K.A. Suresh vs R. Girish

Aravind Kumar, J.—This writ petition is directed against the order dated 21.3.2016 passed by Principal City Civil and Sessions Judge, Bengaluru in Misc. No. 777/2015 where under petition filed by the petitioners under section 24, C.P.C., came to be rejected.

Facts in brief which has led to filing of this writ petition can be crystallised as under:

Respondent has filed two suits for recovery before City Civil Court, Bengaluru in O.S. Nos. 8162/2011 and 8164/2011 which was initially pending before Court Hall No. 28. These two suits came to be transferred on 21.1.2015 to Court Hall No. 5. Grievance of the petitioners who are defendants in both the suits that there was heated arguments between the Presiding Officer of Court Hall No. 5 and the learned Advocate appearing on behalf of defendants during the course of cross-examination of P.W. 1 and Counsel for the defendants submitted that he was of the opinion that atmosphere was not conducive to conduct trial in Court Hall No. 5 and hence, apprehending that there would not be fair trial conducted by the Presiding Officer of Court Hall No. 5, petition under section 24 of the Act was filed seeking for transfer of both the suits and to any other Court on the apprehension that Presiding Officer of Court Hall No. 5 is biased.

On said petition being registered, notice came to be issued. Plaintiff who had filed statement of objections contested the transfer petition and after considering the rival contentions raised at the Bar, Principal City Civil and Sessions Judge, Bengaluru has dismissed the Misc. petition by impugned order dated 23.1.2016 - Annexure-A.

It has been contended in this writ petition that learned Principal Judge committed a serious error in arriving at a conclusion that mere apprehension of bias would not entitle for transfer of cases from one Court to another or there was no material to establish that Presiding Officer was biased and exhibited hostile discrimination towards the petitioners i.e., defendants during the course of cross-examination of P.W. 1. It is also contended that on account of repeated intervention of Presiding Officer while the witness - P.W. 1 was being cross-examined, had annoyed the Counsel appearing for writ petitioners-defendants and this aspect was not taken note of by the Principal City Civil and Sessions Judge though brought to notice while passing the impugned order. On these grounds, it was contended that petitioners had reasonable apprehension of Presiding Officer (CCH No. 5) being biased and as such, defendants had raised a doubt that they would not be able to get fair trial and justice at the hands of Presiding Officer of Court Hall No. 5 and as such it was incumbent upon Principal City Civil and Sessions Judge to transfer both the suits to any other Judge of City Civil Court, Bengaluru except Civil Court at Mayohall Unit.

There cannot be any dispute to the proposition that general power of transfer and withdrawal being available to the District Court or the High Court as the case may be and the Principal City Civil and Sessions Judge would be empowered to withdraw any suit pending before Additional City Civil Court and transfer to another Court. Exercise of such power and application of mind of the Court has been explained by Hon''ble Apex Court while considering the ambit within which power under section 24 is to be exercised, in the case of Kulwinder Kaur alias Kulwinder Gurcharan Singh v. Kandi Friends Education Trust and others, AIR 2008 SC 1333 : (2008) 3 SCC 659 : AIR 2008 SCW 378 : 2008 (62) AIC 20 (SC) : 2008 (70) ALR 471 wherein it has been held that reasonable apprehension if raised by a party in a suit that he might not get justice from the Court where suit is pending and such apprehension is expressed, the Court examining the prayer tor transfer of the suit from said Court to another Court will have to put itself in the arm chair of the litigant and find out as to whether such apprehension expressed is reasonable or not. On such examination, if it is found that apprehension expressed is reasonable and any prudent person would have raised such apprehension, then, in such an event, prayer for transfer of the case can be entertained. However, on mere surmises and conjectures or where Presiding Officer were to intervene to prevent either scandalous questions being put to the witness which was not in the context of case warranting or irrelevant questions being put to the witness is being stopped by the Presiding Officer, said intervention cannot be construed as a reasonable apprehension entertained by the litigant or the Counsel representing such litigant who seeks for transfer. Mere apprehension of bias is not sufficient and it has to be based on proper and cogent material.

In the instant case, merely because Presiding Officer had interfered with the cross-examination by Counsel for defendant while the witness - P.W. 1 was being cross-examined and the Counsel was annoyed by such interference by the Presiding Officer cannot be the reasonable apprehension to entertain a prayer for transfer of case. It has been held by High Court of Allahabad that where person of ordinary prudence would raise stich apprehension or suspicion that he would not get justice since the opposite member was a member of the local Bar Association and that is why his case was defeated in the Trial Court was held to be not a reasonable suspicion in the case of Zohra Begum v. VIIth A.D.J. Bareilly, 2000 (39) ALR 604.

This Court, cannot lose sight of the fact that confidence in the Court on the part of both parties and of the public is a vital element in the administration of justice. If the admitted facts or act or at least suspicion backed by facts are capable of being used, to destroy this confidence, the supreme needs of justice are clearly such as not to allow the ordinary course of justice to be left polluted, but to transfer the cases from such Court where reasonable apprehension expressed is supported by material facts which person of reasonable prudence can visualise as being prejudicial to the case on hand. However, unscrupulous litigant who tries to indulge in Bench hunting under the guise of apprehension of bias against Presiding Officer cannot be permitted to raise such plea or when such plea is raised, it cannot be eschewed or accepted. The pure stream of administration of justice cannot be allowed to be polluted by such unscrupulous litigants, who at the drop of the hat, were to contend that he is having a reasonable apprehension that Presiding Officer is biased and this cannot be a ground to transfer the case and if such indulgence is shown, foundation of justice would crumble and it may lead to chaotic situation. This view is also supported by judgment of this Court in the case of M.V. Ganesh Prasad v. Vasudevamurthy and others, AIR 2003 Kar 39 and Smt. Sangeetha S. Chugh v. Ram Narayan V. and others, 1994 (4) Kar LJ 696 : ILR 1994 Kar 3318 : AIR 1995 Kant 112 where under it has been held that use of harsh language by the Presiding Officer would not constitute bias being attributed to the Presiding Officer.

This Court in order to ascertain as to whether there is reasonable apprehension in the mind of the petitioners for seeking transfer and the learned Counsel representing them had been unnecessarily interrupted while he was cross-examining P.W. 1 an explanation of the Presiding Officer of the Court in which suits are pending had been called for by this Court. A detailed report has been sent by the Presiding Officer, which would clearly indicate that learned Presiding Officer i.e., Presiding Officer of Court Hall No. 5 has taken steps in accordance with law and there being no stay of the higher Court, has proceeded with the trial and as and when situation arose, had closed the evidence and heard the arguments addressed by the learned Advocates appearing in both the suits. Learned Presiding Officer has categorically denied that he neither supported P.W. 1 nor anyone and he is neither interested or disinterested to dispose of the suits since as a serving Judge, he is bound to decide the case impartially and in accordance with law. In the light of the remarks offered by the Presiding Officer of Court Hall No. 5 as well as reasons assigned by learned Principal City Civil and Sessions Judge, Bengaluru in the impugned order this Court is of the considered view that it is not a case where this Court is required'' to exercise power under section 24, C.P.C. to transfer the pending suits from Court Hall No. 5 to any other Court at Bengaluru.

In that view of the matter, I proceed to pass the following :

ORDER

(1) Writ petition is dismissed with costs.

(2) Order passed by the Principal City Civil and Sessions Judge, Bengaluru dated 23.1.2016 in Misc. No. 777/2015 - Annexure-A is hereby affirmed.

(3) Petitioners to pay costs of Rs. 10,000/- to the respondent within two weeks from today.

(4) On failure of petitioners to pay costs, respondent herein shall file an affidavit in this writ petition regarding non-payment of such costs and in such an event, Registry shall issue a certificate to the respondent to enable him to recover costs by filing execution proceedings as if it were a decree.

Ordered accordingly.