1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3083 OF 2010 Khyber Restaurant ...Petitioner vs. Vilas Shankarrao Pingale and others ...Respondents Mr.S.J.Rairkar for the petitioner CORAM :A.S.OKA,J. DATE : APRIL 20, 2010 P.C.: 1 Heard the learned counsel for the petitioner. The challenge in this writ petition under Article 227 of Constitution of India is to the order passed by the learned Principal District Judge by which an application for transfer made by the petitioner under section 24 of the Code of Civil Procedure,1908 has been rejected. 2 An application for transfer was made by the petitioner in a pending appeal preferred by the respondents-landlords against a decree of dismissal of suit for eviction filed by them. 3 According to the case of the petitioner, hearing of the appeal commenced before the learned District Judge. The Appeal was part 2 heard and counsel for the respondents had already argued the appeal to some extent. The appeal was kept on 3rd March 2009 for further arguments. On that day, on the request made by the learned counsel for the respondents, the appeal was kept back. Even after the appeal was kept back, a partner of the petitioner continued to remain in the Court room. The allegation is that the learned Judge called the said partner of the petitioner in the open Court and suggested that the petitioner should compromise the matter. The allegation is that the learned Judge has expressed his opinion that the petitioner was a willful defaulter and the respondents were bound to succeed in the appeal. According to the petitioner, the learned Judge suggested to the petitioner that he should consider of accepting the alternate premises on the rear side of the premises offered by the respondents. On the basis of this incident, an application for the transfer of the appeal under section 24 of the said Code was moved. In the said application, aforesaid incident has been narrated. Material allegations on the basis on which prayer for transfer is founded are in paragraphs 3 and 4 of the application which read thus : 3]The present applicant was indeed stunned. Immediately he contacted his 3 Advocate and informed him the above stated state of affairs. On account of expression of the Presiding Officer, the applicant has lost faith in the Presiding Officer. Accordingly, on the same day a pursis was filed by the applicant before the Hon ble Court recording the events which took place. Besides filing of pursis, the Applicant also moved an application requesting the Hon ble Court to adjourn the matter for 2 weeks on the ground that Appellant wanted to move application for transfer of appeal on account of events which took place on 3/3/2009 and which were record in the pursis. Copy of the said application as well as copy of the pursis is enclosed herewith. 4] In the above situation when the Hon ble Court asked the partner of the Applicant to take to other partners about the compromise of accepting rear side premises and communicate to the Hon ble Court before 2 pm. Particularly when the findings on all the issues have been given by the learned lower court in favour of the present applicant and argument of the Applicant is yet to commence and even the argument of Appellant/Opponent is to be concluded, the Applicant has formed reasonable apprehension that the Applicant will not get justice 4 because the Hon ble Presiding Officer has made up his mind... 4 The learned counsel for the petitioner submitted that an application was made during the pendency of the appeal by the respondents- landlords offering some other accommodation to the petitioner. The said suggestion was not accepted and in fact, the application made by the respondent was rejected. He submitted that after the appeal was kept back on the request made by the counsel for the respondents, in absence of the Advocate for the petitioner, the learned Judge called the partner of the petitioner and expressed a clear opinion on merits that the respondents were likely to succeed and therefore, the petitioner should settle the matter by accepting the other accommodation offered by the respondent. He submitted that this was sufficient for reasonable apprehension that the petitioner may not get justice from the learned Judge. He submitted it was the duty of the learned Principal Judge to call a report from the concerned learned Judge and to ascertain whether the said incident has really happened. He submitted that considering the manner in which the learned Judge suggested to the partner of the petitioner to settle the matter by stating that the respondents are likely to succeed in 5 the appeal, there was great deal of substance in the apprehension expressed by the petitioner. He submitted that this is a sufficient ground for transfer and therefore, the learned Principal District Judge ought to have exercised power under section 24 of the said Code. 5 I have given careful consideration to the submissions. The learned Principal District Judge has noted that the respondents at an earlier stage had moved an application at Exh.37 offering three rooms on the rear side of the suit premises. The said suggestion was not accepted by the petitioner and therefore, an order filed was passed on the said application on 29th October 2003. According to the case of the petitioner , the suggestion was made by the learned Judge after partly hearing the arguments of the respondents. After hearing the arguments partly, if the learned Judge was of the view that the petitioner should consider the suggestion for settlement which was already on record, it cannot be said that the learned Judge has prejudged the issue. In fact, in the light of the object of section 89 of the said Code of Civil Procedure,1908, there was nothing wrong if the learned Judge made an endeavour to settle the dispute amicably. Perhaps, the partner of the petitioner was offended as the said suggestion was made in absence of his Advocate. 6 Even assuming that the learned Judge has expressed to the partner of the petitioner that the respondents have a case on the ground of default, it was only an expression of prima facie opinion on the basis of the arguments which were made by the learned counsel for the respondents. After fully hearing the appeal, the learned Judge may not stick to the said prima facie opinion. It is the duty of the Court to make an effort to ensure that the parties do not litigate. Sometimes, the Judges do express opinion on merits only with an object of advancing the process of settlement between the parties. Sometimes, prima facie expression of opinion is made to ensure that the litigants take the suggestion for settlement seriously. Even assuming that what is alleged by the petitioner has actually transpired before the learned Judge, I find that the view expressed by the learned principal District Judge that no ground for transfer is made out is correct and no interference is called for. Writ Petition is rejected. JUDGE 7