calculation memo. It is their further case that after the stamp duty penalty is arrived at on 17.02.2011, the learned Counsel on record for the Defendants 2 and 3 sought reasonable time to prefer SLP before Apex Court. Their requests made for adjournment on that ground on 17.02.2011 and 03.03.2011 are declined by refusing to receive the petition for adjournment and by passing oral remarks in the open Court that the matter will not be further adjourned and the matter will be disposed of on merits if the deficit stamp duty is not paid within the stipulated time. The Defendants 2 and 3 as Petitioners in this present Transfer Civil Miscellaneous Petition and in the additional affidavits dated 04.03.2011 and 17.03.2011 contended that the failure on the part of the trial court in granting adjournments as sought for and the refusal of the Presiding Officer to receive the adjournment petition and in returning it raises genuine apprehension that they are not likely to get justice in the hands of the Presiding Officer and the same compelled them to approach this Court to transfer the same from the Court concerned.

It may be true that the Petitioners have raised specific averments against the Presiding Officer in their original and additional affidavits particularly in the additional affidavits. In the second additional affidavit, the averments raised by the Petitioners are that the suit proceedings were stayed by the High Court during the pendency of the Transfer Petition on 08.03.2011 and the Petitioner was in treatment from 04.02.2011 to 09.02.2011 and was discharged from the hospital on 09.02.2011 and he filed an application for adjournment on health ground on 07.03.2011 and the petition was taken up for hearing on 08.03.2011 on which date the Presiding Officer made some open comments in the Court Hall to the effect that she is not bothered about the pendency of the Transfer Petition and by the time the Transfer Petition is disposed of, she will dispose of the suit on merits and by making such comments, the matter stands adjourned to 09.03.2011 for cross-examination of the Defendant side witnesses, on which date DW1 could not attend the Court and he filed an application for appointment of an Advocate Commissioner for recording his cross-examination and when the same was presented in open court, it was refused to be received by the Office and that when the same was insisted to be received, the same was received and returned. It is further stated therein that despite representation made to the Court concerned about the stay order granted by this Court till 22.03.2011, the suit stood adjourned to 19.03.2011 before the expiry of the stay order and the conduct of the Presiding Officer in refusing to receive the adjournment petition and in adjourning the matter to future date of hearing much before the expiry of the stay order would to great extent justify the apprehension expressed herein in support of the transfer sought for.

The averments so raised on the side of the Petitioners are so seriously denied by the Respondents 1 and 2 herein in the counter affidavit and according to the Respondents, the proceedings are being conducted by the trial court in such a manner which does not call for any adverse notice and that the petition is filed only to drag on the proceedings which was initiated in the year 2008 and the allegations levelled against the Presiding Officer are false and unfair.

After the receipt of the transfer petition and after receipt of the additional affidavits remarks are called for from the Presiding Officer concerned and the Presiding Officer concerned has in her remarks dated 16.03.2011 and 06.04.2011 denied the allegations raised in the transfer petition and additional affidavits and she has explained into detail as to the circumstances under which the arithmetic error in calculating the penalty amount payable by the Defendants occurred and is corrected and the reason for refusing to receive the petition for adjournment on more than one occasion.

The facts narrated in detail above would reveal that the trial Court has not unjustifiably refused to grant adjournment. Though the order directing the Defendants to pay huge sum by way of stamp duty penalty is made as early as on 13.09.2010 and the same is confirmed by the High Court on 07.01.2011, the proceedings including the payment of stamp duty penalty stood adjourned as sought for by the Defendants to enable them to question the correctness of the order passed by the lower Court as confirmed by the High Court before the Apex Court and the Defendants were on the same ground able to get postponement of further proceedings without any difficulty till 03.03.2011 on which date onwards, the trial Court insisted the Defendants to get along with the matter after paying stamp duty penalty and the same compelled the Defendants to come forward with the Transfer Petition mainly by complaining about the conduct of the Presiding Officer in refusing to adjourn the proceeding and in insisting the payment of stamp duty penalty.

Though, according to the learned Counsel for the Petitioners/Defendants, the trial Court has been unjustifiably demanding the parties to proceed with the matter without even waiting for the decision of the Apex Court, thereby depriving their fair opportunity to pursue their remedy before the Supreme Court on merits, the Defendants are not ready to get along with the proceedings even after the rejection of the SLP preferred by the Defendants before the Apex Court against the order directing payment of stamp duty penalty that too without granting any further time for complying with the order under challenge. The Petitioners pending this Tr.C.M.P., finding no other option to proceed with the case, appeared to have approached the trial Court with an application on 08.03.2011 to stay the proceedings on the ground that the second Defendant, who is the first Petitioner herein was unwell and was under treatment between 04.02.2011 and 09.02.2011 and he is advised not to undertake any travel for three months and the petition was received and returned.

In my considered view, if the reasons set out in the original and additional affidavits filed in support of this Tr.C.M.P. regarding loss of confidence in the trial Court are viewed in the light of the remarks of the Presiding Officer and the facts and circumstances involved therein, the same do not appear to justify the apprehension raised against the officer concerned and are not sufficient enough to effect transfer of the case as sought for herein.

The main grievance raised by the Petitioners in the original affidavit and additional affidavits are that they are likely to be deprived of their opportunity to pursue their remedy before the Supreme Court. The Petitioners/Defendants 2 & 3, having failed to obtain any favourable orders before the Supreme Court, ought to have been ready to co-operate with the trial Court for further proceedings, whereas the Defendants 2 & 3 appeared to have filed an application for adjournment on health ground of the first Petitioner/second Defendant which was not raised at the earliest possible time. Though the second additional affidavit proceeds as if the first Petitioner/first Defendant was under treatment between 04.02.2011 to 09.02.2011 and was advised to take rest for few days, the said reason is not mentioned either in the original affidavit or in the first additional affidavit. Further it is not disputed that the second Defendant who sworn the second additional affidavit was not personally present in the open Court on the date of hearing on 08.03.2011 as such he is not the competent person to speak as to what exactly transpired in the open Court hall on 08.03.2011 and what remarks was actually passed by the Presiding Officer. When the Presiding Officer specifically denied the allegations raised in the original and additional affidavits, the allegation raised in the second additional affidavit sworn in by the person who was not actually present in the Court hall without supportive affidavit by any of the parties who was present in the Court hall or by the advocate concerned cannot be accepted. Except allegation of refusal on the part of the trial Judge in granting adjournment, no other allegation much less serious allegation is raised by the Petitioners as if the Presiding Officer is otherwise biased either in favour of the Plaintiffs or against the Defendants.

Considering the year in which the suit is filed, stage of the suit, which is in the midst of trial at the stage of examination of the Defendants and the conduct of the parties and the total number of pendency in the Court concerned, as explained in the remarks furnished by the Presiding Officer, the circumstances in which the Presiding Officer refusing to grant adjournment and insisting the parties to get along with the matter after paying stamp duty penalty, that too after the case was disposed of by the Supreme Court, cannot be said to be in any manner biased or cannot form any basis for any apprehension much less reasonable apprehension in the mind of the Petitioners/ Defendants 2 & 3. Though an attempt is made on the part of the Petitioners/Defendants to find fault with the Presiding Officer in correcting the quantum of the amount payable by way of penalty, no allegation is raised that the quantum so arrived at is erroneous. Though normally any Court is not supposed to refuse to receive any petition, the stray act cannot be a ground to seek transfer of the case from the file of the particular Court.

At this juncture, the learned Counsel for the Petitioners has also cited the following authorities a) Lalita Rajya Lakshmi and Another Vs. State of Bihar and Another, , b) AIR 1958 MP 50 (Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati v. Ramji Tripathi and Ors.), c) AIR 1958 Mani 27 (Thounaojam Ningol Indrani Devi and Ors. v. The Municipal Board of Imphal and Ors.), d) Prem Kishan Vs. Bundu and Others, and e) AIR 1964 P&H 277 (Dr. Hardit Singh Jaswant Singh v. Bhagat Jaswant Singh and Ors.) in support of his contention that when there are circumstances in a case which raised reasonable apprehension in the mind of the person applying for transfer that he may not have fair and impartial trial and may not get justice in the Court, where the suit is pending, the case should be transferred and in order to decide whether the facts and circumstances are sufficient to raise such a reasonable apprehension in the mind of the party applying for transfer, the Court should put himself in such party''s armchair and the fundamental importance is that justice should not only be done but should manifestly and undoubtedly seem to be done and the confidence in the Court administering justice on the part of both parties and of the public is a vital element in the administration of justice and nothing should be allowed to happen to destroy the confidence and no proceeding should be allowed to be conducted with biased frame of mind and with want of open mind and no inconvenience would be caused to the Respondents if suit is transferred to another.

The ratio so laid down by different Courts in the authorities above cited is, in my considered view, not strictly applicable to the facts of the present case. Even in the judgment cited on the side of the Petitioners/Defendants 2 & 3 reported in AIR 1964 P&H 277 (Dr. Hardit Singh Jaswant Singh v. Bhagat Jaswant Singh and Ors.), the Punjab and Hariyana High Court was of the view that mere refusal to grant adjournments, after the closure of the evidence, could by no means give raise to any reasonable apprehension in the mind of the reasonable man that the judge was unduly biased in favour of one of the parties. Further our High Court has also in the judgment reported in 1998 (II) CTC 308 (Arulmigu Alavandar Charities, Mahabalipuram rep. by its Executive Officer v. R. Kanniappan and seven others) cited on the side of the Respondents clearly observed that the refusal of the Court, which was proceeding with the case on day-to-day basis, to grant adjournment is not a ground to apprehend that such a party is not likely to have fair trial before the Court and such an apprehension which is not subjective but objective is not reasonable, when it is duty of the lawyers to assist the Court. It is further observed that the Judge who hears and records evidence is better person to write judgment than another Judge who merely hears arguments and reads evidence for writing judgments. As of now the SLP filed by the Defendants is disposed of and the Defendants are bound to participate in further proceedings. Applying the same ratio laid down by our High Court, this Court finds no reason much less valid reason to order transfer as sought for herein.

In the result, this petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. No costs.