1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:19.10.2011 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN Tr.C.M.P.(MD)No.223 of 2011 and M.P.(MD)No.1 of 2011 Sikappi : Petitioner/Defendant-2 Vs. 1.V.Chidambaram : Respondent-1/Plaintiff 2.A.Jayamari : Respondent-2/Defendant-2 Prayer: Transfer Civil Miscellaneous Petition filed under Section 24 of the Code of Civil Procedure, praying to withdraw the suit O.S.No.58 of 2009 on the file of the Subordinate Judge, Devakottai and transfer the same to the file of any Subordinate Court at Ramanathapuram or Pudukottai District. For Petitioner : Mr.M.Ajmal Khan For Respondents : Mr.T.V.Sivakumar O R D E R Invoking the proviso to Section 24 of the Civil Procedure Code, this petition is preferred to withdraw the suit in O.S.No.58 of 2009 from the file of the Subordinate Court, Devakottai, and transfer to any other Subordinate Court, at Ramanathapuram District or Pudukottai District, for disposal, in accordance with law. 2.The first respondent herein has filed the suit O.S.No.58 of 2009 on the file of the Subordinate Court, Devakottai, seeking the relief of declaration and the consequential relief of injunction and also for mandatory injunction against the petitioner and the second respondent herein. The second respondent herein is the first defendant, whereas the petitioner is the second defendant in the suit. During the pendency of the suit, a memorandum was filed by the first respondent, on 15.09.2011 saying that the first defendant, Tmt.A.Jayamari, might be exonerated, as she is not a necessary party to the suit. That memorandum was recorded on 15.09.2011 and in consequence thereof, the first defendant, who is the second respondent herein has been exonerated. 3.Mr.T.V.Sivakumar, the learned counsel appearing for the first respondent, while advancing his argument has produced the certified copies of the memorandum, dated 15.09.2011 and 'B' Dairy maintained pertaining to the suit in O.S.No.58 of 2009 on the file of the learned Subordinate Court, Devakottai. Hence, for the foregoing reasons, the second respondent herein is not a necessary party to this petition also. However, she has also been served with notice, but not chosen to appear before this court. 4.The petitioner, who is the second defendant in the suit has stated in her petition that the first respondent had filed an interlocutory application in I.A.No.216 of 2011 for appointment of an Advocate Commissioner to note down the physical features of the suit property with the assistance of the surveyor. Accordingly, one Thiru.V.Siva, an Advocate was appointed as 'Advocate Commissioner' on 1.8.2010 by the Court to inspect and note down the physical features of the suit property. When the Advocate Commissioner had visited the suit property to execute the warrant https://hcservices.ecourts.gov.in/hcservices/ 2 of commission, there was a verbal altercation between the relatives of the petitioner and the Advocate Commissioner and in this connection, a criminal case was registered on the file of the Devakottai Police Station against the relatives of the petitioner. In pursuance to the registration of the case, the learned Members of Bar Association, Devakottai, went on boycott and have also passed a resolution, resolving that none of the Advocates from Sivagangai District, should appear for the petitioner before the learned Subordinate Court, Devakottai, in the suit. 5.The petitioner states that in view of the said resolution passed by the learned Members of the Bar Association, Devakottai, her Advocate, who was appearing on her behalf before the learned Subordinate Court, Devakottai, had expressed his disinclination to continue his appearance. Under this circumstance, she is facing difficulty in defending her case effectively and efficaciously before the said Court. Hence, she has come forward with this petition, seeking the relief of withdrawal and transfer of the suit in O.S.No.58 of 2009 from the file of the Subordinate Court, Devakottai. 6.The first respondent, being the plaintiff in the suit in O.S.No.58 of 2009 has contended, in his counter that he had filed a writ petition in W.P.No.2080 of 2009 with regard to transfer of patta. While disposing the writ petition on 21.01.2011, this court had given a specific direction to the learned Subordinate Judge, Devakottai, to dispose the main suit O.S.No.58 of 2009 within four months from the date of receipt of a copy of the order. He has also contended that he did not file any application for appointment of Commissioner, but the petitioner alone had filed an application in I.A.No.207 of 2011 seeking for appointment of an Advocate Commissioner. Despite, his objection, the Advocate Commissioner was also appointed. When the learned Commissioner went to inspect the suit premises along with the surveyor, the petitioner's husband, Mr.Ayyasamy along with his brothers Mr.Shanmugam and Lakshmi Narayanan had prevented the learned Advocate Commissioner from discharging his duties and created problem by abusing him, (first respondent) and his counsel as well and during the course of the incident, the petitioner's counsel, his clerk, Town Surveyor, Assistant District Surveyor, were also present. 7.The first respondent has also contended that the disinclination of the petitioner's counsel in making his appearance is not of his fault. In fact, one Mr.K.Perumalsamy, Advocate, is appearing for the petitioner and he has filed number of applications and prosecuting the case effectively. Now, the learned counsel, Mr.K.Perumalsamy has continued his appearance and prosecuting the suit O.S.No.58 of 2009 on the file of the Subordinate Judge, Devakottai and in view of the change in circumstance, no one is preventing Mr.K.Perumalsamy from appearing and hence, there is no need to transfer or necessity to transfer the suit, when it is almost in its final stage. The petitioner has now trying to take advantage of his own wrong and wanted the suit to be transferred from this court where almost everything is over. 8.Heard Mr.M.Ajmal Khan, the learned counsel appearing for the petitioner and Mr.T.V.Sivakumar, the learned counsel appearing for the first respondent. 9.The appointment of the Advocate Commissioner, his visit to the suit property along with surveyor and subsequent verbal duel, which leads to registration of a criminal case, on the file of the Devakottai Police Station, have not been disputed by the first respondent. 10.It is also not disputed that passing of resolution by the learned Members of the Bar Association, Devakottai, resolving that none of the https://hcservices.ecourts.gov.in/hcservices/ 3 Advocates from the said Sivagangai District, should appear for the petitioner before the learned Subordinate Court, in the suit. 11.It is manifest that the petitioner, who is the second defendant in the suit, has come forward with this petition seeking the relief of transfer on the ground that none of the Advocate from Devakottai Bar Association, is appearing on her behalf to defend the suit. 12.Mr.T.V.Sivakumar, the learned counsel for the first respondent, while advancing his argument, has produced the certified copy of the 'B' Diary relating to the suit in O.S.No.58 of 2009 maintained on the file of the Subordinate Court, Devakottai, containing various proceedings on various dates. It appears from the certified copy of the 'B' Diary that on 6.9.2011 one Mr.K.Perumalsamy, the learned counsel seems to have been entered appearance through vakalath on behalf of the petitioner. 13.It is obvious to note here that Mr.K.Perumalsamy, the learned counsel appearing for the second defendant, has been continuing his appearance till date. He has been appearing and prosecuting the suit in O.S.No.58 of 2009 on the file of the learned Subordinate Court, Devakottai and that in view of change in circumstance, no one is preventing, Mr.K.Perumalsamy from appearing on behalf of the petitioner. 14.This court has carefully perused the averments of the affidavit filed by the petitioner in support of this petition and the averments of the counter affidavit filed by the first respondent, being the plaintiff in the suit O.S.No.58 of 2009. After hearing, Mr.M.Ajmal Khan, the learned counsel for the petitioner and Mr.T.V.Sivakumar, the learned counsel for the first respondent, this court strikes a balance and finds the balance of convenience in favour of the first respondent and also finds that the reasons assigned in the affidavit, filed in support of the petition, do not sound much. The disinclination of her erstwhile counsel in making his appearance, in view of the resolution passed by the Bar Association of Devakottai, is not a valid ground to transfer the suit. 15.During the course of his argument, Mr.M.Ajmal Khan has averted to that the said resolution passed by the Members of the Bar Association, Devakottai, preventing the Members of the Bar from making appearance on behalf of the petitioner is absolutely wrong and illegal, in view of the decision of the Apex Court, in the case of Kulwinder Kaur Alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and others, [(2008)3 SCC 659]. In this decision, the Division Bench of the Apex Court, in paragraph 21 has held that:- "So far as the power of transfer is concerned, Section 24 of the Code empowers a High Court or a District Court to transfer inter alia any suit, appeal or other proceeding pending before it or in any court subordinate to it to any other court for trial and disposal. The said provision confers comprehensive power on the court to transfer suits, appeals or other proceedings "at any stage" either on an application by any party or suo motu. 16.In paragraph 22, it has been held that:- "Although the discretionary power of transfer of cases cannot be imprisoned within a straitjacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that the power to transfer a case must be exercised with due care, caution and circumspection. 17.In paragraph 23, it has also been held that:- "Reading Section 24 and 25 of the Code together and keeping in view various judicial pronouncements, certain broad propositions at to what may constitute a ground for transfer have https://hcservices.ecourts.gov.in/hcservices/ 4 been laid down by courts. They are balance of convenience or inconvenience to the plaintiff or the defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on the points involved in the suit; issues raised by the parties; reasonable apprehension in the mind of the litigant that he might not get justice in the court in which the suit is pending; important questions of law involved or a considerable section of public interested in the litigation; "interest of justice" demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering the question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive. If on the above or other relevant considerations, the court feels that the plaintiff or the defendant is not likely to have a "fair trial" in the court from which he seeks to transfer a case, it is not only the power, but the duty of the court to make such order." 18.While speaking for the Division Bench of the Apex court, His Lordship Hon'ble Mr.Justice C.K.Thakker has made reference to the decision in Maneka Sanjay Gandhi v. Rani Jethmalani reported in (1979)4 SCC 167. In paragraph 2 of the above cited decision, the Apex Court has held that:- ".2.Assurance of a fair trial is the first imperative of the dispensation of justice and the central criterion for the court to consider when a motion for transfer is made is not the hypersensitivity or relative convenience of a party or easy availability of legal services or like mini grievances." 19.Besides this, Mr.M.Ajmal Khan, the learned counsel for the petitioner has also placed reliance upon, an another decision, in A.S.Mohammed Rafi vs. State of Tamil Nadu, rep by Home Dept. & others, [2011(1) CTC 602]. In this case, His Lordship Hon'ble Mr.Justice Markandey Katju, while penning down the judgment on behalf of the Division Bench of the Apex Court, in paragraph 32, has held as follows:- ..32.Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer to defend no matter what the consequences, and a lawyer who refuses to do so is not following the massage of Gita." 20.This court has given careful consideration to the decision in Kulwinder Kaur Alias Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and others, [(2008)3 SCC 659] as well as A.S.Mohammed Rafi vs. State of Tamil Nadu, rep. by Home Dept. & Others, [2011 (1) SCC 602]. Having https://hcservices.ecourts.gov.in/hcservices/ 5 regard to the factual situations narrated in the above cited decisions, this court finds all those decisions are not made applicable to the facts and circumstances of the instant case on hand. 21.As rightly submitted by Mr.T.V.Sivakumar, the learned counsel for the first respondent, though the learned Members of the Devakottai Bar Association, have resolved that none of the Advocates from the said Bar should appear for the petitioner, as it appears from the entries of 'B" Diary, one Mr.K.Perumalsamy seems to have been entered appearance on behalf of the petitioner. From 6.9.2011 till date, he has been making his appearance and prosecuting the suit O.S.No.58 of 2009. 22.It is not the case of the petitioner that Mr.K.Perumalsamy, the learned counsel has been prevented by other Bar Members from making his appearance, on behalf of the petitioner. It is admitted that Mr.K.Perumalsamy has continued his appearance without any hindrance. Therefore, the alleged resolution will not cause any trammel or impediment in the progress of the trial of the suit. From the above circumstances, the petitioner cannot put blame on the resolution passed by the learned Members of the Bar Association, Devakottai. 23.It also appears from the entries of 'B' Diary that on 13.09.2009, a proof affidavit was filed by the plaintiff, who is first respondent herein and the same was treated as chief examination of PW1. It also appears that on the same day itself, Exs.A1 to A26 were marked and for the cross examination of PW1, the case stood posted on 14.09.2011. On 15.09.2011, as already discussed, a memorandum was filed by the first respondent/plaintiff to exonerate the first defendant in the suit, as an unnecessary party. Accordingly, the memorandum was recorded and the first defendant was ordered to be exonerated. Now, the first respondent, being the plaintiff in the suit, is in the box to be cross-examined by the petitioner. At this stage, this court had granted interim stay, at the time of admission of the transfer petition. The above facts would go to show that the Advocates' boycott and so-called resolution will not however come on the way of progress of the trial. Hence, the ground of passing of the resolution by the learned Members of the Bar Association, Devakottai, is not a valid ground seeking for transfer of the suit from the file of the learned Subordinate Court, Devakottai. 24.It is significant to note here that the petitioner has not come froward with any specific allegation against the learned Subordinate Judge, Devakottai. When such being the case, the interest of justice, does not warrant to transfer the suit in O.S.No.58 of 2009 from the file of the learned Subordinate Judge, Devakottai. 25.On the other-hand, as discussed earlier, this court, while disposing the writ petition in W.P.No.2080 of 2009, dated 20.01.2011 has specifically directed the learned Subordinate Judge, Devakottai, to decide the suit O.S.No.58 of 2009 purely on merits, as expeditiously as possible, within a period of four months from the date of receipt of the copy of the order. Admittedly, the suit has not been disposed of, within the stipulated period, as directed by this court, in the said order. It is also not brought to the notice of this court, as to whether any extension of time, has been obtained by the learned Subordinate Judge, Devakottai, for the disposal of the suit. 26.While advancing his argument, Mr.T.V.Sivakumar, the learned counsel for the first respondent, has placed reliance upon the following three decisions:- 01. Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd., [(1999)1 SCC 37]. https://hcservices.ecourts.gov.in/hcservices/ 6 02.Rajendran vs. The Nagercoil Municipality, [1995(II) CTC, 130]. 03.Shiv Kumari Devendra Ojha vs. Ramajor Shitla Prasad Ojha and others, [AIR 1997 SC 1036]. 27.In the first decision, viz., Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd., [(1999) 1 SCC 37], the appellant had filed the suit for recovery of possession of a building before the Additional District Judge. During the pendency of the suit, he had filed an application under Order 12 Rule 6 CPC for pronouncing of judgment on the basis of certain admissions in the written statement. The respondent being the defendant therein had filed objections to the same. Meanwhile, the Delhi Bar Association had passed a resolution, dated 15.05.1998 calling for the boycott, by all its members, of the Court of the Additional District Judge. When the application under Order 12 Rule 6, came up for arguments on 21.05.1998, the advocate for the defendant, without putting in an appearance, filed an unusual application under Section 151 CPC stating that due to the Bar Association resolution, he was bound not to appear, and seeking transfer of the case "suo motu" by the Additional District Judge. That petition was dismissed on the ground that there was no provision under Section 151 CPC for transfer of cases. The defendant then filed a revision petition before High Court, which entertained the same and stayed proceedings before the trial court. The appellant/plaintiff also entered appearance and had submitted that he had no objection to the case being transferred. The High Court, however, did not pass any order and adjourned the matter several times. On 10.09.1998 the defendant filed civil miscellaneous petition again seeking transfer of the case from the learned Additional District Judge. In that event, the High Court is pleased to allow the revision. The basis for this new application was a newspaper description of a disgraceful scene in the court of Additional District Judge. The Secretary of the Delhi Bar Association had made a shouted demand that the Judge stop working. The Judge did not stop work and the Secretary then hurled abuse in filthy language at him. Litigants present had protested. The High Court responded merely by calling for the "comments" of the ADJ, about the transfer application and posted the revision petition to January 1999. Under this circumstance, the plaintiff/appellant has filed the present SLP challenging the High Court's order entertaining the revision petition and also last adjournment. On hearing both sides, the Division Bench of the Apex Court has held in paragraph 2 that:- "Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear. But unfortunately this case reflects apathy on the part of the High Court in affording such protection to a judicial functionary who resisted, though legal means, a pressure strategy slammed on him in open court." 28.While penning down the judgement on behalf of the Division Bench, His Lordship Hon'ble Mr.JusticeK.T.Thomas, in paragraph 21, has held as follows:- "...21.Shri Arun Jaitley, learned Senior Counsel, made a plea before us that in view of all what happened and also in the light of the fact that https://hcservices.ecourts.gov.in/hcservices/ 7 the appellant too has no objection to change the court, the case may be allowed to be transferred to another court. We have considered the aforesaid plea in all seriousness. We do not come across any valid ground whatsoever for a change of court. A change of court is not allowable merely because the other side too has no objection for such change. Or else, it would mean that when both the parties combine together they can avoid a court and get a court of their own choice. We are not disposed to give such an option to the parties. We therefore, refrain from acceding to the said plea made by Shri Jaitley. 29.In the second decision viz., Rajendran vs. The Nagercoil Municipality [1995(II) CTC 130], a transfer petition was filed under Section 24 of the Civil Procedure Code, on ground of Advocates' boycott and to enable engagement of outside Advocate at transferred place. Under this circumstance, the learned Single Judge of this Court has held that:- "Now the transfer sought for is only on the ground that the advocates at Nagercoil and Kuzhithurai are boycotting the courts and they are not permitting any outside Lawyers to appear in the courts. The provisions for filing and transfer in the High Court is made available only in cases where the relevant sub-Courts are closed or are not functioning. Such a condition cannot be said to prevailing this case. The sub-courts are very much kept open and functioning and it is only the Lawyers in the Southern districts, who are avoiding appearance before courts by adopting the measure of boycott. It is not as though the courts are not passing orders. As a matter of fact, in applications moved by the parties and also by the counsel in cases at times in Chambers in some places, Courts have been passing orders. Therefore, refusal of the lawyers to appear and plead before courts is no ground or reason to contend legitimately that the sub-courts or a particular court in the districts is not functioning. If the transfer is to be ordered on this ground, I am of the view, then, this court will not only be opening the flood gates for such transfer applications, but encouraging and putting its seal of approval over extra legal methods adopted on extraneous grounds I can take judicial notice of the fact that the entire Bar Members throughout the southern districts from Madurai to Kanyakumari are boycotting the courts for the past three months and refusing to appear and plead before courts through the Presiding Officers are available and sitting and courts as such are functioning and do not remain closed. In such situation, I do not think any transfer can be ordered on the ground now put forth." 30.In the third decision viz., in the case of Shiv Kumari Devendra Ojha vs. Ramajor Shitla Prasad Ojha and others, [AIR 1997 SC 1036], a transfer application was filed on the ground that no advocate was available at place where case was pending. The ground, which was put forth for transfer was held not tenable. 31.On coming to the instant case on hand, as rightly observed by this court, in the decision in Rajendran vs. The Nagercoil Municipality, [1995 (II) CTC 130], this petition has also been filed on the ground of Advocates' Boycott. 32.This court has carefully considered all the relevant facts and circumstances of the case. In fact, the suit O.S.No.58 of 2009 is in part heard stage and the second respondent being the plaintiff is in box and he is to be cross-examined by the petitioner. The boycott staged by the https://hcservices.ecourts.gov.in/hcservices/ 8 learned Members of the Bar Association of Devakottai and the resolution passed that no one should appear for the petitioner before the learned Subordinate Judge, Devakottai, is