IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 OP(C).No. 837 of 2011(O) ------------------------ OPTP.362/2010 OF DISTRICT COURT,TRIVANDRUM AS.129/2005 OF SUB COURT,ATTINGAL .................... PETITIONER: ------------------- KESAVAN VISWAMBHARAN, THERIVILAPUTHAN VEEDU, PORUNTHAMON, PULIMATHU VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH SRI.K.M.ALEXANDER SMT.A.K.PREETHA SMT.GEETHA JOB(OZHUKAYIL) RESPONDENT(S): --------------- 1. NANDI GRANITES PVT. LTD., REP. BY ITS DIRECTOR, R.SEKHAR, HOODI APARTMENTS, GROUND FLOOR,NO.120, BANGALORE, KARNATAKA STATE, REP. BY POWER OF ATTORNEY HOLDER SANTHOSH, SANTHOSH BHAVAN, SOUTH KEERIKKADU, KAYAMKULAM, ALAPPUZHA-690502. 2. SUGUNAN, CHITHIRAKAILASAM KUNNU, AROOR DESOM, KILIMANOOR VILLAGE, REP. BY THE POWER OF ATTORNEY HOLDER JOY A.G., PRATHEEKSHA, PORUNTHAMON, PULIMATH VILLAGE, KILIMANOOR, THIRUVANANTHAPURAM DISTRICT-695601. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ----------------------------------- O.P.(C).No.837 of 2011 ------------------------------------ Dated this the 28th day of February, 2011 JUDGMENT The petitioner filed O.P.(T.P.) No.362 of 2010 before the District Court, Thiruvananthapuram to transfer A.S.No.129 of 2005 on the file of Sub Court, Attingal to any other court. The learned District Judge dismissed the application. Hence, the petitioner filed this Original Petition. 2. In the suit, namely, O.S.No.402 of 1999, Munsiff's Court, Attingal, the petitioner was the defendant. The suit was decreed. The petitioner filed A.S.No.129 of 2005 on the file of the court of the Subordinate Judge of Attingal. When the appeal was taken up on hearing, the appellant was not present. However, the learned Subordinate Judge, instead of dismissing the appeal for O.P.(C) No.837/2011 2 default, dismissed the appeal on the merits. The petitioner, therefore, filed W.P.(C) No.18265 of 2010, which was disposed of by the judgment dated 13.7.2010 granting permission to the petitioner to file an application before the appellate court for re-admission of the appeal. Thereupon, the petitioner filed I.A.No.1823 of 2010 for re-admission of the appeal. That application was allowed and the appeal was taken on file. 3. Thereafter, the petitioner filed O.P.(T.P.)No.362 of 2010 to transfer the case to another Sub Court. The reason stated in the Transfer Petition is that when the appeal came up for hearing, the learned Subordinate Judge expressed his inability to take a view different from the view already taken by him when he disposed of the appeal earlier. Remarks were called for by the learned District Judge from the learned Subordinate Judge. The learned Subordinate Judge stated in the report that he did not express any such view and that there is no difficulty for him to dispose of the O.P.(C) No.837/2011 3 appeal on the merits, after taking into account the submissions made by either side. 4. The learned counsel for the petitioner submitted that the learned Subordinate Judge while disposing the appeal on the earlier occasion had expressed his view on the merits and therefore, though that judgment was recalled and rehearing was ordered, no change would occur and the learned Subordinate Judge is likely to take the same view which he had already taken. The counsel also submitted that the point of view of the litigant is to be taken note of and not the point of view of the Subordinate Judge who is legally trained and who may be able to take a different view on re-admission of the appeal. A litigant cannot have such view, if he is properly advised by the counsel. In this case, he is advised by the counsel, before the Subordinate Court as well as before the High Court. There cannot be any apprehension that a learned Subordinate Judge who has O.P.(C) No.837/2011 4 readmitted an appeal for hearing would always take the same view which he had taken earlier. If transfer of the case is made on that ground, in all cases where parties commit default would be able to say that the case should be transferred to another court, if the judge had already taken a view on the merits instead of dismissing the case for default. 5. The learned District Judge considered all the contentions put forward by the petitioner. Taking into account the report submitted by the learned Subordinate Judge and the apprehension voiced by the petitioner, I am of the view that no grounds are made out for transfer the case. I do not find any jurisdictional error or error of law warranting interference under Article 227 of the Constitution of India. The Original Petition is accordingly dismissed. K.T.SANKARAN JUDGE csl