- (1.) This is an application under section 24 of the Code of Civil Procedure in which the petitioner who is the defendant no.6 before the Trial Court being the Civil Judge, Junior Division, 2nd Court, Arambagh, District Hooghly in Title Suit no.93 of 2014 has prayed for an order of transfer from Arambagh to any other Court within the district of Hooghly that is at Chandannagore or at Srirampur. The ground of filing for such application as I get from the application itself is that the plaintiff opposite party no.1 is one senior advocate of Arambag Court and as such this petitioner is not getting any legal assistance from any advocate at Arambag. The learned counsel Mr. Debjit Mukherjee, has referred to an unreported decision of Punjab and Haryana High Court (Nidhi Sharma-Vs-A.N. Bhardwaj) as decided on October 11, 2000 wherein in paragraph 11 the learned Single Judge of the High Court observed that Mr. A. N. Bhardwaj, being one senior advocate practicing at Ludhiana, the case of the person be transferred from Ludhiana Court to some other Court in Chandigarh.
(2.) On behalf of the opposite party nos. 5 to 9 Mr. Srijib Chakraborty, the learned advocate submitted that his clients are also facing the same problem on the same ground. Mr. Mukherjee has filed the searching report dated 30.07.2016 to satisfy this Court that the advocate who filed the case on behalf of his client retired with effect from 25.02. 2016 and that the learned advocate representing the defendant nos. 1 to 5 also retired on 20.08.2015. Mr. Mukherjee has also filed another searching slip dated 04.08.2016 to convince this Court that the order of stay as granted by this Court on 22.06.2016 was duly communicated to the Court below. He further contended that even after receipt of the stay order the learned Trial Court was pleased to allow one put up petition which will be apparent from the order dated 28.06.2016.
(3.) In counter to all theses, Mr. Partha Sarathi Bhattacharyya, the learned advocate appearing on behalf of the opposite party nos.1 to 4 submitted that the claim of the petitioner that he is not getting any advocate is one misnomer and is mere apprehension. He further submitted that mere apprehension cannot be a ground for transfer of one suit from one Court to another Court. He cited decision of the Apex Court as Shib Kumari Devendra Ojha-Vs-Ramajor Shitala Prasad Ojha & Ors., 1997 AIR(SC) 1036 wherein the Apex Court declined to accept the contention that one transfer application is maintainable on the ground of non-availability of one advocate. Apparently to say that this case cannot match with the facts and circumstances of this case as in that case before the Court of the Apex Court the petitioner aggrieved that he will bear the expenditure of transfer and stay of the petition whenever she attends Court and naturally that influence the Apex Court to arrive such a decision. In that decision, the transfer was asked for from Uttar Pradesh to Gujarat and in the present case before the floor of this Court the transfer has been prayed within the same district. Mr. Bhattacharya has also cited another decision of a Single Judge of Gujarat High Court, as Rajkot Cancer Society-Vs-Municipal Corporation, Gujarat, 1988 AIR(Guj) 63 where the Single Judge held that mere apprehension or assumption is not an actual cause of transfer of a proceeding unless the case before the Court. The apprehension of the petitioner or the opposite party nos.5 to 9 is not unfounded in view of the fact that even though one stay order was granted by this Court. The learned trial court was pleased to put up the record knowing fully well regarding the stay order of the Court not only that the trial court even passed order on 28.06.2016 violating the order of this Court. Thus, the Court is not unmindful of searching slip as filed by Mr. Mukherjee in support of the claim of the petitioner.;