- (1.) The petitioners were seeking transfer of Title Suit No. 80 of 2014 from Civil Judge (Senior Division) 2nd Court, Barasat, to an appropriate Court at Alipore under Section 24 of the Code of Civil Procedure, 1908.
(2.) Petitioners contended that, an appeal arising out of an injunction application was transferred from the judgeship of Barasat district to the judgeship of Alipore district on the application of the opposite party by an order dated July 1, 2013 passed in C.O. 1961 of 2013. The petitioners prayed for transfer of the suit which gave rise to the injunction petition on the same principles as that of the order dated July 1, 2013. According to the petitioners, the same fact scenario and the apprehensions which warranted transfer of the appeal prevailed so far as the suit was concerned. In the interest of Justice the suit was also required to be transferred out of the judgeship of Barasat. On behalf of the opposite party it was contended that, the appeal transferred to Alipore Court was disposed of on April 23, 2014. There was no lis pending at Alipore. The opposite party applied for transfer of the appeal on specific apprehensions against the Learned District Judge at Barasat. The opposite party did not have any apprehension as against the learned Trial Judge. The grounds on which a Court transferred a proceeding under Section 24 of the Code of Civil Procedure, 1908 were relied upon from Mulla's Code of Civil Procedure, 16th Edition. No ground for transfer was made out in the petition.
(3.) I have considered the respective contentions of the parties and the materials on record. The suit was for declaration and injunction filed by the opposite party against the petitioners. The opposite party applied for temporary injunction which was granted by the Trial Court on May 17, 2013. Being aggrieved, the petitioners preferred an appeal. In course of the hearing of the appeal the opposite party sought transfer of the appeal by an application under Section 24 of the Code of Civil Procedure, 1908 being C.O. 1961 of 2013. The opposite party narrated incidents in course of hearing of the appeal alleged to have taken place between the learned District Judge and the District Magistrate at Barasat which according to the opposite party gave rise to justifiable apprehensions as to the impartiality of the justice delivery system at Barasat. The learned Judge considering such apprehensions expressed on behalf of the opposite party proceeded to transfer the appeal on the principle that, Justice should not only be done but it should also be seen to be done. That principle was canvassed on behalf of the opposite party at the hearing as would appear from the judgment and order dated July 1, 2013 passed in C.O. 1961 of 2013. The relevant portions of the judgment and order dated July 1, 2013 read as follows: " ..The petitioner is the plaintiff in a suit for declaration and injunction. The property involved in the dispute is popularly known as Nalban Boating Complex. It is not necessary for this Court to go into the merit of this suit at this stage. However, after filing of the suit the petitioner filed an application for injunction and the said application for injunction was contested by the defendants in the suit and ultimately the learned Trial Court allowed the said application for temporary injunction and the defendants were directed not to disturb the petitioner's occupation and lawful actions over the suit property till the disposal of the suit. Being aggrieved by such order of the learned Trial Court, the respondent nos. 2 and 3 filed Misc. Appeal No. 107 of 2013 before the learned Judge, North24-Parganas at Barasat. It appears that the appeal was filed on 22nd May, 2013. On the same day, i.e., on 22nd May, 2013 the petitioner moved an application for adjournment of hearing of the stay application and/or injunction application which was filed by the respondent nos. 2 and 3. It further appears that the petitioner had moved such application as because the petitioner was not furnished with the copies of the documents, which were referred to in the application for stay and/or injunction. There were two applications, in fact, which were filed by the petitioner on 22nd May, 2013. The learned District Judge, North 24-Parganas at Barasat fixed the hearing of the stay application and/or the injunction application on 28th May, 2013 but no direction was given with regard to the two applications which were filed by the petitioner. It also appears from the allegations made in a subsequent application under Section151 C.P.C. filed by the petitioner before the learned District Judge, North 24-Parganas at Barasat that certain incidents took place on 2.5.2013. It has been stated by the petitioner in the said application under Section 151 C.P.C. which appears at pages 165 to 170 of the present application that the District Magistrate of the District concerned was present in Court on 22.05.2013. The petitioner has stated in the aforesaid application that the learned District Judge while sitting in Court had requested the District Magistrate, North 24- Parganas to go to the former's chamber but in spite of repeated requests the District Magistrate, North 24- Parganas continued to remain present in Court. It also appears from paragraph 8 of the said application that the District Magistrate, North 24-Parganas started making submissions before the learned Court concerned whereupon the learned Court requested the District Magistrate, North 24-Parganas to be seated in the Chamber of the learned District Judge. The petitioner has raised a grievance that the District Magistrate, North 24- Parganas/Collector is a party to the proceedings and the learned Court should not entertain such matter in which the party to the proceedings is personally known to the said learned Court. In paragraph 9 of the said application the petitioner has stated that after completion of submissions made by both the parties, the said District Magistrate, North 24-Parganas at the instance of the learned District Judge went to the latter's chamber and the petitioner has felt that such act was not desirable. The petitioner has stated in the said paragraph of the said application that the learned District Judge, North 24- Parganas, should not have entertained the District Magistrate/Collector in such manner in the chamber of the said learned District Judge when the said District Magistrate/Collector is directly or indirectly involved in the matter in dispute and such treatments towards the District Magistrate/Collector have cast a doubt in the mind of the petitioner as to whether the petitioner would get at all justice from the court of the said learned District Judge. The said application under Section 151 C.P.C. was filed on 24.05.2013 with a prayer for adjournment of hearing of the application and grant of time to enable the petitioner to move the High Court. It appears that the Assistant Secretary, Fisheries Department, who described as one of the appellants, has filed a written objection against the said application under Section 151 C.P.C. wherein the deponent of the said affidavit has practically described all the allegations made by the petitioner as false one. The relevant paragraphs in the said affidavit have been verified by the deponent of the said affidavit as true to his knowledge. It appears from one of the Annexures to the said supplementary affidavit that the learned District Judge took up the matter on 28.05.2013 wherefrom it appears that the District Magistrate, North 24-Parganas was indeed present in Court on 22.05.2013 and the learned District Judge concerned had requested him to take his seat in the chamber of the learned District Judge but it also appears from the order dated 28.05.2013 that the learned District Judge had thought it to be a matter of protocol. However, in the said order dated 28.05.2013 the learned District Judge has made certain observations against the petitioner as the learned District Judge has observed that the petitioner had mala fide intention and the aim and object of the petitioner should be treated as unscrupulous trick and strategy and the petitioner has done such act with malfeasant attitude etc. etc. After making such observations against the petitioner, the learned District Judge transferred the Misc. Appeal to the Court of the learned 3rd Additional District Judge at Barasat. It appears that on the very same day i.e., on 28.05.2013, the matter was placed before the learned 3rd Additional District Judge, Barasat and the transferee court fixed the matter on the next day i.e., on 29.05.2013. It further appears from the copy of the order dated 29.05.2013 that on the same day the learned 3rd Additional District Judge, Barasat with the consent of the parties took up both the earlier applications filed by the petitioner but disposed of such applications without passing any order on the basis that the learned Advocate for the appellants had submitted that the appellants are not going to rely upon the documents than what have already been relied upon before the learned Trial Court and the learned 3rd Additional District Judge, Barasat fixed the matter on 10.06.2013. The effect of the order of the learned 3rd Additional District Judge is that the petitioner did not have the opportunity to file any written objection against the application for stay and/or injunction and the petitioner was not furnished with the copies of the documents which were annexed to the application for stay and/or injunction. In spite of such fact, the application had been fixed for hearing on 10.06.2013. The learned senior Advocate appearing on behalf of the petitioner submits that considering the facts and circumstances of this case, the Misc. Appeal concerned should be transferred to any Court of the learned District Judge outside North 24-Parganas. The said learned senior Advocate further submits that in the facts and circumstances of this case, there is a reasonable apprehension in the mind of the petitioner that the petitioner will not get justice from the learned District Judge, Barasat and also the learned Court to which the matter has been transferred by the learned District Judge, Barasat and, therefore, it should be transferred to a competent court of a learned District Judge outside North 24-Parganas. The said learned senior Advocate also submits that justice should not only be done but it should also be seemed to be done. He has cited a judgment reported in l957 AIR(Patna) 198 in support of his contention. The learned Advocate appearing on behalf of the respondents submits that even if it is assumed that the petitioner may have some reasonable apprehension if the matter had been taken up by the District Judge, North 24-Parganas, the petitioner cannot have any grievance if the Misc. Appeal is heard before the learned 3rd Additional District Judge, Barasat. This Court is of the view that the learned senior Advocate for the petitioner has some substance while he contends that the matter has been transferred by the learned District Judge to the Court of the learned 3rd Additional District Judge after the learned District Judge had made those observations against the petitioner and such observations are now before the learned 3rd Additional District Judge of the same district. It is needless to say that the learned 3rd Additional District Judge is within the Judgeship of the learned District Judge, North 24-Parganas. As far as proceedings before the learned 3rd Additional District Judge is concerned, this Court is of the view that the learned 3rd Additional District Judge for ends of justice should have allowed the petitioner to have the copies of the documents which were made annexures to the application for stay and/or injunction and the petitioner should have been given an opportunity to file written objection against such application for stay and/or injunction. Be that as it may, this is not in question as to whether any of the aforesaid learned Courts below i.e., the learned District Judge, Barasat and the learned 3rd Additional District Judge, Barasat does actually have any bias against the petitioner; the question is whether the petitioner, in the facts and circumstances of this case, has a reasonable apprehension in his mind and the further question is whether justice would seem to have been done in the present case if the matter is tried before the said learned District Judge and/or the learned 3rd Additional District Judge. Considering the facts and circumstances of this case, this Court is of the view that keeping in mind the principle that justice should not only be done but it should also seemed to have been done and also the principle that if a party has a reasonable apprehension in his mind that he will not get justice from any particular court the matter should be transferred from that Court to any others competent court ." ;