Babu vs Balappa and Others

K.N. Phaneendra, J.—The petitioner approached this Court seeking transfer of O.S. No. 88/2013 from the Court of Senior Civil Judge, Basavana Bagewadi to the Court of Senior Civil Judge, Bijapur, and also sought for setting aside the order passed by the Principal District Judge, Bijapur dated 01.12.2014 wherein he refused to transfer the suit in OS No. 88/2013 as sought for.

After filing of this petition, notices were ordered to the respondents and all the respondents were served with the notice by RPAD, in spite of that, they have remained absent before the Court. The learned counsel produced the certified copy of a memo filed by Respondent Nos. 8 to 15 before the District and Sessions Judge, Bijapur in C. Misc. No. 24/2014 wherein they have stated that they have no objection to transfer the above said case as prayed by the petitioners before the District Court.

Respondent Nos. 1 to 7 in fact are the parties before the trial Court. It is the case of the petitioner that Respondent Nos. 1 to 7 herein have filed suit in O.S. No. 406/2011 before the Senior Civil Judge, Basavana Bagewadi, for declaration that they are the absolute owners in possession of the land bearing Survey Nos. 963 and 964 of Ukkali village of Basavana Bagewadi Taluk.

The petitioner herein was Defendant No. 1 in the said suit. He contested the said proceedings and after due contest, his suit was dismissed on merits. But, the Trial Court in the said suit has framed Issue No. 4, which affected the rights of petitioner/Defendant No. 1. The said issue is as under:--

"Issue No. 4: Whether the defendant proves that the suit properties were the joint family properties and the same was fallen to the share of his father ?"

Answering the said issue in the negative, the Court held that Defendant No. 1 did not prove that the suit properties were the joint family properties and the same were fallen to the share of his father. It appears being aggrieved by the said finding, the petitioner has preferred an appeal in RA No. 108/2013 before the District Judge, Bijapur, and the same is pending.

Taking advantage of the observations and findings in O.S. No. 406/2011, Respondent Nos. 1 to 7 have also filed a separate suit in O.S. No. 88/2013 before the Senior Civil Judge, Basavana Bagewadi, Bijapur, for partition and separate possession of the alleged half (1/2) share in the said properties. In fact, the cause of action pleaded by Respondent Nos. 1 to 7 in the said suit is shown to be the rendering of the judgment by the trial Court in O.S. No. 406/2011. The earlier proceedings were held against the defendant/petitioner so far as Issue No. 4 is concerned. In the said suit, the petitioner has also filed an application before the Principal District Judge, Bijapur, making grounds for transferring of the said suit specifically on the ground that the same judge who has already given his finding on Issue No. 4 in O.S. No. 406/2011 is trying the suit in O.S. No. 88/2013. As the observation and the finding has already been given by the said Judge, he may not take a different view so far as the said factual matrix on which the findings have been given to Issue No. 4 in O.S. No. 406/2011. Therefore, the entire defence of the petitioner will be frustrated if the suit is continued before the same judge in the suit in O.S. No. 88/2013. He reasonably apprehend that he may not get any finding in his favour when the same judge has already given a finding against the petitioner on Issue No. 4 in the earlier suit, therefore, he sought for transfer of the said suit. But the District Judge has rejected the said application on the sole ground that it may cause inconvenience to the parties to the proceedings and prejudice the rights of the parties to the proceedings.

It is observed by the Sessions Court that the apprehension of the petitioner is not based on any legal principles. The contention of the petitioner cannot be accepted because he has specifically stated therein that he has already preferred an appeal. Therefore, whatever the proceedings that may take place in O.S. No. 88/2013 is subject to the decision in R.A. No. 108/2013. But in my opinion, the said observation cannot be sufficient to reject the application. Though issue No. 4 and findings on it have been challenged in R.A. No. 108/2013, but the trial Judge may not stay his hands till the disposal of R.A. No. 108/2013. If for any reason, the trial Court proceed with the case in O.S. No. 88/2013, then the opinion already expressed by the learned Judge in O.S. No. 406/2011 would be working in his mind so that he may not change his opinion in the present suit in O.S. No. 88/2013. In such an eventuality, it cannot be said that the petitioner would get a fair proceeding so far as his defence is concerned. As rightly contended by the learned counsel, Justice is not only to be done, but it appears to have been done. This shows that the judge who presides over the matter should not have any type of bias such as, personal bias, pecuniary bias or bias over the subject matter of the proceedings. Therefore, I am of the opinion that this is a fit case where the relief of transfer of the suit as sought could have been granted by the learned District Judge. In this background, the learned counsel also drawn my attention to a Thimme Gowda Vs. Abbas Ali Bohra, (1995) ILR (Kar) 1818 : (1995) 5 KarLJ 130 wherein this Court had an occasion to deal with the similar set of facts. In the case referred to supra, the plaintiff in O.S. No. 3656/1992 had sought for transfer of the said case on the ground that the same Presiding Officer viz, 20th Additional City Civil Judge has passed an order in the revision petition as Presiding Officer of the Revisional Court wherein the proceedings under Section 145 Cr.P.C. was challenged in the said revision petition and subsequently, with regard to the possession of the property of the plaintiff in O.S. No. 3656/1992. The Court has observed that the same Judge who has already given finding with regard to the possession of the property and the suit is also pending with regard to the question of possession before the same Judge, therefore, the judicial propriety requires that the said suit has to be transferred from the same Judge. Making such observation, the Court had ordered for transfer of the suit.

In the case on hand also the same set of facts are involved, as I have already referred. The District Judge has also dismissed the said petition on the ground that if the relief of transfer is granted, the other defendants would suffer and they have to run from pillar to post. For this, the learned counsel has contended that the very Ukkali Village where Respondent Nos. 1 to 7 are residing is at equal distance of 20 Kms. from Bijapur, therefore, no hardship or inconvenience would be caused to other side.

In order to counter this argument, the respondents have not raised their little finger before this Court by filing any objections nor they countered the arguments of the learned counsel. It makes no difference even if this case is transferred to the Court at Bijapur, as the parties are residing at an equal distance compared to Basavana Bagewadi. Therefore, in order to see that a fair opportunity is given and fair justice is administered between the parties, I feel it just and necessary to transfer the suit in O.S. No. 88/2013, as sought in the petition. Hence, the following order:--

ORDER

The petition is allowed. Consequently, the suit in O.S. No. 88/2013 pending on the file of Senior Civil Judge, Basavana Bagewadi is hereby withdrawn and the same is transferred to the Court of Senior Civil Judge, Bijapur, as sought by the petitioner. The Transferor Court is hereby directed to transmit the entire records forthwith to the Court of Senior Civil Judge, Bijapur.

The senior Civil Judge, Bijapur, is directed to secure the presence of the parties by issuing fresh process and thereafter proceed with the case in accordance with law.