Rudrappa vs M.R. Shivarudraiah and Others

B.S. Patil, J.—This revision petition is filed challenging the order dated 24.03.2015 passed by the Principal City Civil and Sessions Judge, Bengaluru, allowing the application filed by the respondents herein under Section 24 of Code of Civil Procedure and withdrawing O.S. No. 1209/2009 pending on the file of City Civil Court Hall No. 39 and transferring the same to Court Hall No. 14 for disposal in accordance with law.

Petitioner herein is the plaintiff in O.S. No. 1209/2009. Said suit is filed by the present petitioner seeking partition and separate possession of suit schedule property against respondent Nos. 1 to 4 herein. Respondent No. 3 herein has filed another suit in O.S. No. 3773/2009 against respondent No. 4 seeking partition and separate possession of the suit schedule property therein. These two suits have been ordered to be clubbed and heard together by a consent order passed on 16.01.2012. There was one more suit for ejectment filed by the first respondent against second respondent herein in O.S. No. 4177/2009. At the instance of the petitioner herein/plaintiff in O.S. No. 1209/2009, the said suit was also ordered to be clubbed and heard together with the other two suits. This was challenged by the first respondent in CRP No. 355/2012. By order dated 11.03.2013 the revision petition was allowed and the order passed directing clubbing of O.S. No. 4177/2009 vide order dated 21.04.2012, was set aside. Thereafter, the two suits in O.S. No. 1209/2009 and O.S. No. 3773/2009 have continued to be heard together.

Issues have been framed and the two cases are set down for evidence. At this stage, respondent/defendant No. 1 in O.S. No. 1209/2009 has moved the application before the Principal District Judge seeking transfer of the case from Court Hall No. 39 to another Court.

The first respondent contended in the application filed under Section 24 CPC that though he (first defendant in O.S. No. 1209/2009) made a mention to the Court below that already there was a partition during the year 1995 effecting division in the properties and that there was no joint family in existence, the Court below failed to take into consideration the said aspect and has proceeded further in the matter. It was alleged that the Court below was biased in considering the submissions made by the learned Advocate appearing on behalf of first defendant. It was also urged that when the plaintiff filed an application under Order 6 Rule 17 CPC, the same was allowed. Even when the fourth defendant filed an interlocutory application for amendment of the written statement the same was also allowed but, the application filed by the first defendant seeking amendment was rejected. Hence, the petitioner/first defendant urged that he had no confidence in the Court.

The learned Principal District Judge having considered these contentions has observed in paragraph 4 of the impugned order that it was painful to note that such averments made did not stand to reason nor appeared to be probable so as to attribute bias against the Presiding officer and it was improper on the part of petitioner to make such allegations. The Court below has further observed that the issue whether there was a previous partition or not would be considered at an appropriate stage and that there was absolutely nothing to demonstrate how and why the Court was biased against the advocate for the first respondent. It is also opined that if the application filed under Order 6 Rule 17 by the plaintiff had been allowed without considering the documents and submissions, it was open for the first defendant to challenge the said order and that in the petition filed seeking for transfer of the case grant or refusal of such amendment sought would not be gone into. Having assigned the aforesaid reasons the Court below records following conclusion:

"That is way, on the grounds urged by the petitioner, it is not a fit case for transfer. If it is mentioned by the petitioner that this petition has already filed for transfer, the Presiding Officer may have been pained. However, in the interest of justice, I think it is just and proper to pass the following:

The petition filed by the petitioner under Section 24 of C.P.C. read with Section 5(2) of the City Civil Court Act, is allowed.

O.S. No. 1209/2009 pending before CCH-39 is hereby withdrawn and is transferred to CCH-14 for disposal in accordance with law.

Let this case be called before that Court."

It is thus clear that the learned Judge having come to the conclusion that no grounds had been made out for the transfer of the case and having found fault with the petitioner/first defendant in making such baseless allegations, has very strangely persuaded himself to transfer the case from Court Hall 39 to Court Hall 14.

Learned counsel appearing for the petitioner rightly submits that the proceedings in O.S. No. 1209/2009 and O.S. No. 3773/2009 were clubbed at the request made by both parties and on their consent. This is, in fact, borne out from the records. It is also urged by her that the order passed by the Court below allowing the application filed by the plaintiff under Order 6 Rule 17 seeking amendment of written statement was challenged by the very first defendant in W.P. No. 19406/2014 and the said writ petition was dismissed as withdrawn and that no allegations of bias were made against the Judicial officer while filing the said writ petition. It is submitted by her that that the allegations made were totally baseless.

Learned counsel appearing for the respondents submit that no prejudice is caused to the plaintiff by the order passed by Court below transferring the case. He urges that the very fact that an application was filed by the first defendant seeking transfer of the case making allegations of bias should be sufficient to pass an order of transfer. He has further contended that the Principal District Jude ought to have secured the comments and response of the Presiding Officer and thereafter come to the conclusion whether allegations made were true. He has placed reliance on the judgment of this Court in the case of M.V. Ganesh Prasad Vs. M.L. Vasudevamurthy and Others, to contend that in such circumstance transfer of the case would be right and justified.

Upon hearing the learned counsel for both parties I find that the order under challenge is illegal. The Court below has found that there was no justification for the grievance made by the first defendant seeking transfer of the case and that there was no basis for the apprehension of bias on the part of the first defendant. Having said so and having expressed concern about the manner in which the transfer of the case was sought and being highly critical of the averments made in support of the prayer for transfer which in its opinion were painful, neither appearing to be probable nor reasonable has very strangely, in the operative portion of the order, allowed the petition and directed transfer of case withdrawing the same from Court Hall No. 39.

The apprehension of bias on the part of the litigant must be bona fide and it should be a reasonable apprehension. Mere allegation without any basis cannot be made a ground to order transfer of a pending case exercising power under Section 24 CPC. The contention of the learned counsel appearing for petitioner that the very fact that such an application was made under Section 24 CPC by the first defendant entertaining apprehension of bias should be sufficient for the Court to exercise power under Section 24 CPC and transfer the case to another Court, cannot be accepted.

In the instant case, the apprehension expressed is based on the fact that application filed by the third defendant seeking amendment of the written statement was allowed, whereas the application filed by the first defendant was dismissed and copy of that application was also not served on the first defendant. It is necessary to notice here that order allowing the application filed by the third defendant was challenged by the petitioner/first defendant before this Court in the writ petition. He has not made any allegation of bias against the Presiding Officer. It is also relevant to notice here that when the application filed by the third defendant was allowed, the first defendant did not challenge the same making any such allegation of bias. Even when the application of the first defendant was dismissed though he filed the writ petition challenging the same, he did not make any allegation of bias. Therefore, the learned Principal District Judge has rightly found that there was no justification or reasonable basis for the first defendant to entertain apprehension of bias against the Judicial Officer.

It cannot be lost sight that merely because a litigant baselessly entertains such apprehension without there being any reason, against the Judicial Officer, the matter cannot be transferred from one Court to another. The need of the hour is to ensure that the civil proceedings pending for long years are disposed of expeditiously. Then only the litigants will have confidence and faith in the system. The litigants cannot be permitted to come up with such applications without any basis making allegations of bias against the Judicial Officers.

It is no doubt true when allegations are based on reasonable apprehensions then interest of justice do demand that power under Section 24 CPC, requires to be exercised to remove any doubt in the mind of the litigant regarding the impartiality of the Judicial Officer deciding the matter. In the instant case, no such grounds are made out and indeed as stated earlier, the learned Principal District Judge has been very candid and categorical in holding that no such grounds indeed existed. Despite the same he has erroneously passed the order transferring the case.

Hence, the order under challenge cannot be sustained. The revision petition therefore is allowed. The impugned order is set aside.

The suits have been pending since 2009. Learned counsel for both parties request that a direction may be issued to the Court below to dispose of the cases expeditiously. I find justification in this request. Hence, the Court below is directed to dispose of the cases within six months from the date of receipt of a copy of this order.