IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 Tr.P(C).No. 462 of 2011() ------------------------- OS.3/2010 of SUB COURT, SULTHAN BATHERY .................... PETITIONER ------------------------------ P.R.ANILKUMAR,S/O.RAMU,VINOD BHAVAN, AMBALAKUNNU,MEPPADI PO,KOTTAPPADI DESOM, VAITHIRY TALUK,WAYANAD DISTRICT 673 577. BY ADV. SRI.NIRMAL. S RESPONDENT(S): --------------- 1. SAROJINI,W/O.RAMU,VINOD BHAVAN, AMBALAKUNNU,MEPPADI PO,KOTTAPPADI AMSOM DESOM, VAITHIRY TALUK,WAYANAD DISTRICT 673 577. 2. P.R.VINOD KUMAR,S/O.RAMU, VINOD BHAVAN,AMBALAKUNNU,MEPPADI PO, KOTTAPPADI AMSOM DESOM, VAITHIRY TALUK, WAYANAD DISTRICT 673 577. 3. P.R.BABURAJ,S/O.RAMU, VINOD BHAVAN,AMBALAKUNNU,MEPPADI PO, KOTTAPPADI AMSOM DESOM, VAITHIRY TALUK WAYANAD DISTRICT 673 577. 4. P.R.SHAJIKUMAR,S/O.RAMU, VINOD BHAVAN,AMBALAKUNNU,MEPPADI PO, KOTTAPPADI AMSOM DESOM, VAITHIRY TALUK WAYANAD DISTRICT 673 577. 5. P.R.SREEJITH,S/O.RAMU, VINOD BHAVAN,AMBALAKUNNU,MEPPADI PO, KOTTAPPADI AMSOM DESOM, VAITHIRY TALUK WAYANAD DISTRICT 673 577. 6. P.R.ANITHA SIROJ,D/O.RAMU, FLAT NO.B2,ALZA PLAM SPRING BUILDING, NEAR TAGOR CENTENRARY HALL, NAGARA, AMSOM DESOM,EDAKKAD PO,KOZHIKODE DISTRICT 673 032. Tr.P(C)NO.462/2011 2 7. P.R.SYLAJA,D/O.RAMU,ARAYADATHU, KUNDUPARAMBU PO,EDAKKAD AMSOM DESOM. KOZHIKODE DISTRICT 673 032. 8. P.R.RAJEESH,S/O.RAMU,VINOD BHAVAN, AMBALAKKUNNU,MEPPADI PO, KOTTAPPADI AMSOM DESOM,VAITHIRY TALUK, WAYANAD DISTRICT 673 577,P/A.HOLDER O.P.PRAMIL, S/O.K.T.BALAKRISHNAN,OLIYAMPARAMBATH, PO ERANNIKKAL,VENGALY,KOZHIKODE 673 001. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Tr.P(C)NO.462/2011 APPENDIX PETITIONER(S) EXHIBITS ANNEXURE A1 TRUE COPY OF THE PLAINT IN OS 3/2010 ANNEXURE A2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE IST DEFENDANT DATED 12/3/2010 ANNEXURE A3 TRUE COPY OF THE JUDGMENT DATED 21/10/2011 IN OP 2866/2011 ANNEXURE A4 TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE PETITION TO REMOVE THE CASE FROM THE LIST ANNEXURE A5 TRUE COPY OF THE AFFIDAVIT FOR REFERRING THE MATTER U/S 89 OF THE CODE OF CIVIL PROCEDURE FOR MEDIATION BEFORE THE ADALATH. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- Tr.P.(C) No.462 of 2011 -------------------------------------- Dated this the 20th day of December, 2011. ORDER Petitioner is the 1st plaintiff in O.S.No.3 of 2010 of the court of learned Sub Judge, Sulthan Bathery. That is a suit for partition filed by petitioner and another claiming separate possession of the 2/9 shares he claimed in the suit property. According to the petitioner, there is an interim order against alienation of the suit property. A suit filed by the 4th respondent/4th defendant for a decree for prohibitory injunction is pending the same court as O.S.No.480 of 2011. The 1st respondent was sought to be examined on commission. Petitioner filed I.A.No.1230 of 2011 for adjournment of examination beyond the onam vacation of that year. Since that relief was not granted petitioner/1st plaintiff and 2nd plaintiff approached this Court with O.P.(C) No.2866 of 2011 and this Court issued certain directions as per Annexure-3, judgment dated 21.10.2011. The case was listed and thereafter, sent to the Adalath to explore possibility of a settlement. Grievance of petitioner is that learned Sub Judge, in the course of mediation, though he was not heading the mediation and had no occasion to be there, had a fairly long discussion with the 5th respondent/5th defendant. Hence petitioner believes that learned Sub Judge has some prior acquaintance with the 5th respondent/5th defendant. Tr.P(C)No.462/2011 2 2. Learned counsel submits that there was undue haste shown by the learned Sub Judge to dispose of the suit. It is pointed out by the learned counsel that the case was posted in th Adalath only for a day and though both sides had agreed to produce 1st respondent/1st defendant whose presence was required for settlement, since the case was posted in the Adalath only a day, that did not work out. Learned counsel submits that petitioner has genuine apprehension as to a fair decision in the suit. 3. For the mere reason that learned Sub Judge in the course of mediation talks in the Adalath had a discussion with the 5th respondent/5th defendant (assuming so) and as petitioner alleges for a fairly long time, I cannot conclude that 5th respondent is acquainted with the learned Sub Judge. If learned Sub Judge has any embarrassment in conducting the trial, he will necessarily address learned Sub Judge address the learned District Judge on the administrative side and request for a transfer of the case. Merely because petitioner states that he is apprehensive about getting a fair decision, the case cannot be transferred in accordance with his wish. I must bear in mind the stigma likely to be caused on the Sub Judge when on such allegations an order of transfer is made by this Court. Such orders are to be passed only in cases where this Court is satisfied of a strong possibility of a party not likely to get justice if the case is not transferred, it will occasion a failure of justice. I am not Tr.P(C)No.462/2011 3 satisfied that any such situation exists in this case. The judicial system is, and cannot be feeble so that whenever somebody speaks of an apprehension the case is to be transferred. I do not find any justifiable reason to order transfer. 4. Learned counsel submits that the case is posted on 05.01.2012. If parties are optimistic about a settlement if the matter is sent to the Adalath it is open to them to make a request in that regard before learned Sub Judge. With the above direction this petition is disposed of. THOMAS P.JOSEPH, Judge. cks