1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30.09.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Tr CMP (MD)Nos.217 and 218 of 2011 and MP(MD)Nos.1 & 1 of 2011 Seenivasan @ Karuppiah .. Petitioner/Plaintiff in Tr.CMP No.217/11 1.Seenivasan @ Karuppiah 2.Umamaheswari .. Petitioners/Plaintiffs in Tr.CMP No.218/11 -Vs- 1.Kalayanasundaram Chettiar 2.Ulagammai Achi 3.Avudaiya Shamuganathan 4.Selvasubramanian .. Respondents/Defendants in Tr.CMP No.217/11 1.Ulagammai Achi 2.The Executive Officer Thathayyangarpettai Selection Grade Panchayat Thathayyangarpettai Village Musiri Taluk Tiruchirapalli District. 3.The Assistant Engineer (Operation and production) Tamilnadu Electricity Board Thathayyangarpettai Village, Musiri Taluk, Tiruchirapalli District. 4.The Assistant Executive Engineer (Operation and production – North Circle) Tamilnadu Electricity Board Oorakkarai Village Musiri Taluk Tiruchirapalli District. .. Respondents/Defendants in Tr.CMP No.218/11 Transfer Civil Miscellaneous Petitions filed under section 24 of CPC to withdraw and transfer Original Suit Nos.346 of 2004 and 40 of 2009 respectively from the file of the Fast Track Court No.I/Additional District Court, Tiruchirapalli to the file of Principal District Court, Tiruchirapalli or any other competent Court having jurisdiction. For Petitioners : Mr.S.S.Sundar (both Tr.CMPs.) For RR – 1 to 4 : Mr.T.V.Sivakumar (TR.CMP No.217/11) For R – 1 : Mr.T.V.Sivakumar (TR.CMP No.218/11) For RR – 2 to 4 : No appearance (Tr.CMP.No.218/11) COMMON ORDER These Transfer Civil Miscellaneous Petitions have been filed praying to withdraw and transfer Original Suit Nos.346 of 2004 and 40 of 2009 from the file of the Fast Track Court No.I/Additional District Court, Tiruchirapalli to the file of any other competent Court. https://hcservices.ecourts.gov.in/hcservices/ 2 2. In both the petitions it is averred that the petitioner as plaintiff has instituted Original Suit No.1071 of 2003 on the file of the Sub court, Tiruchirapalli for the reliefs of partition and separate possession, wherein the present respondents have been shown as defendants and subsequently Original Suit No.1071 of 2003 has been transferred to the file of the Fast Track Court No.I, Tiruchirapalli and the same has been taken on file in Original Suit No.346 of 2004. Likewise, the petitioner and his wife as plaintiffs have instituted Original Suit No.69 of 2004 on the file of the District Munsif Court, Musiri for the relief of permanent injunction, wherein the second respondent and others have been shown as defendants. The suit instituted as Original Suit No.69 of 2004 has been subsequently transferred to the file of Fast Track Court No.I, Tiruchirapalli and the same has been taken on file in Original Suit No.40 of 2009. The present Presiding Officer has been influenced by the respondents so as to give them favourable Judgments. Before hearing arguments on the side of the plaintiffs in both the suits, arguments on the side of the defendants have been heard by the Presiding Officer and that too in the absence of the counsel of the petitioner. In Original Suit No.346 of 2004 one of the contentions raised on the side of the defendants is that the same is bad for non-joinder of necessary parties. Under the said circumstances, the petitioner has filed relevant petition on 24.08.2011 and the same has been returned by the Presiding Officer stating that both the cases have been posted for Judgment on 25.08.2011. During the course of trial, due to intervention of some mediators and also well-wishers, the matters between the parties have been settled and a request has been made to the Fast Track Court No.I, Tiruchirapalli to refer both the matters to Lok Adalat. But the Presiding Officer has refused to refer the same to Lok Adalat. Due to illness of the counsel of the petitioner, he has not been able to advance his argument on 17.08.2011 and subsequently both the cases have been posted on 18.08.2011 for pronouncing Judgment. The compromise petition filed by both parties has been returned on 18.08.2011 stating that the same should be filed along with re-open petition. The present Presiding Officer has failed to draw adverse inference against the second respondent and also made comment in open court in favour of the respondents. Further the respondents have openly admitted that they have already paid substantial amount to the Presiding Officer to get favourable Judgment. Under the said circumstances, the petitioner is having apprehension in his mind that he would not get fair and proper justice at the hands of the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli and due to that the present petitions have been filed for getting the reliefs sought for therein. 3. On the side of the respondents, in each petition a detailed counter has been filed, wherein all the allegations made against them as well as the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli are denied. 4. At the time of admitting these petitions, the learned counsel appearing for the petitioner has mainly contended that both the suits have been reserved for pronouncing Judgments and subsequently some petitions have been filed and the same have been purposely returned by the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli. After hearing such kind of contention put forth on the side of the petitioner, this Court has directed the Registry to call for remarks from the concerned Presiding Officer of the Fast Track Court No.I, Tiruchirapalli and accordingly he has submitted a detailed remarks, wherein he assorted all the steps taken on the https://hcservices.ecourts.gov.in/hcservices/ 3 side of the Court so as to dispose of both the suits as per the direction given in CMA Nos.1426 and 1427 of 2004 by this Court. 5. The main allegations made against the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli are that he purposely returned the petitions filed on the side of the petitioner in both the suits so as to reopen the same and the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli has failed to take adverse inference since an attempt has been made so as to compare the disputed signature found on a particular document with the admitted signature and further the respondents have openly declared that they have already substantially paid certain amount to the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli. 6. The learned counsel appearing for the petitioners has repeatedly argued about the allegations made in the petitions. But the learned counsel appearing for the respondents has befittingly contended that all the allegations made against the respondents as well as against the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli are false and the respondents are always rendered their obligation for early disposal of both the suits. 7. For considering the rival submissions made on either side, the Court has to look into the remarks submitted by the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli. 8. It is an admitted fact that Original Suit No.1071 of 2003 has been initially instituted on the file of the Sub Court, Tiruchirapalli and likewise, Original Suit No.69 of 2004 has been instituted on the file of the District Munsif Court, Musiri. Due to pecuniary jurisdiction, Original Suit No.1071 of 2003 has been transferred to the file of the Fast Track Court No.I, Tiruchirapalli since in Original Suit No.1071 of 2003 reliefs of partition and other reliefs have been sought for and since Original Suit No.69 of 2004 has been instituted for getting a decree of perpetual injunction, Original Suit No.69 of 2004 has also been transferred to the file of the Fast Track Court No.I, Tiruchirapalli and both the suits have been taken on file in Original Suit Nos.346 of 2004 and 40 of 2009. 9. The Presiding Officer of the Fast Track Court No.I, Tiruchirapalli has submitted in his remarks that on 06.06.2011 the petitioner has filed I.A.No.981 of 2010 under Order 26 Rule 10(A) of the Code of Civil Procedure, 1908 to refer Ex.A19 for the scrutiny of a handwriting expert and the same has been allowed on 02.12.2010 and thereby appointed an Advocate by name S.Gunasekaran as Commissioner. Even though the said petition has been allowed on 02.12.2010 no steps have been taken by the petitioner to file contemporaneous documents so as to send the same along with Ex.A19 and after taking enormous efforts so as to fulfil the reliefs sought for therein, the same has been closed as infructuous. On 06.07.2011 the petitioner has filed a memo stating that both the matters may be referred to Permanent Lok Adalat and the same has been recorded by the Court and since there is no bona fide on the part of the petitioner, he has been directed to file a petition under Order 23 Rule 3 of the Code of Civil Procedure, 1908 and subsequently both the suits have been posted on 11.07.2011 for hearing arguments. On 11.07.2011 the counsel of both parties have represented that the matters between the parties have already been settled out of Court and they requested the Court to adjourn the matters for filing petition and https://hcservices.ecourts.gov.in/hcservices/ 4 subsequently both the matters have been adjourned to 18.07.2011 for filing compromise petition. On 18.07.2011, no petition has been filed and subsequently the matters have been adjourned to 20.07.2011 as last chance for advancing argument. Since on 20.07.2011 arguments have not been advanced, both the matters have been posted on 21.07.2011 for hearing arguments. On that day also, both parties have not argued the matters and on the basis of available evidence, both matters have been reserved for Judgment by 27.07.2011. Despite of directions given by the Honourable High Court, both parties have not evinced interest to dispose of both matters and both the matters have been adjourned to 01.08.2011 and from 01.08.2011 both the matters have been adjourned to 09.08.2011. From 09.08.2011 both matters have been adjourned to 11.08.2011. From 11.08.2011, both the matters have been adjourned to 12.08.2011 and on 12.08.2011 the counsel of the defendants has advanced his argument. On that day the counsel of the petitioner/plaintiff has not been present and for hearing argument on the side of the petitioner/plaintiff, the matters have been adjourned to 16.08.2011. On 16.08.2011 on the side of the plaintiff argument has been advanced and subsequently matters have been posted for Judgment on 18.08.2011 and thereafter the petitioner /plaintiff has filed reopen petition and the same has been returned stating that no compromise petition has been filed and subsequently the matters have been adjourned to 22.08.2011. On 22.08.2011 again argument of the plaintiff has been heard and both suits have been adjourned to 25.08.2011 for Judgment. On 25.08.2011 the petitioner has filed two petitions in I.A.Nos.659 and 660 of 2011 so as to reopen and recall DW1. 10. From the remarks submitted by the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli, it is made clear that as per the direction given by this Court in CMA Nos.1426 and 1427 of 2004 hectic efforts have been taken by the present Presiding Officer as well as his Predecessors in Office so as to dispose of both the suits as early as possible. But both parties have designly and also purposely indulged in delaying tactics. 11. As stated earlier, the main grievance expressed on the side of the petitioner is that the petitions filed by him have been returned unnecessarily without numbering. But from the remarks submitted by the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli it is seen that those petitions have been filed in I.A.Nos.659 and 660 of 2011 Therefore, the very first allegation made against the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli is totally erroneous and the same is also baseless. 12. At this juncture, the Court has to look into the written statement filed in Original Suit No.1071 of 2003. The defendants therein have filed the written statement during February 2005, wherein it has been specifically stated that Original Suit No.1071 of 2003 is bad for non joinder of necessary parties. After seeing the plea taken on the side of the defendants, the petitioner has not taken any steps so as to implead all the sharers of the suit properties. But after advancing argument in both the suits, in the year 2011 an attempt has been made on the side of the petitioner so as to implead all the sharers of the suit properties and further he himself has filed I.A.No.981 of 2010 under Order 26 Rule 10(A) of the Code of Civil Procedure, 1908 so as to compare the signature found in Ex.A19 with the contemporaneous signatures and even though the same has been allowed he has not evinced any interest so as to comply with the condition https://hcservices.ecourts.gov.in/hcservices/ 5 mentioned therein. Therefore, utter failure is on the part of the petitioner. Further, from the remarks submitted by the Presiding Officer of Fast Track Court No.I, Tiruchirapalli, it is easily discernible that various adjournments have been given to both parties to put forth their respective argument and ultimately found that both parties have not evinced any interest in early disposal. 13. Apart from the allegations assorted earlier, the petitioner has stated in his petitions that the respondents have openly stated that they have already paid substantial amount to the Presiding Officer and the same has been candidly denied in the counter filed on the side of the respondents 14. From the remarks submitted by the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli it is easily learnt that there is no fault on the part of the Presiding Officer of Fast Track Court No.I, Tiruchirapalli. As taunted earlier, both parties have adopted various unwanted tactics so as to delay and also protract the proceedings and further the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli has not shown nor evinced any interest in favour of the respondents/defendants. Therefore it is needless to say that the petitioner has unnecessarily made scandalous and also disparaging allegation against the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli without any basis. Since the petitioner has made such kind of allegation without any basis, it is needless to say that he is not entitled to get the reliefs sought for in the petitions and further, the litigant public should not be allowed to choose their forum as they like. 15. The learned counsel appearing for the petitioners has relied upon the following decisions: (a) In Lalita Rajya Lakshmi and another V. State of Bihar and another [AIR 1957 Patna 198] it is held that “it is not merely of some importance, but is fundamental importance that justice should not only be done but should manifestly, and undoubtedly seem to be done.” (b) In Thounaojam Ningol Indrani Devi and others V. The Municipal Board of Imphal and others, [AIR 1958 Manipur 27], it is held that “it is well settled that a case ought to be transferred when a party reasonably apprehends that he is not likely to have fair trail before a particular Court.” (c) In Prem Kishan V. Bundu and others [AIR 2003 Rajasthan 62] it has been held that “apprehension of petitioner gets more strengthened from comments made by Presiding Officer while rejecting his transfer application Moreover no valid reasons given for rejecting transfer application.” (d) In Jagatguru Shri Shankaracharya Jyotish Peethadhiswar Shri Swami Swaroopanand Saraswati V. Ramji Tripathi and others [AIR 1979 Madhya Pradesh 50], in paragraph-12 it is observed that “another factor that has to be taken into consideration is the interest of justice. A case has to be transferred if there is reasonable apprehension of a party to a suit that he might not get justice in the Court, where the suit is pending.” 16. It has already been discussed in ex tenso that all the allegations made against the Presiding Officer of the Fast Track Court No.I, Tiruchirapalli are totally baseless. In fact the Predecessors in Office and also the present Presiding Officer of the Fast Track Court No.I, Tiruchirapalli have uniformly acted within the campus of their limit and https://hcservices.ecourts.gov.in/hcservices/ 6 also within the contour of law. In fact, they have not exceeded anything The present Presiding Officer has also tried his level best so as to dispose of the matters as per the direction of this Court given in the orders passed in CMA Nos.1426 and 1427 of 2004. Further the petitioner is in the habit of accusing Judicial Officer even without any basis. Since all the averments made in the petitions are totally baseless and since the petitioner himself has not shown his proper interest for disposing of the matters as early as possible, the Court cannot come to a conclusion that the petitioner is having real apprehension in his mind to the effect that he would not get fair justice at the hands of the Presiding Officer. From the remarks submitted by the present Presiding Officer, this Court is of the considered view that he has not exhibited any act either in favour of the respondents or against the petitioner. Therefore, one can easily ken that the petitioner is in the habit of protracting proceedings and his main aim is to torture and also cause importunity to the Court as well as the respondents/defendants. Since it seems to be his attitude, he is not entitled to get equity and further on the basis of the factual situations present in the present petitions, the decisions referred to supra are not at all applicable to the present petitions and altogether these petitions deserve to be dismissed. 17. In fine, these petitions deserve dismissal and accordingly are dismissed with cost. The Fast Track Court No.I/Additional District Court, Tiruchirapalli is directed to dispose of both the suits on the basis of the available evidence and also in accordance with law without adhering the observations made in this order. Connected Miscellaneous Petitions are also dismissed. Sd/- Assistant Registrar (AS) / TRUE COPY / Sub Assistant Registrar To: The Fast Track Court No.I/ Additional District Judge, Tiruchirapalli. +1CC to Mr.S.S.Sundar, Advocate. SR.No.34304. Mj RP/28.10.2011/6P/3C. order in Tr CMP(MD)Nos.217 & 218 of 2011 30.09.2011 https://hcservices.ecourts.gov.in/hcservices/