IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 OP(C).NO. 18 OF 2010(O) ------------------------------------ AGAINST THE ORDER IN OS 117/2008 IN TOP.167/2010 OF DISTRICT COURT,KOZHIKODE TOP.167/2010 OF SUB COURT, QUILANDY .................... PETITIONER: ------------------- SREENIVASAN NAIR, EDAKKAT, POOLAKKODE VILLAGE, VELLANNUR AMSOM, KOZHIKODE TALUK. BY ADV. SRI.G.UNNIKRISHNAN SRI.K.SANEESH KUMAR RESPONDENT(S): ------------------------- DEVADAS, POOTHAKUZHIYIL, POOLAKKODE VILLAGE, VELLANNUR AMSOM, KOZHIKODE TALUK. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== O.P(C) No.18 of 2010 ==================================== Dated this the 23rd day of September, 2010 J U D G M E N T Petitioner sued respondent for a decree for specific performance of an agreement for sale in the court of learned Sub Judge, Koyilandy. Case was posted for trial in the list on 19.08.2010 and then on 07.12.2009. Evidence of petitioner was recorded. Respondent requested for time to adduce evidence which was rejected and his evidence was closed. On 11.12.2009 respondent made an application to reopen the case but that did not find favour by the learned Sub Judge. Case was then posted on 12.12.2009. Again respondent moved I.A. No.1459 of 2009 to reopen the case. That application was allowed on 16.12.2009 on payment of costs of Rs.2,500/-. Since costs was not paid application was dismissed on 17.12.2009. Case was decided ex parte on 23.12.2009. Respondent filed I.A. No.24 of 2010 to set aside the ex parte decree. That application was posted on 09.03.2010. Petitioner filed I.A. No.131 of 2010 to advance hearing of I.A. No.24 of 2010 but court below posted the said application on 04.04.2010. In the meantime petitioner approached O.P(C) No.18 of 2010 -: 2 :- this Court in W.P(C) No.8587 of 2010 for a direction for early disposal of I.A. No.24 of 2010. I.A.No.24 of 2010 was allowed and the ex parte decree was set aside in favour of respondent. Respondent filed a petition before learned District Judge, Kozhikode under Section 24 of the Code of Civil Procedure (for short, “the Code”) for transfer of the case from the court of learned Sub Judge, Koyilandy. There he raised some apprehension that he might not get a fair decision in the case from Sub Court, Koyilandy. Application was opposed by petitioner. Learned District Judge found that the grounds stated by respondent are all unsustainable and there is no reason for respondent to feel apprehensive of the decision of the case on merit. Observing that justice must be seemingly done learned District Judge thought it appropriate to transfer the case to the court of learned Additional Sub Judge-I, Kozhikode. While transferring the case learned District Judge has taken into account the fact that counsel for parties are practising mainly before the courts at Kozhikode and hence it will not cause any inconvenience to them. That order is under challenged in this Original Petition. Learned counsel for petitioner placed reliance on the decision in Narniat Pharmaceuticals & Chemicals (P) Ltd. v. Thomsom Drug and Chemicals Ltd. (1992 [1] KLT 51) to contend that O.P(C) No.18 of 2010 -: 3 :- when transfer is requested on the ground of apprehension as to fair trail, a transfer should not be allowed for the mere asking as it might amount to unjustifiable stigma or slur against the court concerned. Reference was also made to the decision in Industrial C & D.S. Ltd. v. Andru (1991 [1] KLT 234) where it was held that neither suspicion nor the fact that the Judge has taken a particular view in a case is sufficient to transfer the other case. 2. No doubt a request for transfer on grounds of partiality is required to be strictly scrutinised and on mere allegation request shall not be entertained for, it would amount to unjustifiable stigma or slur against the Judge concerned. But that question does not arise in this case since learned District Judge has in black and white stated that allegation made against the Judge concerned are untrue and that there was nothing unjustifiable done by the learned Sub Judge in the matter of conduct of trial. But learned District Judge has taken into account the fact that justice must also be seemingly done and that transfer of the case to the court of learned Additional Sub Judge-I, Kozhikode will not in any way cause prejudice to the parties or to the counsel who are mainly practising in the courts at Kozhikode. Obviously it was to avoid embarrassment to all concerned that O.P(C) No.18 of 2010 -: 4 :- such a course has been adopted by the learned District Judge while upholding contention of petitioner that there was no reason as stated by the respondent to order transfer of the case. In other words it is taking into account the possible embarrassment for the parties, the Judge concerned and also considering that there was no inconvenience to the parties or counsel concerned that transfer has been ordered. That in my view was within the discretionary jurisdiction of learned District Judge under Sec.24 of the Code. That discretion having been exercised for proper reason I do not consider it necessary to interference with the order passed by the learned District Judge transferring the case to the court of learned Additional Sub Judge-I, Kozhikode. But I direct the learned Sub Judge, Kozhikode to expedite trial and disposal of the suit. Original Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv