Sakti Prosad Ganguly vs Ashok Ganguly @ Gangopadhyay & Ors

Subhasis Dasgupta, J

This is an application under Section 24 of the Code of Civil Procedure, seeking transfer of Title Suit No. 28 of 2005, now pending before the learned Civil Judge (Senior Division), 1st Court, Krishnagar to the court of learned District Judge at Aplipor, South 24- Parganas or any other court subordinate to High Court.

The case, as made out in support of the prayer for transfer, is that a suit for partition was instituted in the year 2005. Due to non-appearance of the defendants, the suit was disposed of ex-parte on 23.06.2008, recording a preliminary decree in the partition suit. Four years after the recording of preliminary decree, learned advocate commissioner was appointed on 22.03.2012 by the learned court below. In course of conducting the commission work, learned pleader commissioner, alleged to be a friend of opposite party No. 2 (a practising advocate), detected that defendant No.4 had already expired requiring substitution therefor, without which the commission work could not be completed.

The petitioner seeking transfer is the younger brother of opposite party No. 2, who is practising advocate of Krishnagar court, having high repute with good relationship with his colleagues, practising in the self same court. The wife of the opposite party No. 2 is also practising advocate. It is alleged that both opposite party No. 2 and his wife are highly influential, and not only the pleader commissioner is the friend of O.P. No. 2, but also the advocate being engaged by the petitioner in the court below is not out of the influence of his brother/opposite party No.2. It is further alleged that opposite party No.2 and his wife together are constantly watching over the conduct of this case, so that there can be more delay in obtaining the ultimate desired relief of petitioner. In view of such high reputation of his brother (opposite party No.2) having a good practice in Krishnagar court, the petitioner is highly apprehensive that he may not get proper justice from the court, where the present case is pending, and as such proposed for transfer of the case to the court of learned Additional District Judge, Alipore or to any subordinate to High Court.

Learned advocate for the petitioner making out a case of exercising strong influence over the conduct of pending case by his own brother (opposite party No. 2), a practicing advocate of Krishnagar court, earning high reputation at the moment, has proposed for transfer anticipating that the entire members of the Bar of Krishnagar court cannot be taken to be out of the influence of opposite party No.2, because his brother O.P. No.2 maintains a good relationship with all his colleagues in the Bar.

Learned advocate for the opposite parties strongly raises objection in this case and submits that the petitioner managed to obtain a fictitious report regarding service of summons, and got the suit posted for ex-parte hearing, and having discovered the same, the opposite parties have taken steps for setting aside the ex-parte preliminary decree, passed in this partition suit. It is further submitted by the learned advocate for the O.P. No.2 that if the O.P. No.2 is taken to be highly influential, then how the case ended in ex-parte preliminary decree. It is the petitioner, who himself prefers not to take any action for substitution even after being specifically ordered by the learned court below on 01.08.2014. It is thus proposed by the learned advocate for the opposite parties that earning good reputation, by dint of good practice of a lawyer cannot be considered against the opposite parties on the ground of alleged exercise of influence over the conduct of this case.

The only point to be decided in this case is whether the proposed transfer in the given set of facts is permissible or not.

Admittedly, this is a fight between two set of brothers in connection with partition suit over their ancestral property.

Admittedly, O.P. No.2 is a practicing advocate at Krishnagar Bar Association and his wife is also is attached with same profession. It is not the position that petitioner finds difficulty in appointing learned advocate of his choice at Krishnagar court so as to represent his case before the court for his desired relief. It is also not the case of the petitioner that because of the influence of his own advocate brother, the case has been badly conducted, causing serious damage to his legitimate right. Had the case not been duly represented on behalf of the petitioner, the case could not have been proceeded with the stage of ex-parte hearing, and there could not have been ex-parte preliminary decree recorded in this case. It is very easy to say that all the advocates practicing at Krishnagar Bar are friend of O.P. No.2 and as such they are not out of the influence of his own advocate brother but it is very different to establish the extent of influence being exercised objectively. Maintaining good relationship with fellow colleagues of the same Bar, does not necessarily mean that all the members of the Bar will be subject of influence, in any, exercised by the O.P. No.2. Mere surmise and conjecture in the absence of objective satisfaction, the apprehension on the part of the petitioner that he may not get justice from Krishnagar court is without any reasonable basis. Nothing has been established conspicuously revealing the extent of influence being exercised over any of the learned members connected with this case by his own advocate brother, detrimental to the interest of the petitioner, without which the proposed transfer is without any basis of law and as such is not entertainable.

For the discussion made above, the application for transfer under Section 24 of Code of Civil Procedure stands dismissed.

The C.O. No. 2578 of 2017 accordingly stands disposed of.

The petitioner is directed to make communication of this order to the learned court below.

Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.