IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 Tr.P(C).No. 48 of 2009() ------------------------ OS.144/2008 OF SUBORDINATE COURT, CHENGANNUR .................... PETITIONER: -------------------- USHA BHASI, W/O.K.P.BHASI, VADAKEVANIYEZHATHU HOUSE, KADAMPUR MURI, ENNACKADU VILLAGE, BUDHANUR.P.O., CHANGANNUR TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.ABRAHAM SAMSON RESPONDENT(S): --------------- R.RAVI, PARADIYIL HOUSE, OMALLOR P.O., PANNYALY MURI, OMALOOR VILLAGE, KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- Tr.P.(C).No.48 of 2009 --------------------------------------------- Dated this the 6th day of February, 2009 ORDER The plaintiff in O.S.No.144/08, on the file of the court of the Subordinate Judge of Chengannur, has filed the Transfer Petition seeking to transfer the suit to the Subordinate Court Thiruvananthapuram or Pathanamthitta or Alappuzha. 2. The petitioner plaintiff instituted the suit for recovery of money. The suit was decreed ex-parte on 9.11.2008. The defendant filed an application under Order IX Rule 13 of the Code of Civil Procedure to set aside the ex-parte decree on 9.11.2008. That application was allowed on 3.1.2009. It is stated that the petitioner filed an application for carbon copy of the order on 6.1.2009. But, he did not get the copy in time. The case was posted before the trial court on 8.1.2009 and on 27.1.2009. The petitioner was constrained to file W.P.(C) No.3429/09 to quash the order dated 28th January 2009 by which the court below dismissed the application to remove the suit from the special list. The Writ Petition No.3429/09 was filed on 2.2.2009. This Court disposed of Writ Petition No.3429/09 as TPC No.48/2009 2 follows: “Heard the counsel for the petitioner and perused the report got down from the Sub Court through the Registry. Counsel for the petitioner having already obtained certified copy of Ext.P5 order passed on I.A.No.685/08 setting aside the ex- parte decree on the application of the respondent/defendant, he may file appeal, revision or writ petition as the case may be positively within two days and obtain appropriate orders therefrom if he so choses. In the meanwhile, further trial of O.S.No.144/08 on the file of the Sub Court, Chengannur shall stand stayed for a period of three days from today. With this direction, this Writ Petition is disposed of. Issue copy of this judgment to the counsel for the petitioner urgently as he wants the copy to be produced before the trial court.” 3. The petitioner filed W.P.(C) No.3718/09 on 3.2.2009 challenging the order dated 3rd January 2009 in I.A.No.685/08, by which the court below allowed the application to set aside the ex-parte decree. In W.P.(C) No.3718/09, the petitioner also challenged the order dated 28.1.2009 which was already challenged by him in W.P.(C) No.3429/09. It is not known how the petitioner could challenge the order dated 28.1.2009 in Writ Petition No.3718/09 when he had already challenged the same in Writ Petition No.3429/09 and when that Writ Petition was disposed of on 2.2.2009. It is to be noted that W.P.(C) TPC No.48/2009 3 No.3718/09 was filed on 3.2.2009. This Court dismissed Writ Petition No.3718/09 on 4th February 2009. 4. As per the order dated 2.2.2009 in W.P.(C) No.3429/09, the trial of the suit was stayed for a period of three days. That was for the purpose of facilitating the petitioner to file an appeal against the order allowing the application under Rule 13 Order IX of CPC. The petitioner filed W.P.(C) No.3718/09 on 3.2.2009 and it was dismissed on 4.2.2009. Therefore, the relevance of the order of stay in W.P.(C) No.3429/09 vanished. 5. Before the court below, the petitioner filed Annexure 6 application dated 28.1.2009 to remove the case from the list, which was dismissed as per the order dated 28.1.2009 referred to above. In that application, the only case put forward by the petitioner was that she wanted to challenge the order dated 3.1.2009 in appeal. 6. It would appear that the petitioner filed Annexure 9 application dated nil to adjourn the case which was listed for trial on 2.2.2009. The respondent filed Annexure10 objection dated 2.2.2009 against Annexure 9. The court below passed an TPC No.48/2009 4 order dated 2.2.2009 in that application. For the sake of convenience, the order is quoted below. (as stated in paragraph 11 of the Writ Petition): “The plaintiff is absent. It is found that the medical certificate is filed stating that the plaintiff is undergoing treatment in a private Ayurvedic Pharmacy. The defendant is present. The plaintiff is directed to take steps for the evidence of the doctor who issued the said medical certificate as a witness in the case. (Take steps through special messenger), return of summons. The S.I. of Police Mannar produced the certified copy of the FIR 39/09, FIS and CMP 260/09 of JFMC I, Chengannoor. The learned counsel for the plaintiff objected the production of the said document because they are photocopies. It is found that the said documents are attested copies. Hence, the objection overruled under Section 114 of Indian Evidence Act. Return of summons, to 3/2/09.” 7. The petitioner states that she is aggrieved by the remarks made by the learned Subordinate Judge on 2.2.2009 when the application for adjournment was being considered. It is stated that the learned Subordinate Judge directed the respondent to file an objection to the application for adjournment incorporating a contention in that objection that the application for adjournment is not attested properly as provided in Rule 45 of the Civil Rules of Practice. The petitioner states thus in the Transfer Petition : TPC No.48/2009 5 “This utterance was deliberately made with a statement that, if the above point is included in the objection it would easily facilitate him to dismiss the affidavit on the same date.” It is also stated that the respondent filed such objection and the application for adjournment was dismissed by the court. The petitioner states that “illegal and unholy act of the lower court” has led the petitioner to the “desperate need to file this transfer petition”. 8. The reasons stated for adjournment of the case, supported by the affidavit of the Advocate, was rightly rejected by the court below. In Annexure A9 affidavit, what is stated is that from 31.1.2009, the petitioner is under the treatment in Mavelikara Kandissery Ayurvedic Pharmacy and that treatment would last for 25 to 30 days. It was also stated that the petitioner would not be able to travel during this period. It is to be noted that in the application filed by the petitioner on 28.1.2009, there was no mention of any illness. There is no case for the petitioner that she abruptly fell ill which necessitated her admission in the Ayurvedic Pharmacy. There is yet another interesting aspect to be noticed. While the petitioner says that she was admitted in the Ayurvedic Pharmacy on 31.1.2009 for a TPC No.48/2009 6 continuous treatment of 25-30 days, she had sworn to an affidavit in support of W.P.(C) No.3429/09 on 2.2.2009 and an affidavit in support of W.P.(C) No.3718/09 on 3.2.2009. Those affidavits were sworn to in the office of her counsel at Ernakulam. How it was possible, is not explained. 9. The allegations made in the Transfer Petition do not warrant transfer of the case from one court to other. The allegations are far fetched and the reasons in support of the allegations are not sufficient for transfer of the case. It would appear that the petitioner was trying to protract the matter before the trial court and some reasons are found out in support of the application for transfer. The application for transfer is devoid of merit and it is liable to be dismissed. Accordingly, the Transfer Petition is dismissed. K.T.SANKARAN, JUDGE csl